Effective Dates: 2/24/2022 - Present
Identification Number:
| EM-21007 REV 2
|
| Intended Audience: | All RCs/ARCs/ADs/FOs/TSCs/PSCs
/OCO/OCO-CSTs/OHO/OARO |
| Originating Office: | ORDP OISP |
| Title: | Thornton District Court Decision: Claims, Appeals, and Reopening Requests - One-Time Instruction |
| Type: | EM - Emergency Messages |
| Program: | Title II (RSI) |
| Link To Reference: | See References at the end of this EM. |
|
Retention Date: 10/24/2024
Summary of Changes
This Emergency Message (EM) replaces the prior version.
We are making these instructions viewable by the public.
A. Purpose
This EM provides instructions for handling claims, appeals, and reopening requests for widow(er)’s benefits based on the Thornton District Court decision. These instructions apply to cases involving survivors of same-sex relationships who were unable to marry the number holder (NH) prior to the NH’s death due to an unconstitutional State law prohibiting same-sex marriage. Under Thornton, we may not deny benefits to such a survivor if, based on the information provided, the adjudicator determines the survivor and the NH would have met the marriage requirement but for an unconstitutional State law that prohibited same-sex marriage (provided the survivor meets all other factors of entitlement for widow(er)’s benefits).
Follow the instructions in this EM to:
· Process claims, appeals, and reopening requests for widow(er)’s benefits based on the Thornton District Court decision when the application filing date is on or before November 25, 2020; and
· Process claims, appeals, and reopening requests for widow(er)’s benefits based on the Thornton District Court decision when the application filing date is November 26, 2020 or later. This includes those previously on hold.
For policy on application filing date, see GN 00204.007.
NOTE: If you are able to establish a marital relationship based on GN 00210.002, follow the instructions in that section and do not apply the instructions in this EM.
B. Background
Thornton v. Commissioner of Social Security, 2:18-cv-01409-JLR (W.D. Wash.)
The Thornton case involves the surviving partner of a same-sex relationship who never married her deceased partner due to an unconstitutional State law that banned same-sex marriage. The Social Security Administration (SSA) denied the surviving partner’s claim for widow’s benefits because the surviving partner did not meet the Act’s marriage requirement to qualify for benefits as a widow.
On September 11, 2020, the United States District Court for the Western District of Washington ruled against the agency in Thornton and reversed the agency’s final decision denying Ms. Thornton’s claim for widow’s benefits. The court also certified a nationwide class and, in a later order, prohibited the agency from denying benefits without determining whether survivors of same-sex relationships, who were prevented from marrying by unconstitutional laws barring same-sex marriage, would otherwise be entitled to widow(er)’s benefits. The District Court limited its ruling to claims filed before November 25, 2020.
This injunction applies to survivors of same-sex relationships who filed claims for widow(er)’s benefits on or before November 25, 2020, where (1) the claimant was unable to marry the NH prior to the NH’s death due to an unconstitutional State law prohibiting same-sex marriage, and (2) the claim for widow(er)’s benefits was denied or held because the claimant did not meet the marriage requirement.
To end the ongoing litigation, SSA agreed to allow surviving partners of same- sex relationships who file applications on or after November 26, 2020 and allege that unconstitutional state laws prevented them from marrying before the NH’s death to have claims processed under the instructions in this EM. Although a surviving partner of a same-sex relationship who files an application on or after November 26, 2020, is not a class member, that individual will benefit from additional consideration pursuant to the decision in Thornton and this EM.
C. Determine if we can treat the marriage requirement as satisfied based on the decision in Thornton v. Commissioner
For information on what factors and evidence to consider, see Sections D and E of this EM and GN 00301.010.
Based on the information provided, determine whether the couple would have married before the NH’s death but for an unconstitutional State law that prohibited same-sex marriage and can therefore be treated as meeting the marriage requirement under Thornton.
If you determine the couple would have met the marriage requirement but for an unconstitutional State law prohibiting same-sex marriage and all other factors of entitlement for widow(er)’s benefits are met, follow instructions in Section F of this EM to process the claim for benefits recognizing the claimant as a surviving spouse.
If you determine the couple would not have married even if there had been no unconstitutional prohibition of same-sex marriage, follow instructions in Section F of this EM to refer the claim, reconsideration request, or refusal to reopen to a management official or Claims Technical Expert (CTE) for secondary review of the determination before adjudicating (for refusals to reopen, manually clearing) the claim. If the surviving partner is not entitled to additional consideration pursuant to Thornton after applying Sections D.1, D.2, D.3 of this EM, secondary review is not needed.
NOTE: If you are unable to make a determination based on the evidence submitted, or if you determine the couple would have married less than 9 months before the NH died, submit the claim for a legal opinion following instructions in GN 01010.815.
D. Evaluating circumstances that prevented the couple from meeting the marriage requirement
1. Conduct a thorough interview with the claimant about the circumstances that resulted in the claimant not marrying the NH. Document those circumstances on the REMARKS (RMKS) screen in the Modernized Claims System (MCS) application path, a Report of Contact (RPOC) in MCS, or other electronic writing.
NOTE: If the claimant is deceased, obtain information about the claimant’s relationship with the NH from others, such as an individual who contacted SSA about the claim of the deceased claimant.
