Identification Number:
GN 04010 TN 7
Intended Audience:See Transmittal Sheet
Originating Office:ORDP OISP
Title:Reopening Within 4 Years (Title II and Entitlement Under Title XVIII)
Type:POMS Transmittals
Program:All Programs
Link To Reference:
 

PROGRAM OPERATIONS MANUAL SYSTEM
Part GN – General
Chapter 040 – Administrative Finality
Subchapter 10 – Reopening Within 4 Years (Title II and Entitlement Under Title XVIII)
Transmittal No. 7, 02/22/2021

Audience

PSC: BA, CA, CS, DE, DS, ICDS, IES, ILPDS, IPDS, ISRA, PETE, RECONR, SCPS, TSA, TST;
OCO-OEIO: BIES, CR, FCR, FDE, PETL, RECONE, RECONR, RECOVR;
OCO-ODO: BTE, CR, CST, CTE, CTE TE, DE, DEC, DS, PAS, PETE, PETL, RCOVTA, RECONE, RECOVR;
FO/TSC: CS, CS TII, CSR, CTE, DRT, FR, OA, OS, RR, TA, TSC-CSR;

Originating Component

OISP

Effective Date

Upon Receipt

Background

We reviewed, clarified, and revised these administrative finality instructions to improve user understanding of when it is appropriate to reopen an incorrect determination or decision based on Clerical Error and Error on the Face of the Evidence.

Summary of Changes

GN 04010.010 Reopenings - Clerical Error

Subsection A - We transferred content from the prior subsection B into this section, and revised this section to clarify and improve user understanding of what types of errors are and are not subject to the rules of administrative finality. This includes changing the name of Administrative Error to Processing Error and removing language about other agency errors.

Subsection B - We revised this section for easier user access and to improve user understanding of what is Clerical Error subject to the rules of administrative finality.

Subsection C - We added this new subsection, including steps, to assist the user in determining if they can reopen a determination or decision based on Clerical Error, including examples.

Subsection D - We transferred content from the prior subsection B into this section, which pertains to Administrative Error, now called Processing Error, for easier user access and to improve user understanding of what is a Processing Error not subject to the rules of administrative finality, including examples.

Subsection E - We added this new subsection to improve user understanding of cases that involve both a Clerical Error and Processing Error, including examples. We transferred some language from the prior subsection B into this section.

Subsection F - We added this new subsection to clarify the unlikely instance of reopening a case based on Clerical Error made by a computer and directed the user to the appropriate source of guidance should this occur.

Subsection G - We added this new subsection to help ensure users completed the required documentation.

Subsection H - We added this new subsection for easier user access to the title XVI and disablity reopening policy.

 

GN 04010.020 Reopenings - Error on the Face of the Evidence

Subsection A - We clarified this section to improve user understanding of what is Error on the Face of the Evidence.

Subsection B - We added this new subsection, including steps, to assist the user in determining if they can reopen a determination or decision based on Error on the Face of the Evidence.

Subsection C - We transferred and clarified the two examples from the prior subsection A and one example from the prior subsection B into this section and added 8 more examples to improve user understanding of what is Error on the Face of the Evidence and provide easier user access.

Subsection D - We transferred all of the language from the prior subsection A pertaining to the Social Security Ruling (SSR) 17-1p into this section for easier user access and did minor clarifications.

Subsection E - We transferred all of the language from the prior subsection D into this section and did minor clarifications.

Subsection F- We transferred and clarified the four examples from the prior subsection C into this section and added three more examples to improve user understanding of what is not Error on the Face of Evidence and provide easier user access.

Subsection G - We added this new subsection to help ensure users completed the required documentation.

Subsection H - We added this new subsection for easier user access to the title XVI and disability reopening policy.

GN 04010.010 Reopenings - Clerical Error

A. Clerical Error versus a Processing Error

For the purpose of the topic discussed in this section only, there are two types of errors:

  1. 1. 

    Clerical Error, which is subject to the rules of administrative finality, see GN 04010.010B and GN 04010.010C.

  2. 2. 

    Processing Error, which is not subject to the rules of administrative finality, see GN 04010.010D.

For both Clerical Error and Processing Error, SSA treats an error made by a computer the same as an error made by a human.

If the folder documentation is not clear as to whether it was a Clerical Error or a Processing Error, SSA considers that the error occurred while making the determination or decision, therefore a Clerical Error and subject to the rules of administrative finality.

B. Clerical Error subject to the rules of administrative finality

A Clerical Error exists if SSA made the error in the context of making the determination or decision and it is one or more of the following:

  • A mathematical error in the computation or re-computation of benefits.

