TN 2 (02-18)

A. Introduction to EXR medical determination criteria

The EXR medical determination is a two-step process. The claimant requesting EXR must be under a disability and meet both of the following criteria to be entitled to reinstatement:

1. the current impairment(s) must be the “same as or related” to those impairments which formed the basis of the most recent disability entitlement; and

2. must be under a disability using the medical improvement review standard (MIRS) normally used in a continuing disability review (CDR). For more information on the CDR process, see DI 28005.005.

Follow standard procedures for whereabouts unknown (WU) and failure to cooperate (FTC), as necessary per DI 28075.005. Prepare the necessary personalized language for the notice the field office (FO) will issue.

B. Policy for comparison point decisions (CPD)

Use the most recent favorable medical decision as the CPD when making EXR medical determinations. An intervening medical determination that the claimant had medically improved does not prevent a claimant from requesting EXR, as long as their previous entitlement terminated due to substantial gainful activity (SGA) for Title II or earned/unearned income for Title XVI. The disability determination services (DDS) must determine that the claimant is disabled under the MIRS in the month of the EXR request in order for them to qualify for EXR.

Likewise, a claimant can request EXR even if a previous EXR request was a denial. In cases where a previous EXR medical denial exists, the DDS should use the most recent favorable medical determination as the CPD for making the current EXR medical determination.

C. Policy for a “same as or related” determination

The first issue is to determine whether the current impairment(s) is the “same as or related to” to that which formed the basis of the most recent disability entitlement. Unless the evidence clearly indicates otherwise, determine that the alleged impairment(s) is the same as or related to the CPD impairment(s). Do not make a medical improvement determination if the final evidence clearly establishes that the claimant's current impairment(s) is not the same as or related to the prior impairment(s). Deny the EXR request per DI 28057.020B.

NOTE: While the file may indicate the current impairment(s) is the same as or related to the prior entitlement impairment(s), make that determination after all necessary medical development is complete.

1. Basis for CPD determination

In an EXR “same as or related to” finding, it is irrelevant whether the basis of the CPD determination was a listing vs. a residual functional capacity assessment that resulted in a medical-vocational allowance. Consider impairments that were material to a medical-vocational allowance, as well as listing level impairments.

2. Current impairment severity

For EXR “same as or related to” findings, the current impairment must be the same as or related to the CPD impairment in terms of the anatomy or the type of disease involved, but not necessarily in terms of severity. Assess severity after making the “same as or related to” determination. Make the “same as or related” finding first so that the Social Security Administration (SSA) can apply the correct standard of review for the case. When you make the “same as or related” finding before the case receives a full medical evaluation, it does not involve a severity determination.

3. Obsolete CPD listing

An obsolete CPD listing can be applied to EXR cases when considering whether the impairment(s) is the “same as or related.” For example, the fact that the obesity listing (9.09) became obsolete in 1999 is irrelevant to the finding that a current impairment could relate to it.

4. Unable to locate CPD folder

If the claimants’ prior medical file is missing, accept the allegation that the impairment is the same as or related to the CPD impairment(s). For lost folder procedures, refer to subchapter DI 28035.000.

5. Example of when a determination that the current impairment is not the “same as or related” is appropriate

Facts: Ms. Green requests EXR, alleging that she can no longer work because she sustained traumatic brain injury in a recent car accident. The prior medical file indicates that her most recent entitlement to disability benefits ended 18 months ago due to work. The basis for her entitlement at the CPD was thyroid cancer.

Rationale: The disability resulting from a traumatic brain injury sustained in a car accident is not associated with the CPD impairment. Ms. Green's circumstances, therefore, do not meet the criteria for EXR.

D. Procedure for medical evaluation determination

After determining that the alleged impairment(s) is the same as or related to the CPD impairment, conduct a medical evaluation by applying the same MIRS and procedures used in continuing disability reviews, including consideration of new impairments at steps 6 to 8, see subchapter DI 28010.000.

Take the following actions:

1. Determine a claimant is disabled when there is no medical improvement (MI) related to the ability to work, no exceptions to MI apply, and the claimant is not capable of performing SGA. Establish the proper month of entitlement (MOE) in the retroactive period for Title II cases. Refer to DI 28057.015E.

2. When a claimant has experienced MI related to the ability to work and is capable of engaging in SGA, or an exception to MI applies, determine the claimant is ineligible for EXR. Group I exceptions to MI require a finding that the claimant is capable of engaging in SGA before an unfavorable determination can be made.