2. When did the claimant begin a relationship with the NH?
a. If the relationship began before June 26, 2015, the date same-sex marriage became legal in all states, proceed to Section D.3 of this EM.
b. If the relationship began on or after June 26, 2015, the date same-sex marriage became legal in all states, at no time did an unconstitutional State law prevent them from marrying. As a result, do not find that the couple would have married but for an unconstitutional State law and do not find that the claimant is entitled to additional consideration pursuant to Thornton. Proceed to Section F of this EM for further instructions on denying claim, affirming initial determination at reconsideration level, or refusal to reopen.
NOTE: If the relationship began on or after June 26, 2015, the claimant will not receive additional consideration pursuant to the Thornton decision and a secondary review is not needed.
c. Example: Tim and John met in California on July 4, 2016 and became engaged on February 14, 2017. Tim unexpectedly passed away on July 1, 2017. Same-sex marriage became legal in all states on June 26, 2015. Because Tim and John met after the date same-sex marriage became legal in all states, at no time did an unconstitutional State law prevent them from marrying. As a result, John is not entitled to additional consideration pursuant to Thornton. Also, do not find that Tim and John would have married but for an unconstitutional State law.
3. When did the NH die?
a. If before June 26, 2017, proceed to Section D.4 of this EM.
b. If on or after June 26, 2017, we will presume that the claimant and NH were not prevented from marrying by unconstitutional state law unless the claimant provides evidence showing that the presumption is rebutted by the totality of the circumstances (see instructions following the “NOTE”).
NOTE: If the claimant does not provide evidence showing the presumption is rebutted by the totality of the circumstances, the claimant will not receive additional consideration pursuant to the Thornton decision. Proceed to Section F of this EM for further instructions on denying the claim, affirming the initial determination at reconsideration level, or refusal to reopen. A secondary review is not needed.
To determine if totality of the circumstances explains the couple’s failure to marry by June 26, 2017:
· Conduct a thorough interview with the claimant about the circumstances that resulted in the claimant not marrying the NH. Document those circumstances on the REMARKS (RMKS) screen in the Modernized Claims System (MCS) application path, a Report of Contact (RPOC) in MCS, or other electronic writing.
· Consider all available evidence (see Sections D.4 and E of this EM, GN 00301.010, and GN 00301.305) of the factual circumstances that resulted in the couple not marrying by June 26, 2017. Keep in mind the examples below are not all-inclusive. Here are some questions you may consider in making the determination:
· Ask the claimant why they did not marry between June 26, 2015, and June 26, 2017.
· Was one member of the couple incapacitated by illness or injury between June 26, 2015, and June 26, 2017?
· Was one member of the couple deployed overseas without interruption between June 26, 2015, and June 26, 2017?
c. Examples
The following examples help illustrate the above considerations:
· Example 1: Beginning in January 1980, Beth and Maria lived together continuously in Florida. During their relationship, they purchased a house and three cars together. Beth named Maria as the beneficiary on her life insurance policy, and Maria named Beth as the beneficiary on her policy. Maria also named Beth as the beneficiary of her retirement benefit at work. Beth and Maria expressed to friends and family their desire to be married, and Beth alleges she and Maria would have married as early as June 1990, had they been permitted to do so. Maria was diagnosed with Alzheimer’s disease in 2010. She became incapacitated and unable to care for herself in 2012. Beth cared for Maria until she died on March 1, 2019. Same-sex marriage became legal in Florida on January 5, 2015. When Beth applied for widow’s benefits on Maria’s earnings record, her application was denied solely because she was not Maria’s spouse. In this case, the evidence supports the conclusion that but for Florida’s unconstitutional prohibition on same-sex marriage, Beth and Maria would have married in June 1990, and were unable to marry before June 26, 2017, because Maria was incapacitated due to her illness. The totality of the circumstances rebuts the presumption. As a result, find that Beth and Maria would have married on June 1, 1990 (the earliest date supported by the evidence) but for Florida’s unconstitutional State law. Process Beth’s claim for benefits as Maria’s surviving spouse. Accept Beth’s allegation (which is accompanied by credible supporting evidence) that she and Maria would have married in June 1990 and use June 1, 1990 as the marriage date.
· Example 2: Beginning in January 1990, Joe and Larry lived together continuously in Hawaii. Same-sex marriage became legal in Hawaii on December 2, 2013. Joe and Larry talked about getting married but never did so. Larry had a stroke on June 26, 2016 and became incapacitated and unable to care for himself as of that date. Joe cared for Larry until he died on March 1, 2019. When Joe applied for widower’s benefits on Larry’s earnings record, his application was denied solely because he was not Larry’s spouse. Joe’s application for widower’s benefits should not be granted because the evidence does not show the couple would have married but for a State law prohibiting same-sex marriage. Instead, under Hawaii law, the couple could have married as early as December 2013, more than two years before Larry’s stroke, but they chose not to. It was the couple’s personal decision to wait that prevented them from satisfying the marriage requirement, not any unconstitutional State law. The totality of the circumstances does not rebut the presumption. As a result, do not find that Joe and Larry would have married but for an unconstitutional State law and do not find that Joe, the claimant, is entitled to additional consideration pursuant to Thornton.
