I-3-2-36.Excluded Medical Sources of Evidence

Last Update: 11/08/16 (Transmittal I-3-149)

A. General Policy

Generally, the Social Security Administration (SSA) considers all submitted evidence when determining whether a claimant is blind or disabled under the Social Security Act (Act). However, under 20 CFR 404.1503b and 416.903b, SSA will not consider evidence from an excluded medical source of evidence under sections 223(d)(5)(C) and 1614(a)(3)(H)(i) of the Act unless a good cause exception applies.

NOTE:

An adjudicator must disregard evidence when there is reason to believe that fraud or similar fault (FSF) was involved in the providing of the evidence even if a good cause exception exists (see Hearings, Appeals and Litigation Law (HALLEX) manual I-3-10).

B. Identifying Excluded Medical Sources of Evidence

Excluded medical sources of evidence are medical sources that have been:

  • Convicted of a felony under section 208 or section 1632 of the Act;

  • Excluded from participating in any Federal health care program under section 1128 of the Act; or

  • Imposed with a civil monetary penalty (CMP), assessment, or both, for submitting false evidence under section 1129 of the Act.

Under 20 CFR 404.1503b and 416.903b, excluded medical sources of evidence must provide a written statement of exclusion each time they furnish evidence related to a claim for initial or continuing benefits under titles II or XVI of the Act.

NOTE 1:

Evidence furnished by excluded medical sources of evidence includes evidence they have generated, created, or otherwise have within their possession.

NOTE 2:

Excluded medical sources furnish evidence to us directly or indirectly through a claimant, representative, or other individual or entity.

1. Written Statement of Exclusion Requirement

All written statements of exclusion must include the following:

  • The heading, “WRITTEN STATEMENT REGARDING SECTION 223(d)(5)(C) OF THE SOCIAL SECURITY ACT – DO NOT REMOVE;”

  • The name and title of the excluded medical source of evidence; and

  • The basis for the exclusion.

As applicable, written statements of exclusion must also include:

  • The date of the felony conviction under section 208 or section 1632 of the Act;

  • The reason, effective date, and expected length of exclusion under section 1128 of the Act and whether the exclusion was waived by the Office of Inspector General of the Department of Health and Human Services (HHS OIG); and

  • The date of the final decision imposing the CMP, assessment, or both, for submitting false evidence under section 1129 of the Act.

2. Finding the Written Statement of Exclusion

The written statement of exclusion should be located before the first page (but after any barcode page) of any evidence furnished by an excluded medical source of evidence directly or indirectly through a claimant, representative, or other individual or entity related to a claim for initial or continuing benefits under titles II or XVI of the Act.

NOTE 1:

Office of Appellate Operations (OAO) staff will not move a written statement of exclusion that is not placed before the first page (but after any barcode page) of the evidence.

NOTE 2:

If no written statement of exclusion is included with evidence from an excluded medical source of evidence, the Appeals Council (AC) should conclude that there is no excluded medical source of evidence unless the AC knows or has sufficient reason or information to believe that the source is an excluded medical source of evidence and a referral for non-compliance is warranted (see HALLEX I-1-3-30 for more information on referring non-compliant excluded medical sources of evidence to the Office of the Inspector General).

NOTE 3:

If a source provides an unclear or incomplete written statement of exclusion, OAO staff may contact the medical source for clarification or additional information. If the medical source cannot be reached after one attempt, the AC may exclude the medical source's evidence unless there is information available to apply a good cause exception(s). OAO staff must record the details of any contact on a form SSA-5002, Report of Contact, and scan or place it in section E of the claim(s) file.

C. Annotating the Claim(s) File

When a claim(s) file contains evidence from an excluded medical source of evidence, OAO staff must annotate the file by indicating “Excluded Medical Source of Evidence.” See OAO's electronic business process section 4.

  • In cases with an electronic claim(s) file, the employee will annotate the document in eView, adding a note to the specific excluded evidence that reads “Excluded Medical Source of Evidence.” If only a portion of the document is from an excluded medical source, specify the pages within the document from the excluded medical source. OAO staff will also change the Document Type to “Excluded Medical Source of Evidence.”

