SSA - POMS: SI 04070.010 - Title XVI Administrative Finality - Reopening Policies

A. Policy – reopening

Administrative finality or reopening applies only when we change final determinations or decisions. If the action being changed is not a final determination or decision, administrative finality rules, including the timeframes, do not apply. For a discussion of initial determinations, see SI 04070.005A.3.

1. Actions under appeal

If an action is under appeal; i.e., it is at an appeal step, such as reconsideration, Administrative Law Judge (ALJ) review, or Appeal Council (AC) review, it is not subject to the rules of administrative finality. No matter how long that step takes, it is applicable all the way back to the period covered by the initial determination that started the process. If it is based on an initial application, it is effective back to the effective application date.

EXAMPLE: Robin Jones filed an application for Supplemental Security Income (SSI) on February 6, 2010. We denied the claim and mailed the initial determination notice dated July 13, 2010. Robin Jones disagreed with this denial and filed a reconsideration on August 15, 2010. We affirmed the initial denial determination and mailed the reconsideration determination dated September 15, 2010. Robin Jones disagreed with the reconsideration determination and filed an ALJ review request on October 20, 2010. The ALJ rendered a decision on February 16, 2012 reversing the reconsidered determination as of the effective application date, February 6, 2010. We made payment back to the application date (except for the EO2 month), even though it preceded the ALJ decision by more than two years.

2. Good cause to extend time to file an appeal

If we find good cause to extend the time to file an appeal, the matter becomes an appeal issue not subject to reopening. The administrative finality time limits do not apply.

EXAMPLE: Erroneous Death Termination

Jerry Anderson is an SSI recipient who is required to have a representative payee because of a serious mental impairment. Jerry Anderson has been eligible for and receiving payments since August 1999. In March 2004, Jerry Anderson's payee died. When someone reported the payee's death, we mistakenly assumed that Jerry Anderson died, and we terminated payments in April 2004. Since it was a death termination, we did not send Jerry Anderson a notice of the initial determination. In March 2013, a relative brought Jerry Anderson into the field office (FO), and we discovered the error. The FO employee explained that Jerry Anderson could submit a request for reconsideration together with a request to extend the time for requesting a reconsideration based on the lack of notice of the termination. Jerry Anderson submitted both requests. Based on the explanation contained in the request for extension, the employee found good cause to accept the late request for reconsideration. The employee then conducted a reconsideration and reversed the termination, which we implemented in March 2004. Based on that action, we rendered an underpayment determination that awarded payments from April 2004 to present. We could make all payments because we paid them as the result of a step in the appeal process, even though about 7 years of payments applied to months that were more than 2 years in the past.

IMPORTANT: For determinations that do not require notices, such as wrongful death terminations, the determination is the input to the system to effectuate the determination. For all other determinations, the written notices is the determination.

3. Deemed initial determinations

Until we have information to the contrary, we consider that all factors of eligibility and payment amount remain the same from one month to the next. Each month’s payment is a determination in which there is “deemed” no change in the factors of eligibility and payment amount.

IMPORTANT: The concept of “deemed initial determinations” applies ONLY to nonmedical factors. It does not apply to medical factors of eligibility; i.e., disability.

If we learn that there has been an unreported change, we can go back and revise all such monthly “deemed determinations” for at least 1 year, and, possibly for 2 years. The rules regarding time limits for reopening and revising that apply to all other determinations apply here also. The reason for the revision will determine how far back we can go to reopen; i.e., good cause (2 years), fraud (unlimited) or similar fault (unlimited). For instructions about determining which months we can reopen, see SI 04070.010F.4. through SI 04070.010F.5. in this section. For instructions concerning the effect of Retrospective Monthly Accounting (RMA) on determining what months we can reopen, see SI 04070.030F.