3. To establish retroactive entitlement to Title II disability benefits, follow the same procedures used to establish an onset date for initial disability claims. Use:

   • the same medical evidence used to determine that the impairment(s) is the same as or related to the CPD impairment(s) and that the claimant is under a disability; and

   • the claimant’s allegation that he or she stopped performing SGA on the Forms SSA-820-BK or SSA-821-BK (Work Activity Report (Self-Employment) or (Work Activity Report (Employee)).

   The FO will indicate the month and year of the EXR request and record the SGA determination including the SGA and non-SGA months for the retroactive period for up to 12-months prior to the date of filing, or from the Benefit Termination Month (BTM), whichever is later on the Form SSA-823 (Report of SGA Determination).

4. Document approval and denial determinations per DI 28057.020. Prepare personalized language to attach to the formal denial notice. The FO and Office of Central Operations (OCO) Program Service Center (PSC) prepares and issues all award and denial notices related to EXR determinations.

NOTE: CDR screen-out policies do not apply to EXR cases.

E. Policy for determining month of entitlement for Title II cases

When the medical determination is favorable, determine the appropriate MOE:

1. If you find that the claimant is under a disability and entitled to EXR in the month of filing for EXR or the following month, you may reinstate benefits retroactively for up to 12 months before the EXR request date, provided the claimant meets all factors of entitlement.

2. Review the “Remarks” section of the SSA-823 for the month and year of the EXR request and the SGA determination, which will indicate the earliest month of non-SGA in the retroactive period up to 12-months prior to the date of filing, or from the BTM, whichever is later. In addition, the FO documents the SSA-823 in remarks, “possible retroactivity exists prior to the month of filing.” If there is SGA in all months of the 12-month retroactive period and in the month of filing, the first possible MOE is the month following the month of filing. The FO documents the SSA-823 with the remarks, “SGA in month of filing. First possible MOE is MM/YY.”

3. Establish the MOE to reinstated benefits. Consider the same evidence used to determine that the claimant is under a disability based on the application of MIRS. The month of entitlement will be the following:

   • the month of the EXR request,

   • the month after the month of the request if there is SGA in the month of filing, or

   • the first month in the 12-month retroactive period that all factors of entitlement are met, whichever is earliest.

     NOTE: We do not pay retroactive Title II disability benefits in EXR cases for any month before January 1, 2001.

4. The MOE can be no later than the month after the month of the EXR request.

5. The claimant cannot have engaged in SGA in the MOE.

6. The claimant must meet the MIRS requirements in the MOE.

7. The MOE cannot be before the BTM of the previous entitlement.

EXAMPLE: Mr. Smith was previously entitled to SSDI for back problems and his earlier entitlement terminated due to work in November 2013 (BTM). In June 2014, Mr. Smith has an accident that reinjures his back and he is unable to work. In September 2014, he decides to file for EXR. When the FO develops the case to send to the DDS, they provide a filing date of September 2014 and note the following SGA and non-SGA months in the retroactive period:

SGA Months: 12/13, 1/14, 2/14, 3/14, 5/14
Non-SGA Months: 4/14, 6/14, 7/14, 8/14, 9/14

The DDS decides that Mr. Smith meets the medical requirements of EXR in the month of filing (September 2014). They then look at the first non-SGA month in the retroactive period, which is April 2014. They determine that though Mr. Smith did not perform SGA, he did not meet the MIRS criteria in April 2014. They then look at the next non-SGA month (June 2014) and determine that Mr. Smith did meet the MIRS criteria in that month. Therefore, the MOE for EXR is June 2014.

F. Policy for determining month of eligibility for Title XVI cases

When the medical determination is favorable, determine the appropriate month of eligibility:

1. Eligibility for reinstated benefits in Title XVI EXR cases begins with the month following the month of the EXR request. There is no retroactive eligibility to Title XVI payments under EXR.

2. We do not pay Title XVI disability benefits in EXR cases for any month before February 2001, the month after the first possible filing month for EXR.

G. Policy for returning to work

When a claimant returns to work during the processing of the EXR request, contact the FO. Returning to SGA during the provisional payment period will result in termination of Title II provisional payments, and adjustment of Title XVI provisional payments. Normally, an EXR medical determination will still be necessary if the claimant did not engage in SGA in the EXR request filing month or the month after the month of filing. If the claimant engaged in SGA in the month of the EXR request and the following month, return the case file to the FO. The FO will issue a technical denial, per DI 13050.005A.2.