TN 3 (04-12)

A. Content of the pre-determination notice

1. Legal requirements and processing

The written pre-determination notice must include specific information to be valid, including a brief and non-technical description of the evidence that we based the proposed adverse action. The Disability Determination Services (DDS) must:

• Inform the beneficiary in writing (by mail) of the proposed adverse action (i.e., cessation). Contact with the primary beneficiary provides advance notice for all auxiliaries (i.e., family members entitled on the beneficiary’s Social Security number) who are living with him or her; therefore, we do not require a separate notice for auxiliaries who are living with the beneficiary. To inform auxiliaries not living with the beneficiary, see DI 28080.020.

• Prepare a notice addressing each of the elements described in DI 28080.010B. in this section.

• Give the beneficiary 10 days from receipt of the notice, plus five days for mailing time to respond in writing. If the beneficiary wishes to obtain and submit additional evidence that may be material in support of his or her claim, grant an additional 10 days to present the evidence.

  NOTE: Do not follow up with a beneficiary who fails to respond within the second 10-day period. However, there may be unusual circumstances that require the DDS to extend the response time beyond the second 10-day period. These instances should be rare and granted only when, in your judgment, reasonable circumstances precluded the beneficiary from obtaining the evidence (e.g., the doctor is out of town for an extended period).

• Do not process a cessation determination before the 15 days expire, unless you receive a written statement from the beneficiary that he or she is not submitting any additional evidence. If the beneficiary responds in writing stating that he or she will not furnish any additional statements or evidence, place the beneficiary's statement in file and process the cessation determination immediately.

2. References

• DI 27540.025 Title II-Only Pre-determination Notice Previously Mailed – Final Decision Notice Instructions

• DI 40515.020 Due Process Notification in Title II and Title XVI Cases

B. Pre-determination notice elements

1. Preparation of the pre-determination notice

Prepare the pre-determination notice.

• Send a copy of the letter to the beneficiary’s appointed representative and representative payee, if the beneficiary has one.

• Refer to the notice language in DI 28080.015 as an additional guide to ensure that we provide adequate due process before we make an adverse determination (i.e., cessation).

NOTE: A representative payee whom is not the legal guardian of an incompetent adult is entitled to receive the same pre-determination notice as the beneficiary. We must send a modified copy of cessation notices to the representative payee (see DI 28095.040A.).

2. Addressing the pre-determination elements

Address each of the elements in the following list in every pre-determination notice:

1. Tell the beneficiary that the DDS assist the Social Security Administration in reviewing his or her case to determine whether he or she is unable to engage in substantial gainful activity (SGA) because of a medical impairment.

2. Notify the beneficiary that based on evidence now in his or her file, it appears that the DDS must make a determination whether he or she has the ability to engage in SGA as of (month and year).

3. List evidence sources considered in making the most recent favorable medical determination or decision (i.e., comparison point decision information).

   • Identify medical sources by name and date.

   • Identify non-medical sources (e.g., school guidance counselors, welfare departments, vocational rehabilitation agencies, day treatment facilities, sheltered workshops, social workers, and third party lay evidence) as evidence sources, but do not identify by the individual’s name.

   • Identify non-medical sources by position and organization, (e.g., Vocational Rehabilitation Counselor, Department of Rehabilitation Services, report of MM/DD/YYYY).

   • Identify third party lay evidence (e.g., family members, neighbors, coworkers) under the list of reports using the following statement: “Information from other people who know about your health.” If the lay evidence is the only evidence, omit the word “other.”

   • List reports in paragraph form if saving space becomes a consideration, or if you use more than three reports.

4. Include a brief statement describing the basis for the most recent favorable medical determination or decision and the reason for the current medical review.

5. List evidence sources considered for purposes of the continuing disability review (CDR).

6. Provide a brief statement outlining the reasons that the beneficiary gave for believing that he or she is still disabled, and whether or not he or she still engages in SGA.

7. State the basis for the cessation determination. Include the appropriate decision paragraph from NL 00708.100.

8. Discuss the findings of the CDR process.

   • Describe current medical severity.

   • Discuss medical improvement (MI) or exceptions to the MI standard and functional capacity (ability to work).

   • Provide a brief statement, if appropriate, outlining the past job the beneficiary can do; or a statement that, although the beneficiary cannot do past work, considering age, education, and past work experience, he or she has the capacity to do other kinds of work requiring less physical or mental demands.

9. Explain that we are writing to give the beneficiary an opportunity to respond and present any additional evidence for our consideration if the beneficiary continues to believe he or she is still unable to work because of the impairment.

   NOTE: Explain that he or she must mail any additional evidence to the DDS, and show the DDS address. (DDS may include the name and phone number of the individual to contact at the DDS and enclose an envelope with the DDS's return address.)

10. Indicate that the DDS will make a cessation determination, unless we hear from the beneficiary within 10 days from receipt of the notice. Stress the importance to the beneficiary to let us know within 10 days if he or she wants to submit a statement or evidence (even if he or she needs more time to submit it).

11. Explain that when we make a cessation determination, we notify the beneficiary and auxiliaries, if applicable, in writing whether we still consider the impairment(s) disabling. Also, advise him or her that if the impairment is not disabling, he or she will be eligible to receive benefits for the month that the impairment severity ceased and for the following two months.

    However, in an Extended Period of Eligibility (EPE) case, disability might have ceased previously because of SGA and the person received benefits for the month of cessation and the following two months. If this is the case, advise the individual that any benefits he or she receives will end with the month that the impairment is not disabling.

    NOTE: In suspended prisoner or inmate cases, delete language concerning receipt of benefits or payments. When we suspend payments due to confinement, and disability ceases, modify the notice to explain that the “period of disability” will exist for the current month and the following two months. See GN 02607.000, Prisoner Provisions Title II.

    If title II prisoner cases ceased because we cannot consider the original impairment disabling, incorporate the message in Rider W. See NL 00705.540, Prisoner Model Letter “W” – Felony and Non-Felony Related Impairments – DIB, CDB, DWB.

3. References

• DI 23501.025 Prisoner Notice Finder Chart

• NL 00705.540 Prisoner Model Letter “W” – Felony and Non-Felony-Related Impairments – DIB, CDB, DWB