4. Consider all available evidence of the factual circumstances that resulted in the couple not marrying. Keep in mind the examples below are not all-inclusive. Here are some questions you may consider in making the determination:
· Would the claimant have married their partner if not for a State law that prohibited same-sex marriage?
· What date would the couple have married if they were not prohibited from doing so?
· Did the law of the State where the couple lived permit same-sex marriages before the NH died? For information about when States and U.S. territories permitted same-sex marriages, refer to GN 00210.003.
· Did the couple have a commitment ceremony or attempt to have the relationship formally recognized in any other way prior to the NH’s death?
· Did the couple exchange commitment rings?
· Was the claimant in a committed relationship with the NH? If so, for how long?
· Did the couple live together? If yes, how long did they live together?
· Did they own property together?
· Did the claimant inherit from the NH based on a will?
· Did the NH name the claimant as a beneficiary for life insurance or retirement benefits?
· Did the couple have children together or did they raise any children together from prior relationships?
· Did the claimant and the NH share joint responsibility to care for one another?
· Would the claimant and the NH have been otherwise eligible to marry if the law had not barred same-sex couples from marriage? Consider the following questions when determining whether the parties were eligible to marry:
· Were the claimant and NH related to each other in a way that would prevent them from marrying?
· Were the claimant and NH both over the age of 18 during their relationship (or, if not, over the relevant age of majority to marry)?
· Were the claimant and NH prevented from marrying each other because one of them was married to someone else?
· Did the couple choose not to marry prior to the NH’s death for reasons other than a State law prohibition on same-sex marriages?
· Is there any other available evidence regarding whether the couple would have married, and what date they would have married, if State law did not prohibit same-sex marriages?
Examples:
The following examples help illustrate the above considerations:
· Example 1: Beginning in January 1980, Janice and Abigail lived together continuously in Georgia. During their relationship, they purchased a house and three cars together. Janice named Abigail as the beneficiary on her life insurance policy, and Abigail named Janice as the beneficiary on her policy. Abigail also named Janice as the beneficiary of her retirement benefit at work. Janice and Abigail expressed to friends and family their desire to be married, and Janice alleges she and Abigail would have married as early as June 1990, had they been permitted to do so. Abigail died in December 2010. Same-sex marriage became legal in Georgia on June 26, 2015. When Janice applied for widow’s benefits on Abigail’s earnings record, her application was denied solely because she was not Abigail’s spouse. In this case, the evidence supports the conclusion that but for Georgia’s unconstitutional prohibition on same-sex marriage, Janice and Abigail would have married in June 1990. As a result, find that Janice and Abigail would have married on June 1, 1990 (the earliest date supported by the evidence) but for Georgia’s unconstitutional State law. Process Janice’s claim for benefits as Abigail’s surviving spouse. Accept Janice’s allegation (which is accompanied by credible supporting evidence) that she and Abigail would have married in June 1990 and use June 1, 1990 as the marriage date.
· Example 2: Beginning in January 1990, Greg and Larry lived together continuously in Hawaii. Same-sex marriage became legal in Hawaii on December 2, 2013. Greg and Larry talked about getting married but never did so. Larry died in October 2015. When Greg applied for widower’s benefits on Larry’s earnings record, his application was denied solely because he was not Larry’s spouse. Greg’s application for widower’s benefits should not be granted because the evidence does not show the couple would have married but for a State law prohibiting same-sex marriage. Instead, under Hawaii law, the couple could have married as early as December 2013, nearly two years before Larry’s death, but they chose not to. It was the couple’s personal decision to wait that prevented them from satisfying the marriage requirement, not any unconstitutional State law. As a result, do not find that Greg and Larry would have married but for an unconstitutional State law and refer the claim to a management official or a CTE for secondary review of the determination before adjudicating (for refusals to reopen, manually clearing) the claim.
· Example 3: Beginning in January 1995, Tim and Ricardo lived together continuously in Ohio. On January 1, 2000, they held a commitment ceremony with family and friends, officiated by the minister of their church. Their minister issued them a certificate of holy union. Tim alleges that he and Ricardo would have gotten married on that day if they were able to do so under State law. Ricardo died in June 2010, five years before same-sex marriage became legal in Ohio on June 26, 2015. When Tim applied for widower’s benefits on Ricardo’s earnings record, his application was denied solely because he was not Ricardo’s spouse. In this case, the evidence supports the conclusion that Tim and Ricardo would have married on January 1, 2000, the date of their commitment ceremony, if not for Ohio’s unconstitutional prohibition on same-sex marriage. As a result, find that Tim and Ricardo would have been married on January 1, 2000 but for an unconstitutional State law, and process Tim’s claim for benefits as Ricardo’s surviving spouse. Accept Tim’s allegation (which is accompanied by credible supporting evidence) that he and Ricardo would have married on January 1, 2000, for purposes of indicating a marriage date.
E. Development of Evidence
Evidence is any information presented orally or in writing that helps to establish a fact. Oral statements must be put in written form to be considered evidence for our purposes (see GN 00301.010 and GN 00301.305).
While it is the claimant’s responsibility to submit evidence to establish entitlement to benefits, you must provide assistance in accordance with GN 00301.180. If the claimant does not present the evidence needed for entitlement, you must deny the claim if, after providing assistance:
· the claimant has not responded to the closeout letter discussed in GN 01010.410C.2; or
· the claimant clearly indicated a lack of interest or failure to cooperate; or
· we cannot locate the claimant.
