I-3-2-11.Referral to the Medical Support Staff (MSS)

Last Update: 6/26/15 (Transmittal I-3-118)

A. When to Refer to MSS

The analyst may refer a case to MSS in the Office of Appellate Operations when the Appeals Council (AC) needs:

  • Medical advice or an interpretation of clinical findings or test results in the medical evidence;

  • Medical advice about conflicts in the medical evidence;

  • Medical advice about specific testing, medical advice regarding multiple consultative examination (CE) findings, or medical advice on the type of CE that needs to be requested on remand;

  • Medical advice as to whether the severity of the claimant's impairment(s) meets or equals a listing; or

  • A medical assessment of the claimant's ability to perform work related activities.

B. How to Refer a Case to MSS

1. Prepare Copies of Medical Evidence (When Applicable)

In certain circumstances, the analyst must prepare copies of the relevant medical evidence before preparing an MSS referral form in the Appeals Review Processing System (ARPS). Copies of the relevant medical evidence are necessary when:

  • the case is paper; or

  • the claimant filed a subsequent application.

When there is a subsequent application and:

  • The current claim(s) file is paper, the analyst will send paper copies of the applicable medical evidence from the subsequent claim(s) file with the other medical evidence from the current paper claim(s) file to MSS.

  • The current and subsequent claim(s) file are electronic, the analyst will electronically copy the documents from the subsequent file to the file currently pending with the AC (specifically identifying the documents in the Pertinent Factors or Remarks text box and adding a “CC” to show the information was copied from a subsequent file).

  • The claim(s) file is electronic but the subsequent application claim(s) file is paper, the analyst will consult with the branch chief to determine the most efficient process of forwarding all the relevant information to MSS.

2. Create an ARPS Diary

The analyst will create a “New MSS Referral Diary” in ARPS, specifically:

  • Indicating the period at issue;

  • Identifying only the body system(s) to be evaluated by the MSS consulting physician;

  • Entering specific instructions in the “Pertinent Factors” text box, including the listing(s) and body system(s) the MSS consulting physician should analyze;

  • Discussing relevant medical history, records, findings, examinations, or tests in the “Pertinent Factors” text box, including specific references (by exhibit and page number) to relevant objective evidence and a summary of relevant oral testimony;

  • Noting in the “Pertinent Factors” text box that paper copies of evidence have been forwarded to MSS (when a paper file is involved); and

  • Completing the “Medical questions or problems” and “Remarks” sections with adequate specificity.

NOTE:

Do not abbreviate words in an MSS referral. For example, the abbreviation “MS” could mean mental status, musculoskeletal, or multiple sclerosis.

3. Route Referral

The analyst must route referrals to MSS through the branch chief. The branch chief will ensure that the analyst properly completed the referral before forwarding the request to MSS.

NOTE:

The analyst will hold the claim(s) file until MSS responds to the request.

C. Receipt of an MSS Report

1. Receiving the Report

The AC only exhibits an MSS report if the AC issues a decision that relies on the report. Therefore, until the AC evaluates the report and determines the appropriate course of action, the reports are associated with the record as follows:

  • In electronic cases, MSS will upload the report to the Private section of the electronic folder.

  • In paper cases, MSS will route the report to the analyst in a private AC paper folder.

2. Evaluating the Report

MSS reports are advisory in nature. The analyst must consider the entire file, including MSS reports, in making a recommendation to the AC.

3. Proffering the Report

When the AC intends to issue a less than fully favorable decision that will rely on an MSS report, the AC must proffer the MSS report, as set forth in Hearings, Appeals and Litigation Law (HALLEX) manual I-3-8-10. When preparing the interim notice, the analyst will move the MSS report from the Private section to the F section of the claim(s) file and exhibit the report.

NOTE:

When the AC intends to issue a fully favorable decision, it is not necessary to proffer the MSS report. Instead, the analyst will use the instructions in C.4. below to exhibit the evidence.

4. Exhibiting the Report

When the AC relies on an MSS report, the AC must exhibit the report. However, when the AC does not rely on the report, the AC does not exhibit the report or associate the report with the record.

When it is appropriate to recommend that the AC issue a fully favorable decision, and the AC will rely on an MSS report, the AC will not proffer the report. Instead, the analyst will:

  • Keep the MSS report in the Private section;

  • Make a recommendation;

  • Draft an AC decision citing the MSS report using the next appropriate exhibit number, adding the exhibit to the proposed exhibit list (without actually moving or exhibiting the report); and

  • Send the case to the A member through ARPS in the usual manner.

NOTE 1:

However, if the claim(s) file is paper, the analyst will exhibit the document and put it in the F section of the claim(s) file pending AC approval.

On receipt of the recommendation, the A member adjudicator will:

  • Review the recommendation; and

  • If appropriate, agree and send the case to the B member.

NOTE 2:

If the A member does not agree with the recommendation, he or she will follow usual procedures to return the case to the analyst to prepare a different action.

On receipt of the recommendation, the B member adjudicator will review the recommendation. If the B member agrees with the recommendation, he or she will move the MSS report from the Private section and exhibit the document before eSigning the decision.

NOTE 3:

If the claim(s) file is paper and the B member does not agree with the recommendation, he or she will remove the document from the claim(s) file and put it in a private AC file pending discussion with the A member.