Identification Number:
EM-20046 REV 5
Intended Audience:All RCs/ARCs/ADs/FOs/TSCs/PSCs/OCO/OCO-CSTs/OHO/OARO
Originating Office:ORDP OISP
Title:Ely District Court Decision: Processing Claims, Appeals, and Reopening Requests - One-Time Instructions
Type:EM - Emergency Messages
Program:Title II (RSI)
Link To Reference:See References at the end of this EM.
 
Retention Date: 8/16/2022


Summary of Changes

This Emergency Message (EM) replaces all prior versions.

We are making these instructions viewable by the public.

A. Purpose

This EM provides instructions for processing claims, appeals, and requests for reopening based on the Ely District Court decision. These instructions apply to cases that involve the surviving spouse of a same-sex ceremonial marriage and meets all of the factors of entitlement for widow(er)’s benefits except the 9-month duration of marriage requirement. Under Ely, we may not deny benefits to a surviving spouse in this situation if, based on the information provided, the adjudicator determines that the survivor and the number holder (NH) would have been married for at least 9 months and met the 9-month duration of marriage requirement, but for an unconstitutional State law that prohibited same-sex marriage.

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

Ely v. Saul, No. CV-18-0557-TUC-BGM (D. Ariz.)

The Ely case involves a same-sex couple who were in a long-term, committed relationship and married shortly after their home state first permitted same-sex marriage. Because one spouse passed away shortly after the marriage, the surviving spouse did not meet the Act’s 9-month duration of marriage requirement to qualify for benefits as a widower. As a result, the claim was denied.

On May 27, 2020, the United States District Court for the District of Arizona ruled against the agency in Ely, and reversed the agency’s final decision denying Mr. Ely’s claim for widower’s benefits. The court also certified a nationwide class, and prohibited the agency from denying benefits to survivors of same-sex marriages without considering whether they were prevented from being married for at least 9 months by unconstitutional State laws barring same-sex marriage and would otherwise qualify for survivor’s benefits.

These instructions apply to all claims, appeals, and requests for reopening for survivor’s benefits where the same-sex ceremonial marriage does not meet the statutory 9-month duration of marriage requirement because an unconstitutional State law prohibited same-sex marriage.

NOTE: Class counsel submitted a general waiver of 406(b) fees associated with the Ely class members.

C. Determine if we can treat the 9-month duration of marriage requirement as satisfied based on the decision in Ely v. Saul

Consider all circumstances relevant to whether the marriage was delayed due to an unconstitutional State law that prohibited same-sex marriage. For more 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 at least 9 months before the NH’s death but for an unconstitutional State law that prohibited same-sex marriage.

If you determine that the couple would have been married for at least 9 months but for an unconstitutional State law prohibition on same-sex marriage, follow instructions in Section F of this EM to process the claim for benefits recognizing the claimant as a surviving spouse and consider all other factors of entitlement.

If you determine that the couple married when they did (and did not satisfy the 9-month duration requirement) for reasons other than an unconstitutional State law that prohibited same-sex marriage, follow instructions in Section F of this EM to refer the claim, reconsideration request, or refusal to reopen to a member of management or Claims Technical Expert (CTE) for secondary review of the determination before adjudicating (for refusals to reopen, manually clearing) the claim.

If the relationship began on or after June 26, 2015, or the NH died after June 26, 2017, the secondary review is not needed.

NOTE: 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.

D. Evaluating circumstances that prevented the couple from meeting the 9-month duration of marriage requirement
      1. Conduct a thorough interview with the claimant about the circumstances that resulted in the couple marrying less than 9 months before the NH’s death. 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, 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, deny the claim because at no point during the course of the relationship did an unconstitutional State law prevent the couple from marrying. As a result, the claimant does not benefit from additional consideration pursuant to Ely. 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.

              NOTE: If the relationship began on or after June 26, 2015, the claimant will not receive additional consideration pursuant to the Ely decision and a secondary review is not needed.