  • A misapplication of a benefit table in the computation or re-computation of benefits.

  • Any other clerical error in the computation or re-computation of benefits.

For title II, SSA considers the term "benefits" (noted in 1, 2, and 3 above) to include Retirement, Survivors, and Disability Insurance (RSDI) and the Lump Sum Death Payment (LSDP).

C. Steps to help determine if SSA can reopen a title II determination or decision based on Clerical Error

  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?

    • If yes, SSA does not need to determine if it can reopen a determination or decision based on Clerical Error. 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.

    • If no, go to step 2.

  2. 2. 

    Did SSA make the clerical error in the context of making the determination or decision?

    • If yes, go to step 3.

    • If no, SSA cannot reopen the determination or decision based on a Clerical Error. To determine if it is a Processing Error, follow the instructions in GN 04010.010D.

  3. 3. 

    Is the clerical error an error in the computation or re-computation of benefits, per GN 04010.010B?

    • If yes, go to step 4.

    • If no, SSA cannot reopen the determination or decision based on Clerical Error. To determine if SSA can reopen a determination or decision based on Error on the Face of the Evidence or New and Material Evidence, see GN 04010.020 and GN 04010.030.

  4. 4. 

    Was the determination or decision that is subject to possible reopening based on Clerical Error originally favorable or unfavorable to the beneficiary?

    • 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.

    • If unfavorable (the correction would be favorable to the beneficiary), SSA can reopen the determination or decision 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 4 above), then SSA must show it diligently pursued the investigation if the correction is unfavorable to the beneficiary, per GN 04001.060.

EXAMPLE 1: The Claims Specialist (CS) made an addition error in computing a retirement insurance benefit (RIB). The CS computes $1260.00 payable a month, when the correct amount is $1250.00. The affirmative action in writing is within four years of the notice of the initial determination. Because the CS made the clerical error in the context of making the determination and the affirmative action in writing is within four years, SSA can reopen the determination even though the incorrect payment was favorable to the beneficiary and the correction is unfavorable to the beneficiary, per GN 04010.010C, step 4, first bullet.

EXAMPLE 2: The CS made an addition error in computing a RIB. The CS computes $1600.00 payable a month, when the correct amount is $1700.00. Because the CS made the clerical error in the context of making the determination and the error created an incorrect payment unfavorable to the beneficiary and the correction is favorable to the beneficiary, SSA can reopen the determination at any time (there is no time frame), per GN 04010.010C, step 4, second bullet.

D. Processing Error not subject to the rules of administrative finality

A Processing Error is any clerical error that occurs in the processing of the determination or decision after SSA made the determination or decision. Because a Processing Error is not subject to the rules of administrative finality, SSA can correct it at any time, whether the original incorrect payment was favorable or unfavorable to the beneficiary, and whether the correction is favorable or unfavorable to the beneficiary.

EXAMPLE 1 : The CS correctly makes an initial determination that a monthly RIB is $1217.00 and puts the correct amount on the award form. In processing the award, a Benefits Authorizer (BA) incorrectly paid $1218.00, by inadvertently substituting an 8 for a 7. This is a Processing Error that SSA can correct at any time, because the error made by the BA was not made by an SSA employee in the context of making the determination or decision (GN 04010.010B). The Processing Error correction would decrease the $1218 paid by the BA to $1217, effective with the first month of entitlement.

EXAMPLE 2: The CS correctly makes an initial determination that a monthly RIB amount is $1550.00 and puts the correct amount on the award form. In processing the award, the BA incorrectly paid $1540.00 by inadvertently substituting a 4 for the 5. This is a Processing Error that SSA can correct at any time, because the error made by the BA was not made by an SSA employee in the context of making the determination or decision (GN 04010.010B). The Processing Error correction would increase the $1540 paid by the BA to $1550, effective with the first month of entitlement.

E. Cases that involve a Clerical Error and a Processing Error

A case may involve a Clerical Error and a Processing Error. As a result, part of the case is subject to the rules of administrative finality and part of the case is not. Depending on the details of each case, see GN 04010.010A through GN 04010.010D to determine necessary actions.

EXAMPLE: The CS made an incorrect computation of the primary insurance amount, determined a RIB of $106.50, and put that incorrect amount on the award form; the correct amount is $98.50. In processing the case, the BA incorrectly paid a monthly rate of $102.50.

If the affirmative action in writing is within four years of the date of the notice of the initial determination (GN 04010.010C, step 4, first bullet) SSA can reopen and correct the CS's incorrect determination from $106.50 to $98.50 based on Clerical Error. If SSA does not conclude its investigation and revise its determination within six months after the investigation began (i.e., the affirmative action in writing date), then SSA must show it diligently pursued the investigation since the correction is unfavorable to the beneficiary, per GN 04001.060.