If you are unable to make a determination based on the evidence submitted, submit the claim for a legal opinion following instructions in GN 01010.815.
For more information on failure to submit essential evidence, see GN 01010.410.
F. Processing instructions for claims, appeals, and requests to reopen
These instructions apply to claims for widow(er)’s benefits involving a survivor of a same-sex relationship who was unable to marry the NH prior to the NH’s death due to an unconstitutional State law prohibiting same-sex marriage, and who meets all of the factors of entitlement for widow(er)’s benefits except the marriage requirement, as well as requests for further review through the appeal or reopening processes for such claims.
Earlier versions of this EM specified that claims, appeals and reopening requests for widow(er) benefits where claimants allege to be entitled to widow(er)’s benefits pursuant to the Thornton District Court decision, but the application filing date is on or after November 26, 2020, were to be held. To end the litigation, the agency has agreed to process these held claims and claims filed on or after November 26, 2020, under this EM. As a result, while these claims are not a part of the Thornton class, they should be processed pursuant to the instructions in this section.
NOTE: Class counsel submitted a general waiver of 406(b) fees associated with cases processed pursuant to Thornton.
1. Claims
· If the claim is not already pending in MCS with “529” in the unit code, take a claim in MCS. On the RMKS screen, include this statement: “Claimant is pursuing a claim as a result of Thornton v. Commissioner of Social Security and, per the court’s order, is entitled to allege a marriage date despite having not participated in a ceremonial marriage with the deceased NH.”
· If the claim is not already pending in MCS with “529” in the unit code, enter “529” in the last 3 positions of the unit code on the DW01 in MCS. This code will help us identify these cases. If a pending claim already has “626” and a letter in the first 4 positions of the unit code, delete the “626” and letter coding before entering “529” in the last 3 positions. For new claims, do not enter “626” and a letter in the first 4 positions of the unit code as you normally would for a same-sex relationship claim per GN 00210.020A. When a claim is coded with a “529”, the instructions in this EM supersede and replace the instructions in GN 00210.020A regarding the unit type code for same-sex relationship claims.
· Advise the claimant we need more information to determine if we can treat the marriage requirement as satisfied based on the decision in Thornton v. Commissioner.
· Use Sections C, D, and E of this EM to develop evidence and determine whether the couple would have married but for an unconstitutional State law prohibiting same-sex marriage, and, if so, what date the couple would have married.
· Prepare an RPOC in MCS clearly stating the rationale for determining the Claimant either is or is not entitled to benefits under Thornton v. Commissioner. Explain (1) your reasons for concluding the couple would or would not have married if an unconstitutional State law had not prohibited same-sex marriage before the NH died; (2) if you find the couple would have married, how you determined what date they would have married; and (3) whether or not the claimant is entitled to widow(er)’s benefits pursuant to Thornton.
NOTE: If you are unable to make a determination based on the evidence provided, or if you determine the couple would have married less than 9 months before the NH died, submit the claim for a legal opinion following instructions in GN 01010.815.
a. The couple would have married but for an unconstitutional State law
If, based on the information provided, you determine the Claimant would have met the marriage requirement but for an unconstitutional State law prohibiting same-sex marriage, and the claimant meets all other factors of entitlement for widow(er)’s benefits, determine what date the Claimant would have married the NH and process the application recognizing the Claimant as a surviving spouse.
· If the evidence supports the date the Claimant alleges, they would have married the NH if not prohibited by State law, as recorded on the NH Marriage (NMAR) and Beneficiary Marriage (BMAR) screens, enter “Y” in the marriage date “Proof” field on these screens. When the evidence supports a different date of marriage from what the claimant alleged, update the NMAR and BMAR screens in MCS with the date of marriage that was determined by evaluation of the evidence and enter “Y” in the marriage date “Proof” field on these screens.
NOTE: If the Claimant identifies a time period when they would have married the NH, and that time period is supported by the information provided, enter the earliest date within that time period for the Claimant’s marriage date. For example, if the Claimant alleges the couple would have married in June or July 1990, enter June 1, 1990 as the marriage date.
NOTE: If you determine the couple would have married at least 9 months before the NH’s death but the information provided does not allow you to identify a specific date on which they would have married, enter a date that is exactly 9 months earlier than the date of the NH’s death. If, however, you determine the marriage date would not have been at least 9 months before the NH’s death, submit for a legal opinion following the instructions in GN 01010.815.
· Review the Claimant’s record to determine whether the Claimant is currently receiving other benefits. If the claimant is entitled to widow(er)’s benefits pursuant to Thornton and is currently receiving other benefits, see Section F.1.c in this EM.
2. Appeals
· Enter a “Y” next to “Incomplete” on the NOT3 screen for an incomplete notice.
· Adjudicate the appeal using standard procedures.
c. Hearing Requests
Confirm the initial claim and reconsideration were denied using denial code 030 (Not the spouse/widower, under State law or deemed marriage provision), 208 (Cash benefits (same sex marriage) Pre-Windsor Court decision 06/26/13), or 209 (Cash benefits (same sex marriage) denied based on non-recognition state of domicile).