              Example: Alan and Brian’s relationship began on July 4, 2016, and they got married on September 1, 2017. Alan unexpectedly passed away on December 1, 2017. Same-sex marriage became legal in all states on June 26, 2015. Because Alan and Brian’s relationship began after the date same-sex marriage became legal in all states, at no time did an unconstitutional State law prevent them from marrying in time to meet the 9-month duration requirement. As a result, Brian is not entitled to consideration pursuant to Ely. As a result, do not find that Alan and Brian would have met the 9-month duration of marriage requirement but for an unconstitutional State law. This claim does not require secondary review because the relationship began after June 26, 2015.
        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 being married for at least 9 months 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 Ely 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 the totality of the circumstances explains the couple’s failure to marry in time to meet the 9-month duration requirement by June 26, 2017:
                    i. Conduct a thorough interview with the claimant about the circumstances that resulted in the claimant not being married to the NH for at least 9 months. Document those circumstances on the RMKS screen in the MCS application path, a RPOC in MCS, or other electronic writing.
                      ii. Consider all available evidence of the factual circumstances (see Sections D.4 and E of this EM, GN 00301.010, and GN 00301.305) that resulted in the couple not being married for at least 9 months 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:
                          · If the NH died after June 26, 2017, and the claimant and NH were not married for at least 9 months, ask the claimant why they did not marry sooner.

                          · 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?
                    iii. Examples:

                        Example 1: Beginning in June 2013, Donna and Lisa entered into a committed relationship with each other. During their relationship, they purchased two homes together and maintained one joint account. Donna named Lisa as the beneficiary on her life insurance policy, and Lisa named Donna as the beneficiary on her life insurance policy. Donna and Lisa also both named each other as the beneficiary of their respective retirement benefits at work. Donna and Lisa expressed to friends and family their desire to be married, and Donna alleges she and Lisa would have married as early as May 2014 had they been permitted to do so. Lisa was diagnosed with stage three brain cancer in August 2014 and underwent intense medical treatment off and on for several years. Donna proposed to Lisa on January 10, 2015, soon after same-sex marriage became legal in Florida. They planned to get married in May 2015 but could not marry because of Lisa’s constant hospitalizations and debilitating symptoms. Lisa’s intense cancer treatment was ongoing, and between the constant appointments and severe side effects of her treatments the couple was not able to have the ceremony that they had planned. Lisa was admitted to hospice in June 2017. While in hospice, Donna and Lisa had a bedside wedding ceremony in July 2017. Lisa died in October 2017. Therefore, she and Donna were only married for 3 months. When Donna applied for widow’s benefits on Lisa’s earnings record, her application was denied solely because she did not meet the duration of marriage requirement for widow’s benefits. In this case, the evidence supports the conclusion that but for Florida’s unconstitutional prohibition on same-sex marriage, Lisa and Donna would have married in enough time to meet the 9-month duration requirement. Additionally, they were unable to marry before June 26, 2017, because Lisa was consistently hospitalized and experienced debilitating symptoms related to her illness. The totality of the circumstances rebuts the presumption. As a result, find that the totality of the circumstances provides an explanation for Donna and Lisa’s inability to marry sooner, despite Lisa dying after June 26, 2017. Donna and Lisa would have married at least 9 months before Lisa’s death, but for the unconstitutional State law. Process Donna’s claim for benefits as Lisa’s surviving spouse. Accept Donna’s allegation (which is accompanied by credible supporting evidence) that she and Lisa would have married in May 2014 for purposes of indicating a marriage date.
                          Example 2: Beginning in January 2007, Joe and Larry lived together continuously in Hawaii. Same-sex marriage became legal in Hawaii on December 2, 2013. Joe and Larry did not get married until January 2019. Larry died on July 1, 2019. Joe does not allege that any illness or other circumstance prevented the marriage from occurring earlier. When Joe applied for widower’s benefits on Larry’s earnings record, his application was denied solely because he failed to meet the 9-month duration requirement. The totality of the circumstances does not explain why Joe and Larry were not married for at least 9 months given that Larry died after June 26, 2017. Therefore, Joe is presumed to not be entitled to additional consideration under Ely, and Joe’s application for widower’s benefits should not be granted because the evidence does not show the couple would have married in time to meet the 9-month duration requirement but for a State law prohibiting same-sex marriage. It was the couple’s personal decision to wait until January 2019, which prevented them from satisfying the marriage duration 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 in enough time to meet the 9-month duration but for an unconstitutional State law, and do not find Joe is entitled to additional consideration pursuant to Ely.
                  4. Consider all available evidence of the factual circumstances that resulted in the couple being married for less than 9 months when the NH died. Keep in mind that the examples below are not all inclusive. Here are some questions you may consider in making the determination:
                      · Did the law of the State where the ceremonial marriage occurred prohibit same-sex marriages until less than 9 months before the NH’s death? For information about when States and U.S. territories permitted same-sex marriages, refer to GN 00210.003.
                        · If the couple had a ceremonial marriage in a State other than the couple’s State of domicile, did the State of domicile allow for same-sex marriage before the State where the ceremonial marriage occurred?
                          · Would the claimant have been married to their partner for at least 9 months if a State law did not prohibit same-sex marriage?
                            · If the couple could have met the 9-month duration requirement based on the date same-sex marriages were permitted in the State where they married, what were their reasons for not marrying earlier?
                              · Was there a waiting period for marriage licenses when the claimant and NH applied for a marriage license?
                                  · For example, if the couple was required to wait 3 days after receiving a license and before having a ceremony, would subtracting those 3 days allow them to meet the 9-month duration requirement?
                                    · For example, did the courthouse experience a high volume of requests for marriage licenses immediately after the State permitted same-sex marriage? Did this mean the couple was not able to get a license until several days after the State permitted same-sex marriage and would subtracting those days allow the couple to meet the 9-month duration requirement?
                                  · How long was the couple together?
                                  · 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?
                                          · Was there any commitment ceremony or other attempt to have the relationship formally recognized prior to the legalization of same-sex marriage?
                                            · Did they have children together or did they raise any children together from prior relationships?
                                              · Is there any other available evidence regarding when they would have married had State law permitted them to marry earlier?

