BASIC (01-01)

VB 02507.040 Reopening/Revising SVB Determinations — Other Issues

A. POLICY — WHEN NEW AND MATERIAL EVIDENCE JUSTIFIES REVISION

The revision of a final determination or decision is justified if reevaluation of all evidence currently on record supports revision. It is not necessary that the revision be based solely on the new evidence. Rather, all evidence viewed as a whole must justify the conclusion.

New evidence that merely casts doubt on the correctness of the determination or decision does not warrant revision on the basis of “new and material evidence.” However, such evidence can justify or even require that further development be undertaken. If further development results in new and material evidence, the determination or decision should then be revised.

B. POLICY — HOW TO ESTABLISH THE PERIOD OPEN TO REVISION

1. Use of Notice to Count Time for Reopening

  1. The beginning date for reopening all of the following determinations or decisions is counted from the date of the notice of the initial determination:

    Initial determination

    Revised initial determination

    Reconsideration determination

    Revised reconsideration determination

           ALJ decision

           Revised ALJ decision

           AC decision

           Revised AC decision

  2. The ending date for reopening is on the first or second anniversary of the beginning date as shown above. This is true even when the determination has been reconsidered or revised or a decision in the case has been rendered by an ALJ or the AC. When the period for reopening expires on a weekend, legal holiday, or any other day all or part of which is a non-workday by Federal statute or Executive Order, the period is extended to the next full workday.

    EXAMPLE: The notice advising a claimant that he did not qualify for an SVB benefit was dated 8/5/00. A reconsideration notice affirming this determination was dated 9/20/00. Beginning 8/6/01, we cannot reopen either of those determinations based on the 1-year rule. Beginning 8/6/02, we cannot reopen either of those determinations based on the 2-year rule. (Even though the reconsideration determination was made within the 2-year period, the initial determination notice was more than 2 years ago.)

2. Defective Initial Determination Notices

The rules of administrative finality apply to initial determinations where a defective notice was sent (e.g., the appeal paragraph was omitted) the same as to initial determinations where a correct notice was sent. The time limits for reopening in both situations are counted from the date of the notice.

3. Open Applications and Blanket Denial Paragraphs

If the blanket denial paragraph is inadvertently omitted from the notice, it does not mean the notice is defective. It means the application is adjudicated and “closed” only with respect to the specific class of benefits identified in the title of the application form. Administrative finality would apply to the initial determination that was made on the specific class of benefits identified in the title of the application form. The application is not adjudicated and is still "open" with respect to the remaining classes of benefits within the scope of the application.

NOTE: Standard notices of SVB qualification, SVB award and SVB denial include the required appeals and closeout paragraphs. Therefore, defective notices and omitted closeouts should be rare. If for some reason the standard notice was not used in a particular case and it is unclear whether an appeal or blanket paragraph has been added to the notice, a presumption should be made that the paragraph(s) have been added.

4. SVB Cases With Dual Claims Notices

In certain initial claims situations, SVB claimants receive two initial determination notices. The qualification notice is sent first and advises that the claimant meets the general qualification requirements for SVB and that he/she must establish residence outside the United States in four months in order to receive SVB payments. (If the qualification requirements are not met, only one notice is sent.)

The subsequent award or denial notice advises the claimant whether or not SVB payments can actually be made depending on whether residence abroad has been established timely. The later notice (if an award notice) shows the amount of the SVB payment and any other benefit income used to reduce the payment.

If the rules of administrative finality come into play in situations where two claims notices were sent, the notice used to establish the time for reopening/revision would depend on the particular issue involved.

a. Qualification Notice

Generally, use the date of the notice of qualification to determine the period for reopening when evidence indicates that an SVB recipient who received such a notice

  • was not age 65 before 12/14/99; or

  • failed to meet the WWII military service requirements; or

  • was not SSI eligible in 12/99; or

  • was not SSI eligible in the month of filing; or

  • had other benefit income that would have prevented him or her from qualifying for SVB payments; or

  • failed to qualify for SVB under the provisions of PL 106-169 relating to deported aliens, fugitive felons, parole and probation violators and alien residents of a Treasury barred country.

b. Notices of Award or Denial

In most other situations involving dual initial claims determinations, the date of the later award or denial notice should be used to establish the period for reopening/revising the initial claims determination. This includes determinations involving:

  • residence outside the United States;

  • the amount of an SVB payment;

  • the amount of other benefit income used to reduce an SVB payment.

NOTE: Questions regarding the correct initial determination to use in dual determination claims for administrative finality purposes can be referred to the appropriate regional office support staff.

5. Erroneous Death Determinations

SSA does not send a notice when terminating payments due to the death of an SVB recipient. When SSA discovers an erroneous death termination, it can reopen and revise the determination during the 2-year period from the date of the initial determination (i.e., the date the death termination data were input to the system). Proof that the beneficiary is still alive is always new and material evidence. (See VB 01505.020.)

If more than 2 years have passed since the erroneous death termination action, see VB 02501.010 to establish good cause for late filing of an appeal. An appeal can be granted since there was no notice of termination due to death. (SSA Goldberg/Kelly procedures require written advance notice before termination of a living recipient's eligibility.)

6. Change of Statute or Regulations -- Effective Date of Revision

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. Instructions relating to the change will specify the effective date and procedures on reopening and revision.

7. SSA Change of Position — Effective Date of Revision

a. Pending Actions

Unless otherwise specified in the change of position, it will apply as of its effective date to the following:

  • All applications filed or pending on and after the effective date; and

  • All redeterminations, reconsiderations, ALJ hearings, AC reviews and litigation cases initiated or pending on and after the effective date.

NOTE: With regard to reconsiderations and appeals initiated after the effective date , the change is to be applied retroactively to the effective date or 1 year, whichever is later.

b. Cases in Which a Determination or Decision is Questioned After the Change of Position

This includes both cases that are questioned by either the SSA employee or the beneficiary. You may reopen the case and apply the change of position retroactively to the effective date of the change or 1 year, whichever is later.

c. Not Good Cause for Reopening Under the 2-Year Rule

Retroactive changes are limited to 1 year and do not, without the presence of new and material evidence, clerical error or error on the face of the evidence, justify 2-year retroactivity.

8. Class Action Cases (Exception To Normal Rules For Change of Position)

In a Federal class action case, the court may issue an order with retroactive effect requiring SSA to locate and reopen determinations with regard to all or some class members. If so, the normal rules regarding change of position do not apply. In such cases, we must comply with the order and reopen and revise all affected cases as directed, even if the notices of initial determination are more than 1 or 2 years old.


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http://policy.ssa.gov/poms.nsf/lnx/1402507040
VB 02507.040 - Reopening/Revising SVB Determinations -- Other Issues - 03/18/2010
Batch run: 03/18/2010
Rev:03/18/2010