· Follow instructions in EM 21000 SEN REV 4.
· Ensure the comment “Thornton court case” is included in the subject line of any email correspondence.
· FO will add comment “Use case characteristic THOR to identify as Thornton District Court Decision Case” to any email correspondence.
3. Requests to reopen
These instructions apply to survivors of same-sex relationships who question a prior final determination or decision in which their claim for widow(er)’s benefits was denied for failure to meet the marriage requirement.
NOTE: If the claimant is deceased and someone contacts SSA on their behalf, see Section F.3.c of this EM.
Because these prior final determinations or decisions may have been based on unconstitutional State laws prohibiting same-sex marriage, reference GN 04010.020A and GN 04020.080 on how to reopen such claims.
· Ensure the claim was denied using denial code 030 (Not the spouse/widower, under State law or deemed marriage provision), 208 (Cash benefits (same sex marriage) Pre-Windsor Court decision 06/26/13), or 209 (Cash benefits (same sex marriage) denied based on non-recognition state of domicile).
· Load a new segment in MCS. On the RMKS screen, include a statement that the claimant thinks the prior determination was incorrect. Since this is not a new application requiring attestation, do not include the following statement that is to be added in RMKS for new claims: “Claimant is pursuing a claim as a result of Thornton v. Commissioner of Social Security and, per the court’s order, is entitled to allege a marriage date despite having not participated in a ceremonial marriage with the deceased NH.”
· Enter “529” in the last 3 positions of the unit code on the DW01 in MCS to identify these cases. If the claim already has “626” and a letter in the first 4 positions of the unit code, delete the “626” and letter coding before entering “529” in the last 3 positions. When a claim is coded with a “529”, the instructions in this EM supersede and replace the instructions in GN 00210.020A regarding the unit type code for same-sex relationship claims.
· Advise the Claimant we need more information to determine if we can treat the marriage requirement as satisfied based on the decision in Thornton v. Commissioner.
· Use Sections C, D, and E of this EM to develop evidence and determine whether the couple would have married but for an unconstitutional State law prohibiting same-sex marriage, and, if so, what date the couple would have married.
NOTE: If you are unable to make a determination based on the evidence provided, or if you determine that the couple would have married less than 9 months before the NH died, submit the claim for a legal opinion following instructions in GN 01010.815.
a. If, after developing the evidence, you determine the couple would have been married but for an unconstitutional State law prohibiting same-sex marriage:
· Reopen the claim pursuant to GN 04010.20A and GN 04020.80.
· Prepare a RPOC in MCS clearly stating the rationale for determining the surviving partner qualifies for benefits under Thornton v. Commissioner. Explain (1) your reasons for concluding the couple would have married if an unconstitutional State law had not prohibited same-sex marriage before the NH died; (2) if you find the couple would have married, how you determined what date they would have married; and (3) whether or not the claimant is entitled to widow(er)’s benefits pursuant to Thornton.
· Follow the instructions in Section F.1.a of this EM.
b. If, after developing the evidence, you determine the couple would not have married even if there had been no unconstitutional State law prohibiting same-sex marriage:
· Do not reopen the claim.
· Prepare a RPOC in MCS clearly stating the rationale for determining the surviving partner does not qualify for benefits under Thornton v. Commissioner. Explain your reasons for concluding the couple would not have married even if there had been no unconstitutional law prohibiting same-sex marriage.
· Refer the case to a management official or CTE for a secondary review of your conclusion not to reopen the prior denial, before sending any notice in section H.
NOTE: If the claimant is not entitled to additional consideration pursuant to the Thornton decision (see Sections D.1, D.2, and D.3 of this EM), a secondary review is not needed.
· If the management official or CTE concurs with your conclusion, the management official or CTE will prepare a RPOC in MCS clearly stating the rationale for determining the surviving partner does not qualify for benefits under Thornton v. Commissioner.
· If the management official or CTE disagrees with your conclusion, the management official or CTE will prepare a RPOC in MCS clearly stating the rationale for determining the surviving partner qualifies for benefits under Thornton v. Commissioner. Contact Regional Support Staff for any additional guidance to resolve conflicting rationales. If the final determination is the claimant qualifies for benefits under Thornton v. Commissioner, see instructions in F.1.a in this EM.
· If the final determination is the surviving partner does not qualify for benefits under Thornton v. Commissioner, manually clear the claim.
· Prepare and send the “Thornton Class Action - Refusal to Reopen” notice via DPS, which includes Universal Text Identifiers (UTI) CAS029 and CAS027. For UTI language, see Section H of this EM.
c. If the claimant is deceased and someone contacts SSA on their behalf based on the Thornton decision
· If that person provides the deceased claimant’s name and SSN, and would be eligible to receive an underpayment on the deceased claimant’s record (see GN 02301.030), follow the instructions in F.3, F.3.a, and F.3.b. of this EM.
· If that person would not be eligible to receive an underpayment on the deceased claimant’s record (see (GN 02301.030), explain to them that we can take another look at the deceased person’s claim if someone who would be due an underpayment on the deceased person’s record contacts us.
G. Program Service Center Instructions
When you receive a case with an incomplete notice, check the DW01 screen in MCS for a “529” code in the last 3 positions of the unit code. If the “529” code is present in the last 3 positions of the unit code on the DW01, follow these instructions.
