SSR 97-2p



PURPOSE: To state the Social Security Administration's (SSA) policy on returning claims pending a hearing before an Administrative Law Judge (ALJ) from SSA's Office of Hearings and Appeals (OHA) to the Disability Determination Services (DDS) for a prehearing case review when new medical evidence is submitted.

CITATIONS (AUTHORITY): Regulations No. 4, sections 404.941, 404.944, and 404.1527(f); and Regulations No. 16, sections 416.1441, 416.1444, and 416.927(f).

BACKGROUND: 20 CFR 404.941 and 416.1441 provide that after a hearing before an ALJ is requested but before it is held, SSA may, for the purposes of a prehearing case review, forward a case to the component of SSA (including a State agency) that issued the determination being reviewed. That component will decide whether the determination may be revised. These regulations provide that SSA may conduct a prehearing case review if:

  1. Additional evidence is submitted;
  2. There is an indication that additional evidence is available;
  3. There is a change in the law or regulation; or
  4. There is an error in the file or some other indication that the prior determination may be revised.

Under these rules, SSA has the authority to conduct a prehearing case review in a wide range of circumstances. However, SSA has generally used its authority to conduct a prehearing case review in limited circumstances, keeping most cases in the hearing process even when a prehearing case review would be permissible under these rules. Now, under an initiative approved by the Commissioner of Social Security in July 1996 as part of SSA's overall goal of process unification, SSA has decided to use its existing regulatory authority to reexamine selected disability claims after a hearing is requested but before it is held. This Ruling explains the policy SSA will apply in these cases.

The goal of process unification is to achieve correct, similar results in similar cases at all stages of the administrative review process. SSA's studies indicate that additional evidence is submitted to SSA's OHA by claimants or their representatives in at least 40 percent of claims pending at the hearing level. (SSA requests or develops for additional evidence in approximately another 20 percent of cases.) Given this volume of cases involving additional evidence at the hearing level, evaluation of these cases by DDS medical and/or psychological consultants could either result in a revised favorable determination without a hearing, or at least present a clearer picture of the medical record for purposes of a hearing before an ALJ in a significant number of cases. For these purposes, the ALJ would accept the DDS medical and/or psychological consultant's analysis as evidence material to the issues, pursuant to 20 CFR 404.944 and 416.1444.

Including the DDS medical and/or psychological consultant's analysis of additional evidence in the record is consistent with considering DDS medical and psychological consultant opinion in adjudication at the OHA level (SSR 96-6p, 7/2/96). The analysis is expected to help ensure uniform decision making at all levels of administrative review within SSA by providing expert consideration of, and opinion on, the medical issues presented by the additional evidence, including, but not limited to, the existence and severity of the claimant's impairment(s), the existence and severity of the claimant's symptoms, whether the impairment meets or equals the requirements for any impairment listed in 20 CFR Part 404, Subpart P, Appendix 1, and the claimant's residual functional capacity. The analysis is also expected to help OHA focus any additional development it may consider necessary by indicating what issues raised in the additional evidence, if any, could be clarified by such development.

POLICY INTERPRETATION: Under 20 CFR 404.941 and 416.1441, OHA may return selected cases to the DDS for a prehearing case review when new medical evidence is received at the hearing level.

OHA may return a case to the DDS if all of the following criteria are met:

  • The claimant requested a hearing regarding his or her entitlement to disability insurance benefits under title II of the Social Security Act (the Act), eligibility for supplemental security income based on disability under title XVI of the Act, or both;
  • A hearing has not been held in the case;
  • SSA received additional evidence in the case after the date of the reconsideration determination;
  • The additional evidence is not duplicative and was not a result of SSA development; and
  • SSA has not previously returned the case to the DDS for a prehearing case review.

The DDS will decide whether its determination may be revised based on the additional evidence when considered with the entire record. A revised determination may be wholly or partially favorable to the claimant.

If the DDS revises the determination, SSA will mail written notice of the revised determination to all parties to the hearing at their last known address. The notice will state the basis for the revised determination, and will advise all parties of their right to request a hearing on the revised determination within 60 days after the date of receiving the notice.

If the DDS revises its determination to a wholly favorable determination, the notice will also state that:

  • The ALJ will dismiss the request for hearing unless the claimant or another party requests that the hearing proceed; and
  • The request to proceed with the hearing must be made in writing within 30 days after the date the notice of the revised determination was mailed.

If the DDS revises its determination to a partially favorable determination, the notice will also state:

  • What was not favorable in the revised determination; and
  • That the hearing requested by the claimant will be held unless the claimant and all other parties inform SSA that they agree to dismiss the hearing request.

If the DDS does not revise its determination based on the additional evidence, the DDS will return the case to the ALJ with a medical and/or psychological consultant's analysis of the entire medical record, including the additional evidence, in a format appropriate for inclusion into the record. This analysis will be considered opinion evidence from a nonexamining source or sources, under the provisions of the regulations at 20 CFR 404.1527(f) and 416.927(f), and the guidelines in SSR 96-6p. The ALJ must consider the medical and/or psychological consultant's analysis by applying the rules in paragraphs (a) through (e) of those sections of the regulations, and must explain in the decision the weight given to the analysis.

Returning a case for a prehearing case review will not delay the scheduling of a hearing unless the claimant agrees to continue the review and delay the hearing. If the prehearing case review is not completed before the date of the hearing, the case will be sent to the ALJ unless a favorable revised determination is in process, or the claimant and the other parties to the hearing agree in writing to delay the hearing until the review is completed.

EFFECTIVE DATE: This Ruling is effective on the date of its publication in the Federal Register.

CROSS-REFERENCE: SSR 96-6p, "Titles II and XVI: Consideration of Administrative Findings of Fact by State Agency Medical and Psychological Consultants and Other Program Physicians and Psychologists at the Administrative Law Judge and Appeals Council Levels of Administrative Review; Medical Equivalence."

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