    NOTE:

    If the evidence was exhibited at the hearing level, OAO staff will not be able to annotate the file with the flag or note as explained here. In this situation, OAO staff will only add a Remark in ARPS as explained below.

  • In cases with a paper claim(s) file, OAO staff will print out the following flag, fill in the requested information, and attach it to the front of the paper file. OAO staff will also identify in the “Remarks” section of the flag the document (and, if not the entire document, the pages within that document) that contains evidence from an excluded medical source of evidence.

    Flag for Paper Claim(s) Files

In all cases, the OAO staff must document that the file contains evidence from an excluded medical source in the Appeals Review Processing System (ARPS) by creating a “Special Attention” Remark. The Remark will read “Excluded Medical Source of Evidence.”

D. Evaluating Evidence from Excluded Medical Sources of Evidence

The AC must exclude evidence from excluded medical sources of evidence that is furnished directly or indirectly through a claimant, representative, or other individual or entity related to a claim for initial or continuing benefits under titles II or XVI of the Act unless one of five good cause exceptions applies.

The exclusion will also depend on when the evidence was furnished and whether it was considered at a prior administrative level.

1. Evidence Falls within a Good Cause Exception

When a good cause exception applies, the AC may consider the qualifying evidence from the excluded medical source of evidence when issuing an action.

NOTE 1:

There may be instances where some, but not all, of the evidence from an excluded medical source of evidence meets the criteria of a good cause exception. In those instances, the AC may consider the evidence that meets the good cause exception criteria and exclude the evidence that does not.

NOTE 2:

Even if a good cause exception applies, the AC must always disregard evidence when there is reason to believe that FSF was involved in the providing of the evidence (see HALLEX I-3-10-0).

The five good cause exceptions are:

  • The evidence covers treatment that occurred before the date of the source's felony conviction under section 208 or 1632 of the Act;

  • The evidence covers treatment that occurred when the source was not excluded from participating in any Federal health care program under section 1128 of the Act (i.e., before the source was excluded from participating in any Federal health care program under section 1128 of the Act, or after the source was reinstated by HHS OIG and allowed to resume participation in any Federal health care program);

  • The evidence covers treatment that occurred before the date the source received a final decision imposing a CMP, assessment, or both, for submitting false evidence under section 1129 of the Act;

  • The source is excluded solely because the source cannot participate in any Federal health care program under section 1128 of the Act, but HHS OIG has waived that section 1128 exclusion; and

  • The evidence is a laboratory finding(s) about a physical impairment(s), and there is no indication that the finding is unreliable (see 20 CFR 404.1528(c) and 416.928(c) for guidance on what constitutes a laboratory finding).

2. Evidence Considered at a Prior Administrative Level or Continuing Disability Review (CDR)

a. Evidence Considered Prior to November 2, 2016

If evidence from an excluded medical source of evidence was considered in a determination, decision, or CDR before November 2, 2016, the evidence must continue to be considered at each subsequent step of the administrative review process and in any subsequent CDR unless there is reason to believe that FSF was involved in the providing of the evidence. This requirement applies regardless of whether the excluded medical source of evidence resubmits the same evidence on or after November 2, 2016.

EXAMPLE:

An administrative law judge (ALJ) issues a hearing decision on November 1, 2016, denying a claim for title II benefits. In issuing that decision, the ALJ considered a September 24, 2016 opinion from Dr. Smith. The claimant files a request for review on November 25, 2016. That same day, Dr. Smith submits additional evidence and includes a written statement of exclusion, wherein he reports he was convicted of a felony under section 208 of the Act on January 1, 2013. The AC must consider Dr. Smith's September 24, 2016 opinion unless it was provided through FSF. The AC must exclude the additional evidence Dr. Smith submitted the same day as the claimant's November 25, 2016 request for review unless a good cause exception applies and there is no reason to believe that FSF was involved in the providing of the evidence.

b. Evidence Considered on or After November 2, 2016

If evidence from an excluded medical source of evidence was considered in a determination, decision, or CDR on or after November 2, 2016, the evidence must continue to be considered at each subsequent step of the administrative review process and in any subsequent CDR unless there is reason to believe that FSF was involved in the providing of the evidence, or it was incorrectly considered by a previous adjudicator.