· If the most recent RPOC rationale for the determination states the couple qualifies for benefits under Thornton v. Commissioner:
o For initial claims, include UTIs CAS026, CAS027, and CAS031 in the notice.
o For claims that have been reopened, include UTIs CAS025, CAS026, CAS027, and CAS031 in the notice.
· If the most recent RPOC rationale for determination states the couple does not qualify for benefits under Thornton v. Commissioner, include UTIs CAS028 and CAS027 for disapproved claims.
· If request to reopen was for deceased claimant pursuant to Section F.3.c, send notice to the individual who is eligible for an underpayment on the deceased claimant’s record who contacted SSA on behalf of the deceased claimant. For example, send notice to Jessica Smith on behalf of Troy Brown (Deceased).
For UTI language, see Section H of this EM.
H. New UTIs for award, denial, and reopening notices for claims processed pursuant to Thornton
IMPORTANT: If an initial claim, appeal, or request to reopen is processed using the instructions in this EM use these UTIs. Do not use standard notice language.
CAS025 with Fill-ins (Used only when widow(er)’s benefits are awarded as a result of reopening pursuant to Thornton):
As requested, we reviewed *F1 case again to determine if we should revise our *F2 denial for *F3 benefits based on the Social Security record of *F4 late partner.
| Fill-in values: |
| Fill-in *F1 |  |
| Choice 1 | your |
| Choice 2 | Beneficiary’s Name (possessive) |
| Fill-in *F2 | Date of the denial notice for widow’s or widower’s benefits that the individual requested SSA reopen |
| Fill-in *F3 |  |
| Choice 1 | widow’s |
| Choice 2 | widower’s |
| Fill-in *F4 |  |
| Choice 1 | your |
| Choice 2 | his |
| Choice 3 | her |
CAS026 with Fill-ins (Used in award notices for claims processed pursuant to Thornton):
Payments Ordered by the District Court
On September 11, 2020, the United States District Court for the Western District of Washington certified a nationwide class in the case, Thornton v. Commissioner of Social Security. Thornton involves certain claims for Social Security widow’s or widower’s benefits filed by the surviving member of a same-sex couple who never married due to an unconstitutional State law prohibiting same-sex marriage. In Thornton, we denied a claim because we found that the same-sex couple did not meet the marriage requirement for the surviving partner to qualify for benefits as a widow under the Social Security Act.
The District Court decided that we could not deny claims for Social Security widow’s or widower’s benefits filed by the surviving member of a same-sex couple just because the couple was not married, if they were prevented from marrying prior to their partner’s death due to an unconstitutional State law. The District Court decided that we also had to determine whether the couple would have married if an unconstitutional State law did not prohibit same-sex marriage.
After reviewing *F1 for *F2 benefits based on the Social Security record of *F3 late partner, we determined that *F4 entitled to additional consideration pursuant to Thornton. We reviewed *F5 claim and decided that *F6 would have married *F7 partner if an unconstitutional State law did not prevent same-sex marriage before *F8 partner’s death. Because *F9 and *F10 partner would have married if *F11 could have, we find that *F12 the marriage requirement under the Social Security Act to qualify for *F13 benefits. After reviewing the information in *F14 case, we decided that *F15 and *F16 partner would have married as of *F17 if not for an unconstitutional State law.
| Fill-in values: |
| Fill-in *F1 for initial claim awards |  |
| Choice 1 | your application |
| Choice 2 | Beneficiary’s Name (possessive) application |
| Fill-in *F1 for awards that are the result of a reopening |  |
| Choice 1 | your case again |
| Choice 2 | Beneficiary’s Name (possessive) case again |
| Fill-in *F2 |  |
| Choice 1 | widow’s |
| Choice 2 | widower’s |
| Fill-in *F3 |  |
| Choice 1 | your |
| Choice 2 | his |
| Choice 3 | her |
| Fill-in *F4 |  |
| Choice 1 | you are |
| Choice 2 | he is |
| Choice 3 | she is |
| Fill-in *F5 |  |
| Choice 1 | your |
| Choice 2 | his |
| Choice 3 | her |
| Fill-in *F6 |  |
| Choice 1 | you |
| Choice 2 | Beneficiary’s Name |
| Fill-in *F7 |  |
| Choice 1 | your |
| Choice 2 | his |
| Choice 3 | her |
| Fill-in *F8 |  |
| Choice 1 | your |
| Choice 2 | his |
| Choice 3 | her |
| Fill-in *F9 |  |
| Choice 1 | you |
| Choice 2 | Beneficiary’s Name |
| Fill-in *F10 |  |
| Choice 1 | your |
| Choice 2 | his |
| Choice 3 | her |
| Fill-in *F11 |  |
| Choice 1 | you |
| Choice 2 | they |
| Fill-in *F12 |  |
| Choice 1 | you meet |
| Choice 2 | [Beneficiary’s Name] meets |
| Fill-in *F13 |  |
| Choice 1 | widow’s |
| Choice 2 | widower’s |
| Fill-in *F14 |  |
| Choice 1 | your |
| Choice 2 | Beneficiary’s Name (possessive) |
| Fill-in *F15 |  |
| Choice 1 | you |
| Choice 2 | Beneficiary’s Name |
| Fill-in *F16 |  |
| Choice 1 | your |
| Choice 2 | his |
| Choice 3 | her |
| Fill-in *F17 | Date the surviving partner and number holder would have married |
CAS027 (No Fill-ins) (Used in award, denial, and refusal to reopen notices for claims processed pursuant to Thornton):
Lambda Legal and Nossaman LLP represent the members of the Thornton class action. Their contact information is below. You may contact them if you have any questions about the Thornton class action.