4. Scope of application

The Form SSA 8000-BK (Application for Supplemental Security Income (SSI)) is a claim for all benefits administered by the Social Security Administration (SSA) to which the claimant may be entitled; for example, Title II Disability Insurance Benefits or Retirement and Survivors’ Insurance Benefits (see Scope of the Application, GN 00204.020 and Filing Applications, SI 00601.010D.1.). The failure to consider and adjudicate the claimant's entitlement to a class of benefits for which the claimant meets all of the requirements for entitlement during the effective life of the application is not a determination with respect to that claim. This is true regardless of whether we, or the claimant, was aware of the possibility of such entitlement to any other benefits encompassed by the SSI application at the time of adjudication.

5. Scope of the award or disallowance

The award or disallowance of other benefits covered by the SSI application does not dispose of a claim, which the award or disallowance action does not specifically cover.

B. Policy – effect of a failure to make a determination

The failure to make a determination with respect to any claim or issue is not an initial determination to which finality may attach. Consequently, any time such a failure comes to SSA's attention, an adjudication of the claim or issue is in order.

EXAMPLE: Sam Davis filed an application for SSI on June 15, 2011 claiming that they were disabled. We denied Sam Davis's application because we found they were not disabled and mailed the initial determination notice dated September 12, 2011. We did not make a determination on Sam Davis's income, living arrangement or resources. Sam Davis filed a reconsideration on July 15, 2011. We made the reconsideration determination, affirming the previous decision, and mailed the determination notice dated February 9, 2012. Sam Davis disagreed with this determination and filed a request for an ALJ hearing on March 15, 2012. The ALJ issued a decision on July 30, 2013 finding that Sam Davis was disabled at least as of the date of their application, and we sent the file back to the field office for effectuation.

Since we did not make a determination regarding the other factors of eligibility (income, resources, and living arrangements) and payment amounts, the field office will develop the case for those factors and make an initial determination as to whether Sam Davis meets the remaining factors. The appeal level on that determination is the reconsideration.

C. Policy – only incorrect determinations can be reopened and revised

Generally, we reopen and revise determinations or decisions that were incorrect when made. A correct determination or decision cannot be reopened and revised merely because the circumstances on which we based it changed at a later time with respect to a period different than the period covered by the determination or decision, except as noted in SI 04070.010C.1. through SI 04070.010C.3. in this section. A determination or decision may have appeared correct based on the evidence available at the time we made it. If it is later shown that it was incorrect when we made the determination or decision; for example, through introduction of new and material evidence, we can reopen and revise it.

EXAMPLE: We will not reopen and revise a correct determination of ineligibility on an initial claim that a claimant is receiving in kind support and maintenance because the individual stops receiving the support and maintenance after the end of the appeal period on the initial determination. If the individual contacts us after the end of the appeal period and we cannot find good cause for late filing, the individual must file a new application.

1. Exceptions: N17, N18 denials

We can reopen these determinations for failure to pursue or cooperate, if the claimant or appellant subsequently pursues or cooperates, even though they were correct when made if we did not follow the correct procedures before issuing the denial. We can only reopen N17 and N18 determinations within two years of the initial determination if we make a finding of good cause.

Unrestricted reopening does not apply to N17 and N18 determinations.

NOTE: We should not consider claims denied N18 for failure to provide SSA with permission to contact financial institutions an exception since giving permission is a requirement for SSI eligibility as of 11/18/2006 (see Requirement to Give Permission to Contact Financial Institutions, SI 00515.001).

For additional information on Reestablishing Eligibility, see Suspension and Reestablishing Eligibility, SI 02301.205.

2. Exception: changes of position

If we change our position because of a court order, legal precedent, or policy considerations, we can go back for up to one year and revise determinations, even though they were correct when made under the old position.

NOTE: If we applied a law that the Supreme Court of the United States later found unconstitutional, and application of that law was material to our determination or decision, see SI 04070.010F.5.c. in this section.

3. Exception: statutory and regulatory changes

Revision, if applicable, will depend on the effective date specified in the statute or regulations. Revision will also depend on whether the change has retroactive effect.

The instructions relating to the change will specify the effective date and how reopening and revision applies.

D. Policy – when to reopen and revise a determination or decision

It is our policy to reopen or revise a determination or decision only if the 60-day appeal period has passed.

E. Policy – when determinations and decisions become final

Determinations and decisions become final as follows:

1.