Instances in which evidence from an excluded medical source of evidence may have been incorrectly considered in an adjudication include:

  • The excluded medical source of evidence did not provide a written statement of exclusion, but should have done so;

  • A previous adjudicator did not identify the written statement of exclusion provided by the excluded medical source of evidence; or

  • A previous adjudicator incorrectly applied a good cause exception.

c. Evidence Excluded on or After November 2, 2016

If evidence from an excluded medical source of evidence was first excluded in a determination, decision, or CDR on or after November 2, 2016, the evidence must continue to be excluded at each subsequent step of the administrative review process and in any subsequent CDR unless it was incorrectly excluded by a previous adjudicator (i.e., evidence from a source that the adjudicator misidentified as an excluded medical source of evidence or failed to apply an applicable good cause exception).

If the evidence was incorrectly excluded by a previous adjudicator, the evidence must be considered in the current adjudication.

E. Addressing Evidence from Excluded Medical Sources of Evidence in AC Action

When issuing an action, the AC must state whether the evidence from an excluded medical source of evidence was included or excluded and provide reason(s) for the inclusion or exclusion. The statement will be made if the evidence was submitted at the AC level or if it was incorrectly considered by a previous adjudicator.

NOTE:

When evaluating an appeal of a dismissal or decision, the AC will consider a claimant or appointed representative's allegation that evidence was incorrectly included or excluded under 20 CFR 404.1503b and 416.903b.

1. When All Evidence Has Been Excluded

If the AC excludes all of the evidence from an excluded medical source of evidence, the action document must include the language provided below depending on the type of action document.

a. Denial Notice or Interim Notice:

Include the following language under “What We Considered”:

Unless there is good cause, the law prevents the Social Security Administration from considering evidence furnished by medical sources who have been convicted of a felony under section 208 or 1632 of the Social Security Act (Act); excluded from participating in any Federal health care program under section 1128 of the Act; or imposed with a civil monetary penalty, assessment, or both, under section 1129 of the Act, for submitting false evidence.

We were not able to consider certain evidence in your case because it was furnished by a medical source(s) who falls within one of these categories.

Immediately following the language, the AC will also include the following information:

  • The name(s) of the excluded medical source(s) of evidence; and

  • A brief description of the evidence from the excluded medical source(s) of evidence that is being excluded.

b. Remand Order, Dismissal Order, or Decision Order

Include the following language in the text of the order:

Unless there is good cause, the law prevents the Social Security Administration from considering evidence furnished by medical sources who have been convicted of a felony under section 208 or 1632 of the Social Security Act (Act); excluded from participating in any Federal health care program under section 1128 of the Act; or imposed with a civil monetary penalty, assessment, or both, under section 1129 of the Act, for submitting false evidence.

The Appeals Council was not able to consider certain evidence in this case because it was furnished by a medical source(s) who falls within one of these categories.

Immediately following the language, the AC will also include the following information:

  • The name(s) of the excluded medical source(s) of evidence; and

  • A brief description of the evidence from the excluded medical source(s) of evidence that is being excluded.

2. When All Evidence Has Been Considered

If the AC considers all of the evidence from an excluded medical source of evidence because a good cause exception applies, the action document must include the language provided below depending on the type of action document.

a. Denial Notice or Interim Notice

Include the following language under “What We Considered”:

Unless there is good cause, the law prevents the Social Security Administration from considering evidence furnished by medical sources who have been convicted of a felony under section 208 or 1632 of the Social Security Act (Act); excluded from participating in any Federal health care program under section 1128 of the Act; or imposed with a civil monetary penalty, assessment, or both, under section 1129 of the Act, for submitting false evidence.

Although certain evidence in your case was furnished by a medical source(s) who falls within one of these categories, we were able to consider it because we found that a good cause exception(s) applies.

