VB 02501.045 Appeals - Interview With Dissatisfied Claimant
A. Procedure - General
If the claimant appears at a Field Office (FO), or a Foreign Service post (FSP) to appeal a decision involving qualification for, entitlement to or continuation of SVB, he or she should receive, if possible, a face-to-face interview on the same day. The interview will be conducted by a service representative or higher level employee in the FO or a designated employee in the FSP. The interviewer will develop the claimant's appeal, if necessary, according to the instructions below and refer the required material to the servicing FO or Central Processing Site (CPS) for further action. See VB 00901.015 for servicing FO or CPS jurisdiction in reconsideration cases and VB 02502.001C. for responsibilities of various components in developing and processing reconsideration requests.
There is no protective filing for appeals. SSA has to actually receive the written request within the time limit (or later, if good cause is established). An appeal request need not be on any special form. If it appears the time limit for requesting an appeal will expire within 10 days, or payment continuation is desired, encourage a claimant who telephones a teleservice center, an FO, or an FSP to send a written statement or visit the FO, or FSP as soon as possible.
B. Procedure - Conducting the Interview
1. Conducting the Interview
Conduct the interview as follows:
Ascertain specific issue(s) with which the claimant disagrees (e.g., age 65, evidence of military service, "other benefit" income, residence outside the United States, SSI eligibility periods);
Explain the determination on his or her claim;
Determine if the claimant is only seeking information/clarification or wants to appeal.
Explain the right to appeal, the time limits, and the right to be represented. Use pamphlets that you can give to the claimant, as guides.
Explain that if the claimant appeals, SSA can review all issues even those decided favorably.
Assist the claimant in filing an appeal, if that is his or her decision. Determine whether there is additional evidence or information that relates to the issue(s) in controversy.
The FO, or FSP should advise claimants who are unsure whether to appeal an adverse determination of the potential impact of not appealing, i.e., possible loss of benefits.
2. Disagreement with Decision on Title II or Title XVI Claims
An application for SVB also serves as an application for monthly benefits under title II and SSI payments under title XVI. If the claimant disagrees with the decision as to his or her entitlement to monthly retirement benefits or to SSI payments, secure a formal application for the benefit in question (if one has not already been filed) and follow the appeal procedures in GN 03100 000 and/or SI 04005.000.
3. Disagreement with Law, Regulations, or Rulings
Explain that SSA has no option other than compliance with these mandates, and that the individual employees who administer the program are not at liberty to substitute their own judgment or opinion for rulings, regulations, or the law. Rely on the relevant sections of the POMS as a basis for explaining any determination or decision that the claimant finds unsatisfactory. Do not attempt to explain the rationale for any particular operational guidelines, nor go to any great lengths to justify them.
Explain the EAP if the claimant continues to argue that the determination/decision is unconstitutional.
4. Appeal Period Expired
If the claimant contacts SSA after the appeals period has expired, advise him or her of the good cause provisions for late filing of an appeal. If the claimant wishes to appeal, take the request and document his or her reasons for being late. See VB 02501.020.
C. Procedure - New Application in Lieu of Appeal
1. Claimant Wishes to File New Title VIII Application
The FO must accept the claimant's request to file a new application and assist him or her in filing the application. Explain that filing a new application is not the same thing as an appeal. An appeal of a determination allows complete review of the basis and rationale for that determination whether or not new evidence is presented to support the appeal request.
Explain that if a new application is filed with no new facts or evidence, the application may be denied without being considered on its merits on the basis of res judicata. (See GN 03101.160) Even if the application is allowed, benefits may be lost.
The 4-month period allowed for a claimant to establish residence outside the United States may be extended (without the need for a new application) if the claimant is appealing determinations under title II, title VIII or title XVI. (See VB 00102.010D.)
2. Claimant Files a New Application
If a claimant files a subsequent application and the subsequent application is to be denied on the basis of res judicata (See GN 03101.160), the adjudicator will first consider the possibility of reopening and revising the earlier application (see VB 02501.001D.1. and VB 02507.000).
If the claimant contacts SSA after the appeal period has expired, advise him or her of the good cause provisions for late filing of an appeal.
3. Claimant Alleges Misinformation
If the claimant alleges he or she failed to appeal an adverse determination under title VIII because of good faith reliance on incorrect, incomplete, or misleading information given by SSA, we cannot deny the subsequent claim on the basis of res judicata (see GN 03101.160) until we determine whether misinformation exists. In such cases, obtain a signed statement from the claimant (or qualified representative) that contains the following information (for oral inquiries, the FO will complete a Report of Contact):
Dates of the alleged contact;
How the contact was made;
Who gave the misinformation; and
The information we provided on the consequences of reapplying for benefits versus appealing an adverse determination and the questions asked by the SSA employee at the time of the contact.
4. Determination of Misinformation
a. Misinformation Not Found
If the FO determines that misinformation does not exist, deny the subsequent application on the basis of res judicata. The FO will send the claimant a notice with appeal rights only on the correctness of applying res judicata and an evaluation of why misinformation does not exist.
b. Misinformation Found
If the FO determines that misinformation does exist, make a determination on the merits of the subsequent application and send a notice to the claimant with full appeal rights, i.e., the right to reconsideration. It is the same as if the claimant filed an appeal request timely although the subsequent application is not an appeal request.
Because misinformation is found to exist, the effect of adjudicating the subsequent application is that the previously adjudicated period must be adjudicated again with appeal rights. It is the same as if the claimant filed an appeal request timely although the subsequent application is not an appeal request.
c. Misinformation Not Alleged
If the claimant files a subsequent application and does not allege misinformation, adjudicate the subsequent application in the usual manner.
5. Misinformation Found After Subsequent Application Denied
If SSA already denied a subsequent application or dismissed an appeal request that was based on res judicata and later determines misinformation was given, vacate the denial or dismissal and issue an initial determination based on the merits of the subsequent application.
NOTE: The level of the administrative review process that first denied or dismissed on the basis of res judicata will make the merits determination or decision.
See GN 00204.008 for guidance on developing misinformation.
See GN 03101.160 for a discussion of res judicata
See VB 02501.001D.1., VB 02507.000 for issues pertaining to reopening under the rules of administrative finality.