If the affirmative action in writing is after four years from the date of the notice of the initial determination SSA cannot reopen and correct the CS's incorrect determination of $106.50 to $98.50 because the correction would be unfavorable to the beneficiary (i.e., the claimant would receive less money). Therefore, $106.50 is the benefit amount SSA is legally required to pay. Even though SSA cannot fix the CS's error in this scenario, SSA can still correct the BA's Processing Error (GN 04010.010D) and increase the $102.50 to $106.50, effective with the first month of entitlement. This principle applies regardless of whether the notice showed a correct or incorrect amount payable.

F. Clerical Error based on a computer clerical error

As noted in GN 04010.010A, SSA treats an error made by a computer the same as an error made by a human. Though rare, a computer error may occur in the context of SSA making a determination or decision and SSA may possibly be able to reopen a case based on Clerical Error (GN 04010.010B and GN 04010.010C) depending on the circumstances of the case. Because it is unlikely this situation will occur, contact your Regional Office (RO) or Program Service Center (PSC) support staff for guidance if you believe you have a case where it has occurred before reopening a case based on Clerical Error.

G. Documentation Requirements

SSA employees must document, per GN 04001.080:

  • The rationale used to reopen a determination or decision; or

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

H. References for title XVI and disability reopening instructions

For instructions on:

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

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

  • Reopening and:

GN 04010.020 Reopenings - Error on the Face of the Evidence

A. Error on the Face of the Evidence

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.

B. Steps to help determine if SSA can reopen a title II determination or decision based on Error on the Face of the Evidence

  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?

    • 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.

    • 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?

    • If yes, go to step 3.

    • 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?

    • 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.

    • 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.

C. Examples of Error on the Face of the Evidence

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:

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

  • Relying on the wrong person's earning records.

  • 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.

  • 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.

  • 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.

  • 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.

  • 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.

  • 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.

  • 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.

  • 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.

  • 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.

D. Error on the Face of the Evidence and the application of a law that the Supreme Court found unconstitutional

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:

  • 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.

  • 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 his or her 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.

E. Additional Guidelines for SSA/IRS Reconciliation cases

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

1. Expanded scope of Error on the Face of the Evidence

In SSA/IRS Reconciliation cases only, SSA expanded the scope of Error on the Face of the Evidence to mean the earnings, which SSA should have had in its possession, needed to reopen the claim and increase the beneficiary's benefits retroactively. Therefore, if a beneficiary's SSA earnings record contains an error because of a disparity between IRS and SSA records, that beneficiary is entitled to correction of his or her earnings record, reopening of the claim and payment of retroactive benefits regardless of the amount of time that elapsed since the year(s) the claimant earned the wages.

2. Case involves both SSA/IRS Reconciliation and other Automatic Earnings Reappraisal Operation (AERO) action

In an SSA/IRS Reconciliation case, there may be other AERO adjustments, which are separate from the SSA/IRS Reconciliation action. For example, one year of earnings may increase due to a Reconciliation action and another year may increase due to another AERO operation. Apply the rules in this section to the SSA/IRS Reconciliation year(s) and apply the rules in GN 04010.030D to the non-SSA/IRS Reconciliation year(s).

If unable to determine for certain, assume all years are SSA/IRS Reconciliation years.

3. Work deductions

If the case involves work deductions, follow the normal rules to impose work deductions or to reopen and revise a previous work deduction determination.

4. Prior adjudication

Take action to correct any cases that were previously processed in a manner inconsistent with the guidelines in this section.

5. Example of an SSA/IRS Reconciliation due to an AERO

Due to a special AERO run for SSA/IRS Reconciliation cases on August 9, 1989, a case excepts for manual processing. Earnings for 1979 are in question because they do not agree with the earnings posted for 1979 when SSA processed the initial determination in 1982. The adjudicator does not have to develop to see if SSA received the additional earnings within four years because this is a Reconciliation case. The adjudicator can find an Error on the Face of the Evidence and reopen the claim to increase the benefits retroactively on the basis that SSA should have had the evidence in its possession within four years.

F. Examples of what is not 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:

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

  • 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.

  • 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.

  • 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.

  • 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.

  • 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.

  • 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.

G. Documentation Requirements

SSA employees must document, per GN 04001.080:

  • The rationale used to reopen a determination or decision; or

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

H. References for title XVI and disability reopening instructions

For instructions on:

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

  • 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.

  • Reopening and:


GN 04010 TN 7 - Reopening Within 4 Years (Title II and Entitlement Under Title XVIII) - 2/22/2021