Immediately following this language, the AC will also include the following information:

  • The name(s) of the excluded medical source(s) of evidence;

  • A brief description of the evidence being considered as follows:

    • If the AC is issuing a denial notice, the exhibit number(s) and page number(s) of evidence from the excluded medical source(s) of evidence that is being considered; or

    • If the AC is issuing an interim notice, a brief description of the evidence from the excluded medical source(s) of evidence that is being considered; and

  • Which good cause exception(s) applies.

b. Remand Order, Dismissal Order, or Decision Order

Include the following language in the text of the order:

Unless there is good cause, the law prevents the Social Security Administration from considering evidence furnished by medical sources who have been convicted of a felony under section 208 or 1632 of the Social Security Act (Act); excluded from participating in any Federal health care program under section 1128 of the Act; or imposed with a civil monetary penalty, assessment, or both, under section 1129 of the Act, for submitting false evidence.

The Appeals Council was able to consider certain evidence in this case because, although it was furnished by a medical source(s) who falls within one of these categories, the Appeals Council found that a good cause exception(s) applies.

Immediately following this language, the AC will also include the following information:

  • The name(s) of the excluded medical source(s) of evidence;

  • A brief description of the evidence being considered as follows:

    • If the AC is issuing a decision, the exhibit number(s) and page number(s) of evidence from the excluded medical source(s) of evidence that is being considered; or

    • If the AC is issuing a remand order or dismissal order, a brief description of evidence from the excluded medical source(s) of evidence that is being considered; and

  • Which good cause exception(s) applies.

3. When Some Evidence Has Been Excluded and Some Evidence Has Been Considered

If the AC partially considers and excludes evidence from an excluded medical source of evidence, the action document must include the language provided below depending on the type of action document.

a. Denial Notice or Interim Notice:

Include the following language under “What We Considered”:

Unless there is good cause, the law prevents the Social Security Administration from considering evidence furnished by medical sources who have been convicted of a felony under section 208 or 1632 of the Social Security Act (Act); excluded from participating in any Federal health care program under section 1128 of the Act; or imposed with a civil monetary penalty, assessment, or both, under section 1129 of the Act, for submitting false evidence.

We were able to partially consider certain evidence in your case because, although it was furnished by a medical source(s) who falls within one of these categories, we found that a good cause exception(s) applies to some of that evidence.

Immediately following this language, the AC will also include the following information:

  • The name(s) of the excluded medical source(s) of evidence;

  • A brief description of the evidence as follows:

    • If the AC is issuing a denial notice, the exhibit number(s) and page number(s) of evidence from the excluded medical source(s) of evidence that is being considered and a brief description of the evidence that is being excluded; or

    • If the AC is issuing an interim notice, a brief description of the evidence from the excluded medical source(s) of evidence that is being considered and excluded;

  • For the evidence being considered, which good cause exception(s) applies; and

  • For the evidence being excluded, a statement that no good cause exception(s) applies.

b. Remand Order, Dismissal Order, or Decision Order

Include the following language in the text of the order:

Unless there is good cause, the law prevents the Social Security Administration from considering evidence furnished by medical sources who have been convicted of a felony under section 208 or 1632 of the Social Security Act (Act); excluded from participating in any Federal health care program under section 1128 of the Act; or imposed with a civil monetary penalty, assessment, or both, under section 1129 of the Act, for submitting false evidence.

The Appeals Council was able to partially consider certain evidence in this case because, although it was furnished by a medical source(s) who falls within one of these categories, the Appeals Council found that a good cause exception(s) applies to some of that evidence.

Immediately following this language, the AC will also include the following information:

  • The name(s) of the excluded medical source(s) of evidence;

  • A brief description of the evidence as follows:

    • If the AC is issuing a decision, the exhibit number(s) and page number(s) of evidence from the excluded medical source(s) of evidence that is being considered and a brief description of the evidence that is being excluded; or

    • If the AC is issuing a remand order or dismissal order, a brief description of the evidence from the excluded medical source(s) of evidence that is being considered and excluded;

  • For the evidence being considered, which good cause exception(s) applies; and

  • For the evidence being excluded, a statement that no good cause exception(s) applies.

F. Reopening Due to Incorrect Inclusion or Exclusion of Evidence

A determination or decision may be reopened if a previous adjudicator incorrectly considered evidence from an excluded medical source of evidence, or incorrectly excluded evidence from a source that the adjudicator misidentified as an excluded medical source of evidence. In such situations, a determination or decision may be reopened at the request of the claimant, appointed representative, or on SSA's own initiative pursuant to 20 CFR 404.988 and 416.1488 (see also HALLEX I-3-9-0).