Initial determinations -- 60 days after the initial determination notice date if we do not receive a reconsideration request.
2.

Revised determinations -- 60 days after the revised determination notice date if we do not receive a request for reconsideration (in cases where current benefits are affected) or a request for ALJ hearing (in cases of closed period reopenings).
3.

Reconsidered determinations -- 60 days after the reconsideration notice date if we not do receive a request for an ALJ hearing.
4.

ALJ hearing decisions -- 60 days after the ALJ decision notice date if we do not receive a request for AC review and the AC does not decide to take jurisdiction to review the claim (“own motion review”) based on its notice to the claimant, or representative, or both.
5.

AC review -- If the claimant files a request for AC review and the AC denies the request, then the decision becomes final immediately.

If the AC accepts the review request, once the AC issues the decision notice it becomes final immediately, unless there is a complaint filed in district court.

(See the instructions for Definitions and General Processing Instructions for disability cases, in DI 40115.005A.6., and Administrative Finality – General for special veterans’ benefit cases, in VB 02507.001C.1.)

F. Policy – when reopening may be requested and who may request reopening

1. When reopening may be requested

A party may request a reopening after the time limit for appeal (the “appeal period”) has passed if they are dissatisfied with a determination, revised determination, decision, or revised decision even though they have not requested an appeal (unless good cause exists for a late request per Good Cause for Extending Time Limit, SI 04005.015).

2. Who may request reopening

The following is a list of individuals who may request that we reopen and revise a determination or decision:

•

a person who is a party to a determination or decision,
•

the eligible spouse of any person who is claiming or receiving SSI payments,
•

the representative payee or legal guardian of the person, and
•

the ineligible spouse, or a person who is eligible for an SSI underpayment.

3. Who can reopen and revise a determination or a decision

a. Non-disability issues

Only a decision maker at the same level or above can reopen or revise a determination or decision:

•

the FO, an ALJ, or the AC can reopen and revise an initial or a reconsidered determination;
•

only an ALJ or the AC can reopen and revise an ALJ’s decision; and
•

only the AC can reopen and revise an AC decision.

NOTE: A court is not bound by nor obligated to follow SSA’s reopening rules.

b. Disability issues

The FO does not have authority to reopen and revise a Disability Determination Services (DDS) determination related to disability or blindness.

4. Time limits for reopening and revising

a. 1-Year rule

We can reopen and revise a determination or decision for up to 1 year from the date of the notice of the initial determination or decision for any reason.

b. 2-Year rule

We can reopen and revise a determination or decision for up to 2 years from the date of the notice of the initial determination or decision upon a finding of “good cause.” For the described criteria, see SI 04070.010F.5. in this section. We must make a specific finding of good cause, if the 1-year rule does not apply.

c. Indefinite reopening

We can reopen and revise a determination or decision at any time upon a finding of “fraud” or “similar fault.” (See SI 04070.020)

5. Good cause for reopening under the 2-year rule

There is good cause to reopen a determination or decision up to two years after the initial determination if:

•

New and material evidence is furnished;
•

A clerical error has been made; or
•

There is an error on the face of the evidence.

A change of ruling or legal precedent does NOT constitute good cause.

a. New and material evidence

New and material evidence is any evidence that was not part of the file when the determination or decision was made and which shows facts that can result in a conclusion different from that reached in the prior determination or decision.

b. Clerical error

A clerical error is any error (mathematical, coding, or input) that results in an incorrect determination or decision either favorable or unfavorable to the claimant.

c. Error on the face of the evidence

An error on the face of the evidence is an error that clearly indicates, considering all the evidence in the file on which we based the determination or decision, that the determination or decision was incorrect.

As set out in Social Security Ruling (SSR) 17-1p, an error on the face of the evidence also exists when we:

1)

applied a law that the Supreme Court of the United States later found unconstitutional, and
2)

the application of that law was material to our determination or decision.

