TN 2 (09-14)

Citations:

Regulations - 20 CFR 404.1594(c)(3)(v), 416.994(b)(2)(iv)(E) and 416.994a(d)

IMPORTANT: These instructions incorporate policy and procedure for both electronic continuing disability review (eCDR) and eCDR exclusion (paper) cases when there is a lost or destroyed folder involved. If the comparison point decision (CPD) folder is a certified electronic folder (CEF), these instructions do not apply.

A. Background for reconstruction of folders

When a CPD folder is lost or destroyed, the DDS must determine if CPD folder reconstruction is necessary. Although reconstructing lost or destroyed CPD folder cases is costly, the erroneous continuation of medical disability benefits to an individual who is no longer disabled but continues in pay because the CPD medical folder cannot be found is more costly. It is imperative that the DDS makes an appropriate determination to reconstruct a folder.

B. When not to reconstruct a prior folder

The DDS will not pursue folder reconstruction when a continuance determination can be made based on current evidence (i.e. beneficiary currently meets or medically equals a listing or can be a current medical vocational continuance case).

NOTE: If the CDR is an age 18 redetermination, CPD folder reconstruction is not necessary.

C. Policy for determining when to reconstruct a prior folder

Reconstruction of the prior evidence may be appropriate when the DDS discovers that some or all of the evidence used in making the CPD is unreadable, unintelligible, or missing (e.g., a piece of evidence referred to in the rationale is no longer in file).

To determine if it is appropriate to reconstruct a folder, the DDS will consider the potential availability of old records in light of their age, whether the source of the evidence is still in operation; and whether reconstruction efforts will yield substantial evidence of the basis for the most recent favorable medical decision.

The DDS must document a reason for not reconstructing a prior folder. The documentation can be on Form SSA-5002 or similar document. For more information, see DI 28035.025B.

D. Procedures for reconstructing a prior folder

When DDS cannot make a continuance determination based on current medical evidence, attempt to reconstruct the prior folder.

1. CPD date is known

Reconstruct portions of the missing file used in the CPD and relevant to the most recent favorable determination (e.g., work history, medical records from treating sources, school records, consultative examinations, and vocational evidence).

a. Form SSA-3368 (or SSA-3820) in folder, or equivalent in eView

• contact all medical and other relevant sources prior to the established CPD date; and

• determine if the reconstructed records adequately allow for consideration of the Medical Improvement Review Standard (MIRS) DI 28005.001.

If the reconstructed records adequately allow for consideration of the MIRS:

• prepare a determination; and

• enter list code 256 (Lost Folder Case) in item 34 of Forms SSA-832/833 (Continuance or Cessation of Disability or Blindness Determination and Transmittal – Title XVI/Continuance or Cessation of Disability or Blindness Determination and Transmittal - Title II).

If a continuance is appropriate, the favorable determination becomes the CPD date for the next CDR.

To reconstruct medical records adequately, follow the documentation procedures in the following POMS sections:

• DI 22501.001 Disability Case Development for Medical and Other Evidence;

• DI 28030.020 Development of Medical Evidence.

NOTE: In some cases, particularly in mental impairment cases where a longitudinal history could be helpful, you may secure additional medical evidence from before or after the CPD date.

b. SSA-3368 (or SSA-3820) or eView equivalent is not in folder

If Form SSA-3368 (or SSA-3820) is not in the folder, prepare an assistance request (AR) to the FO asking them to obtain a Form SSA-3368 (or SSA-3820). The AR must contain:

• the CPD date;

• instructions on the development needed;

• instructions on the forms needed; and

• the applicable time period(s).

You should allow the FO 30 days to obtain the information requested.

NOTE: For instructions on preparing an AR in an eCDR case, see DI 81020.100.

2. CPD date is unknown

If the beneficiary is not currently disabled and the CPD date is not established:

• document the file on an SSA-5002 (Report of Contact) explaining why the CPD date is not established; and

• prepare a continuance according to the instructions in DI 28035.025.

E. MIRS and reconstructed evidence

In order to apply the MIRS to reconstructed evidence, there should be adequate evidence from the time of the CPD so that the basis for the CPD is clear.

1. Medical records can be adequately reconstructed

If you receive adequate evidence to reconstruct the medical records:

• prepare a determination under the MIRS (for adult cases, see DI 28005.005 and for title XVI child cases, see DI 28005.025);

• enter list code 256 (Lost Folder Case) in item 34 of the SSA-832/833-U3 (Continuance or Cessation of Disability or Blindness Determination and Transmittal – Title XVI/Continuance or Cessation of Disability or Blindness Determination and Transmittal – Title II).

If a continuance is appropriate, the favorable determination becomes the CPD date for the next CDR.

2. Medical evidence cannot be adequately reconstructed

If you do not receive adequate evidence to reconstruct the folder and apply the MIRS, follow the instructions in DI 28035.025.

F. References

DI 22501.001 Disability Case Development for Medical and Other Evidence

DI 28005.001 Legal Standard for Determining If Disability Continues

DI 28005.005 The CDR Evaluation Process – Title II and Adult Title XVI Beneficiary - General

DI 28005.025 The CDR Evaluation Process – Title XVI Child - Summary Chart

DI 28030.020 Development of Medical Evidence

DI 28035.025 Disability Determination Services (DDS) Reconstruction of Prior Folder Not Possible

DI 81020.100 Electronic Assistance Requests (AR)