Peter C. Renn
Lambda Legal
4221 Wilshire Blvd., Suite 280
Los Angeles, CA 90010
Telephone: 213-382-7600
Email:Thorntonclassmembers@lambdalegal.org
Linda R. Larson
Nossaman LLP
719 Second Avenue, Ste. 1200
Seattle, WA 98104
Telephone: 206-395-7630
Email: llarson@nossaman com
Robert D. Thornton
Nossaman LLP
18101 Von Karman Avenue, Ste. 1800
Irvine, CA 92612
Telephone: 949-833-7800
Email: rthornton@nossaman.com
CAS028 with Fill-ins (Used in denial notices for claims processed pursuant to Thornton):
On September 11, 2020, the United States District Court for the Western District of Washington certified a nationwide class in the case, Thornton v. Commissioner of Social Security. Thornton involves certain claims for Social Security widow’s or widower’s benefits filed by the surviving member of a same-sex couple who never married due to unconstitutional State laws prohibiting same-sex marriage. In Thornton, we denied a claim because we found that the same-sex couple did not meet the marriage requirement for the surviving partner to qualify for benefits as a widow under the Social Security Act.
The District Court decided that we could not deny claims for Social Security widow’s or widower’s benefits filed by the surviving member of a same-sex couple just because the couple was not married, if they were prevented from marrying prior to their partner’s death due to an unconstitutional State law. The District Court decided that we also had to determine whether the couple would have married if an unconstitutional State law did not prohibit same-sex marriage.
We reviewed *F1 application for *F2 benefits based on the Social Security record of *F3 late partner. As required by the District Court’s decision in Thornton, we considered whether *F4 would have married *F5 partner if an unconstitutional State law did not prevent same-sex marriage before *F6 partner’s death. After reviewing the information in *F7 case, we decided that *F8 and *F9 partner would not have married even if there had been no unconstitutional State law prohibiting same-sex marriage. Therefore, we find that *F10 qualify for *F11 benefits.
| Fill-in values: |
| Fill-in *F1 |  |
| Choice 1 | your |
| Choice 2 | Beneficiary’s Name (possessive) |
| Fill-in *F2 |  |
| Choice 1 | widow’s |
| Choice 2 | widower’s |
| Fill-in *F3 |  |
| Choice 1 | your |
| Choice 2 | his |
| Choice 3 | her |
| Fill-in *F4 |  |
| Choice 1 | you |
| Choice 2 | Beneficiary’s Name |
| Fill-in *F5 |  |
| Choice 1 | your |
| Choice 2 | his |
| Choice 3 | her |
| Fill-in *F6 |  |
| Choice 1 | your |
| Choice 2 | his |
| Choice 3 | her |
| Fill-in *F7 |  |
| Choice 1 | your |
| Choice 2 | Beneficiary’s Name (possessive) |
| Fill-in *F8 |  |
| Choice 1 | you |
| Choice 2 | Beneficiary’s Name |
| Fill-in *F9 |  |
| Choice 1 | your |
| Choice 2 | his |
| Choice 3 | her |
| Fill-in *F10 |  |
| Choice 1 | you do not |
| Choice 2 | (Beneficiary’s Name) does not |
| Fill-in *F11 |  |
| Choice 1 | widow’s |
| Choice 2 | widower’s |
CAS029 with Fill-ins (Used in refusal to reopen notices for reopening requests processed pursuant to Thornton):
As requested, we reviewed *F1 case again to determine if we should revise our *F2 denial for *F3 benefits based on the Social Security record of *F4 late partner.
On September 11, 2020, the United States District Court for the Western District of Washington certified a nationwide class in the case, Thornton v. Commissioner of Social Security. Thornton involves certain claims for Social Security widow’s or widower’s benefits filed by the surviving member of a same-sex couple who never married due to unconstitutional State laws prohibiting same-sex marriage. In Thornton, we denied a claim because we found that the same-sex couple did not meet the marriage requirement for the surviving partner to qualify for benefits as a widow under the Social Security Act.
The District Court decided that we could not deny claims for Social Security widow’s or widower’s benefits filed by the surviving member of a same-sex couple just because the couple was not married, if they were prevented from marrying prior to their partner’s death due to an unconstitutional State law. The District Court decided that we also had to determine whether the couple would have married if an unconstitutional State law did not prohibit same-sex marriage.
As required by the District Court’s decision in Thornton, we considered whether *F5 would have married *F6 partner if an unconstitutional State law did not prevent same-sex marriage before *F7 partner’s death. After reviewing the information in *F8 case again, we decided that *F9 and *F10 partner would not have married even if there had been no unconstitutional State law prohibiting same-sex marriage.
