Error on the Face of the Evidence exists when it is absolutely clear that the determination or decision was incorrect based on the evidence that the Social Security Administration (SSA) had, anywhere within SSA's records, when it made the determination or decision.

In view of the interrelationship between Railroad Retirement Board (RRB) compensation records and SSA earnings records, SSA considers RRB compensation records as a part of SSA earnings records for the purpose of the topic described in this section. SSA does not consider other records (such as Veterans Affairs records) to be a part of SSA records.

1. 1. 

   Is the affirmative action in writing within one year of the date of the notice of the initial determination, per GN 04001.050 and GN 04001.040B?

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     If yes, SSA does not need to determine if it can reopen the determination or decision based on Error on the Face of the Evidence. SSA can reopen an incorrect determination or decision for any reason if the affirmative action in writing is within one year of the date of the notice of the initial determination, per GN 04001.010.

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     If no, go to step 2.

2. 2. 

   Based on the evidence that SSA had anywhere within SSA records when it made the determination or decision, is it absolutely clear that the determination or decision was incorrect?

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     If yes, go to step 3.

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     If no, SSA cannot reopen the determination or decision based on Error on the Face of the Evidence.

3. 3. 

   Was the determination or decision subject to possible reopening based on Error on the Face of the Evidence originally favorable or unfavorable to the beneficiary?

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     If favorable (the correction would be unfavorable to the beneficiary), SSA can reopen the determination or decision if the affirmative action in writing (GN 04001.050) is within four years of the date of the notice of the initial determination, per GN 04010.001. To determine the time for reopening based on the notice of the initial determination, see GN 04001.040B.

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     If unfavorable (the correction would be favorable to the beneficiary), SSA can reopen the determination at any time (there is no time frame), per GN 04020.080.

IMPORTANT: SSA may revise a determination or decision after the applicable time limits for reopening expire (the one and four year time limits, per GN 04001.010) if SSA reopens the determination or decision and starts its investigation before the applicable time limits expire. If SSA does not conclude its investigation and revise its determination or decision within six months after the investigation began (i.e., the affirmative action in writing date noted in steps 1 and 3 above), then SSA must show it diligently pursued the investigation if the correction is unfavorable to the beneficiary, per GN 04001.060.

For additional guidelines for SSA/Internal Revenue Service (IRS) Reconciliation Cases, see GN 04010.020E.

While SSA considers these examples of Error on the Face of the Evidence, the criteria in GN 04010.020A and GN 04010.020B must be met before SSA can reopen and correct an incorrect determination or decision based on Error on the Face of the Evidence:

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  Relying on the wrong person's medical records, per DI 27505.010C.

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  Relying on the wrong person's earning records.

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  Denying a retirement insurance benefit (RIB) based on lack of proof of age, but the adjudicator failed to notice that the birth certificate was in the case record at the time they made the determination or decision.

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  Denying a RIB based on lack of insured status, but the claimant would have insured status within 4 months of the month of adjudication and the evidence of earnings for the qualifying quarter is available, per GN 01010.440B.2.

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  Denying an auxiliary spouse or widow(er)'s benefit based on lack of marriage proof, but the adjudicator failed to notice that the marriage certificate was in the case record at the time they made the determination or decision.

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  Establishing an incorrect month of entitlement, such as, an applicant with a date of birth (DOB) of 03/01/58 elected to receive benefits at age 62. The correct month of entitlement is 3/2020 because the DOB is the first day of the month, per RS 00201.001C. However, the claims specialist incorrectly established the month of entitlement as 04/2020.

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  Applying a law that the Supreme Court of the United States later found unconstitutional where the application of that law was material to our determination or decision, as described in GN 04010.020D.

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  Applying the five-month waiting period for Disability Insurance Benefits (DIB) (DI 25501.300A.4) to a Childhood Disability Benefits (CDB) case. CDB does not have a five-month waiting period, per DI 25501.330A.5.