The Office of General Counsel (OGC) must advise whether (SSR) 17-1p applies to Supreme Court decisions before we may reopen a determination or decision. OGC has determined that (SSR) 17-1p applies to determinations or decisions materially affected by the Court’s decision in the following court cases:

•
United States v. Windsor, 133 S. Ct. 2675 (2013). The Supreme Court held that section 3 of the Defense of Marriage Act (DOMA), which defined marriage for Federal benefit purposes as a union between a man and a woman, was unconstitutional. As a result, DOMA no longer prohibited the agency recognizing a valid same-sex marriage for purposes of determining entitlement to or eligibility for benefits in States that recognize such same-sex marriages. You may reopen determinations or decisions, under normal reopening procedures, if the agency’s decision or determination:
1. 1)
  
  did not recognize a same-sex marriage because of DOMA; and
2. 2)
  
  non-recognition of the same-sex marriage affected eligibility, entitlement, or payment amount;
•
Obergefell v. Hodges, 135 S. Ct. 2584 (2015). The Supreme Court held that same-sex couples have a constitutional right to marry in, and have their valid marriages recognized by, all States. As a result, the agency can recognize all valid same-sex marriages. You may reopen determinations or decisions, under normal reopening procedures, where the agency’s decision or determination:
1. 1)
  
  did not recognize a same-sex marriage because State law prohibited such recognition; and
2. 2)
  
  non-recognition of the same-sex marriage affected eligibility, entitlement, or payment amount.

If you are unsure if one of the listed Supreme Court cases covers a claimant’s case, please refer the claimant’s case to OGC for a legal opinion.

If you believe that it may be appropriate, based on your review of a claimant’s case or based on a request from a claimant, beneficiary, or recipient or their representative, to reopen a determination or decision due to a law that the Supreme Court of the United States later found unconstitutional, and the Supreme Court case is not included in the case list above, you must obtain an OGC opinion on whether (SSR) 17-1p applies to the relevant Supreme Court case before proceeding.

G. Policy – how to measure time limits

We measure time limits from the date of the initial determination, regardless of the level of the determination or decision being reopened and are not extended by subsequent steps of the appeals process. In other words, when reopening, we base the administrative finality time limits on the date of the notice of initial determination rather than on the date of the appellate determination or decision.

1. EXAMPLE 1

A claimant received an initial determination notice dated January 20, 2013. On August 5, 2013, the claimant filed a reconsideration on the initial determination of January 20, 2013. We base the time limit for reopening the initial determination on January 20, 2013, not August 5, 2013. We also base the time limit for subsequently reopening a revised determination on January 20, 2013, not August 5, 2013. It would therefore be appropriate to reopen a determination for good cause based on affirmative action in writing dated January 20, 2015 or before.

2. EXAMPLE 2

The claimant filed an application for SSI on January 11, 2013. We denied their application because of excess resources and issued the denial notice dated February 1, 2013. On February 10, 2013, the claimant filed a request for reconsideration. The FO affirmed the denial and issued a reconsidered determination on February 15, 2013. On February 19, 2013, the claimant requested a hearing. The ALJ issued a hearing decision, dated December 15, 2013, affirming the denial. Then the claimant filed a new application on March 3, 2014, which we denied again for excess resources on March 14, 2014 (date of denial notice). The claimant filed a reconsideration request on April 15, 2014, and we issued a reconsidered determination dated May 1, 2014, affirming the denial. The claimant filed a request for a hearing on June 1, 2014, and the ALJ issued a hearing decision on January 16, 2015, reversing the denial and reopening and revising the hearing decision of December 15, 2013. During the second hearing, new and material evidence came to the attention of the ALJ that pertained to the first application (i.e., evidence not available at the time of the initial determination of February 1, 2013, and subsequent appeals). This was the basis for establishing good cause for reopening and revising the prior hearing decision, which appeared to be correct based on the evidence available at the time of original adjudication. Because the claimant filed the second application within two years after the initial determination on the first application (February 1, 2013), the ALJ could still reopen the hearing decision based on that application under the 2-year rule.

H. Policy – effect of denial of request to reopen

Denial of a request to reopen a determination or decision is an act of administrative discretion.

It is not an initial determination.

It is not appealable.

Social Security

Program Operations Manual System (POMS)

SI 04070.010 Title XVI Administrative Finality - Reopening Policies