Because *F11 and *F12 partner never married, *F13 not entitled to Social Security benefits as a *F14. Therefore, we cannot revise our previous denial for benefits based on the Social Security record of *F15 late partner.
| Fill-in values: |
| Fill-in *F1 |  |
| Choice 1 | your |
| Choice 2 | Beneficiary’s Name (possessive) |
| Fill-in *F2 | Date of the denial notice for widow’s or widower’s benefits that the individual requested SSA reopen |
| Fill-in *F3 |  |
| Choice 1 | widow’s |
| Choice 2 | widower’s |
| Fill-in *F4 |  |
| Choice 1 | your |
| Choice 2 | his |
| Choice 3 | her |
| Fill-in *F5 |  |
| Choice 1 | you |
| Choice 2 | Beneficiary’s Name |
| Fill-in *F6 |  |
| Choice 1 | your |
| Choice 2 | his |
| Choice 3 | her |
| Fill-in *F7 |  |
| Choice 1 | your |
| Choice 2 | his |
| Choice 3 | her |
| Fill-in *F8 |  |
| Choice 1 | your |
| Choice 2 | Beneficiary’s Name (possessive) |
| Fill-in *F9 |  |
| Choice 1 | you |
| Choice 2 | Beneficiary’s Name |
| Fill-in *F10 |  |
| Choice 1 | your |
| Choice 2 | his |
| Choice 3 | her |
| Fill-in *F11 |  |
| Choice 1 | you |
| Choice 2 | Beneficiary’s Name |
| Fill-in *F12 |  |
| Choice 1 | your |
| Choice 2 | his |
| Choice 3 | her |
| Fill-in *F13 |  |
| Choice 1 | you are |
| Choice 2 | (Beneficiary’s Name) is |
| Fill-in *F14 |  |
| Choice 1 | widow |
| Choice 2 | widower |
| Fill-in *F15 |  |
| Choice 1 | your |
| Choice 2 | Beneficiary’s Name (possessive) |
CAS031 with fill-ins (Used in award notices for claims processed pursuant to Thornton)
We invite you to visit our website to find general information about Social Security. If you have any specific questions, you may call us toll-free at 1-800-772-1213, call your local Social Security office at *F1, or contact your Regional Communications Director (RCD). To find your RCD’s phone number and email address, visit the Social Security Administration online. We can answer most questions over the phone. If you are deaf or hard of hearing, you may call our TTY number, 1-800-325-0778. You can also write or visit any Social Security office. The office that serves your area is located at:
If you do call or visit an office, please have this letter with you. It will help us answer your questions. Also, if you plan to visit an office, you may call ahead to make an appointment. This will help us serve you more quickly when you arrive at the office.
| Fill-in values: |
| Fill-in *F1 |  FO Phone Number |
| Fill-in *F2 | FO Address Line 1 |
| Fill-in *F3 |  FO Address Line 2 |
| Fill-in *F4 |  FO Address Line 3 |
| Fill-in *F5 |  FO Address Line 4 |
I. Field Office (FO) and National 800 Number Network (N8NN) Instructions for Handling Inquiries
You may receive questions from advocacy groups and members of the public regarding the Thornton case.
· Advise callers that the agency has updated its procedures to comply with the Thornton v. Commissioner court order.
· Refer the caller to the “Notice of Class Action Order: Thornton v. Commissioner of Social Security” webpage.
· Follow the instructions in TC 10010.020 and TC 10001.070 to create initial claims appointments or referrals. Use the REMARKS field in eLAS to provide the FO any special information about the case and enter the code “529”.
Note: Individuals filing claims, appeals, or requests for reopening can follow-up in 90 days after SSA receives their claim if the agency has not notified them of the status.
J. Regional Office (RO) Instructions for Handling Inquiries
Regional Office Support Staff should contact OPSOS for any additional guidance.
Direct all program-related and technical questions to your Regional Office (RO) support staff or Program Service Center (PSC) Operations Analysis (OA) staff. RO support staff or PSC OA staff may refer questions, concerns or problems to their Central Office contacts.
K. References
RS 00207.001 Widow(er)’s Benefits Definitions and Requirements
GN 00204.007 Application Filing Date
GN 00210.002 Determining Marital Status (Marriages and Non-Marital Legal Relationships) for Title II and Medicare Benefits.
GN 00210.003 Dates States and U.S. Territories Permitted Same-Sex Marriages
GN 00210.020 Processing Instructions for Title II Same-Sex Relationship Claims, Reconsiderations, and Hearing Requests
GN 00305.055 Deemed Marriages
GN 02301.000 Policy and Disposition of Underpayments – Table of Contents
GN 04010.020 Reopenings - Error on the Face of the Evidence
GN 04020.080 Unrestricted Reopening - Clerical Error or Error on the face of the Evidence
NL 00601.010 Award Notices
MS 03509.013 Decision Input (DECI)
EM-21000 SEN REV 4 Instructions for Sending Non-Medical Appeals (NMA) to the Office of Hearings Operations (OHO) and Office of Appellate Operations (OAO) using Electronic Non-Medical (ENM) application’s Create, Upload, and Transfer of Jurisdiction Functionality
EM-21007 REV 2 - Thornton District Court Decision: Claims, Appeals, and Reopening Requests - One-Time Instruction - 2/24/2022