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  Failing to apply the Windfall Elimination Provision after the beneficiary notified and provided evidence to SSA of their non-covered pension (even if SSA did correctly apply the Government Pension Offset), see GN 04030.100B.1.

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  Terminating benefits in a cessation case as of the month disability ceased, rather than at the close of the second month following the month disability ceased, as described in DI 10105.010C.

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  The claimant submitted evidence to SSA prior to SSA's making its determination, such as a medical report or additional earnings. SSA failed to associate the evidence with the claim correctly prior to making the determination. If SSA had associated the evidence with the claim correctly, it would have resulted in a different conclusion.

As set out in Social Security Ruling (SSR) 17-1p, an Error on the Face of the Evidence also exists when SSA:

1. (1) 

   applied a law that the Supreme Court of the United States later found unconstitutional; and

2. (2) 

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

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

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  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 from recognizing a valid same-sex marriage for purposes of determining entitlement to or eligibility for benefits in States that recognize same sex marriages. SSA may reopen determinations or decisions, under normal reopening procedures, if:

  1. (1) 

     the agency's determination or decision 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.

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  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. SSA may reopen determinations or decisions, under normal reopening procedures, where:

  1. (1) 

     the agency's determination or decision did not recognize a same-sex marriage because at the time State law prohibited such recognition; and

  2. (2) 

     non-recognition of the same-sex marriage affected eligibility, entitlement, or payment amount.

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

If an SSA employee believes it may be appropriate, based on a 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, the SSA employee must obtain an OGC opinion on whether (SSR) 17-1p applies to the relevant Supreme Court case before proceeding.

Additional guidance applies when reopening and correcting SSA/IRS Reconciliation cases for an Error on the Face of the Evidence.

The instructions in GN 04010.020A through GN 04010.020E explain when it is possible to reopen a determination or decision based on Error on the Face of the Evidence. If the criteria are not met, SSA cannot reopen a determination or decision based on Error on the Face of the Evidence. In the following examples, the criteria for reopening a determination or decision based on Error on the Face of the Evidence are not met:

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  There is a shift in the weight of the evidence based on evidence received since the time when the determination or decision was made.

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  A different inference is drawn from the evidence, but the evaluation of the evidence at the time of the determination or decision nevertheless was reasonable.

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  The statute or regulations were amended. If the amendment provides for reopening or has retroactive effect, consult OGC. For the effect of a statutory change, see GN 04001.110.

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  SSA can now apply a different rule of law. NOTE: If SSA 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 GN 04010.020D.

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  An SSA employee did not document a note in the case record, or anywhere in SSA records, even though required to based on policy. A failure to document does not necessarily mean that the determination or decision itself is incorrect. Without specific evidence in the case record, or any evidence of record anywhere within SSA records, showing that it is clear that the determination or decision was incorrect, lack of documentation on its own does not meet the standard to reopen a determination or decision under Error on the Face of the Evidence, per GN 04010.020A.

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  An SSA employee did not follow policy when making their determination or decision, but the end result was still a correct determination or decision. SSA does not reopen correct determinations or decisions, per GN 04001.070.

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  In a denied disability case file there is a note indicating there may be "other" medical records. Those "other" medical records were never submitted to SSA, thus not evidence in SSA records at the time SSA made the determination or decision.

SSA employees must document, per GN 04001.080:

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  The rationale used to reopen a determination or decision; or

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  If SSA only considered reopening a determination or decision, but determined the rules of administrative finality prohibit reopening.

For instructions on:

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  Title XVI Administrative Finality-Reopening Policies, see SI 04070.000.

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  Title XVI and good cause for reopening under the 2-year rule (including Error on the Face of the Evidence), see SI 04070.010F.5.

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  Reopening and:

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    Disability cases, see DI 27500.000.

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    Continuing disability reviews, see DI 28501.000.

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    Disability hearings, see DI 29000.000.