                                            Examples:
                                              The following examples help illustrate the above considerations:

                                              Example 1: Beginning in January 1980, Jane and Sue lived together continuously in California. During their relationship, they purchased a house and three cars together. Jane named Sue as the beneficiary on her life insurance policy, and Sue named Jane as the beneficiary on her policy. Sue also named Jane as the beneficiary of her retirement benefit at work. Jane and Sue expressed to friends and family their desire to be married, and Jane alleges that she and Sue would have married as early as June 1990 had they been permitted to do so. Same-sex marriage became legal in California on June 16, 2008. Jane and Sue married in California one month later, on July 16, 2008. Sue died a few months after their wedding, on September 16, 2008. When Jane applied for widow’s benefits on Sue’s earning record, her application was denied solely because their marriage lasted for less than 9 months. In this case, the evidence supports the conclusion that, but for California’s unconstitutional prohibition on same-sex marriage, Jane and Sue would have married many years earlier. As a result, find that Jane and Sue would have married at least 9 months before Sue’s death, but for the unconstitutional State law, and process Jane’s claim for benefits as Sue’s surviving spouse. Accept Jane’s allegation (which is accompanied by credible supporting evidence) that she and Sue would have married in June 1990 for purposes of indicating a marriage date.
                                                Example 2: Beginning in January 2001, Rob and Keith lived together continuously in Massachusetts. Same-sex marriage became legal in Massachusetts on May 17, 2004. Rob and Keith married in Massachusetts approximately 7 years later, on July 20, 2011. Keith died a few months after their wedding, on December 20, 2011. When Rob applied for widower’s benefits on Keith’s earning record, his application was denied solely because their marriage lasted for less than 9 months. Under Ely, Rob’s application for widower’s benefits should not be granted because there is insufficient evidence that Rob and Keith would have married earlier if not for an unconstitutional prohibition of same-sex marriage. Instead, it is clear that under Massachusetts law, the couple could have married up to 7 years earlier, but chose not to do so. It was that personal decision regarding the timing of their marriage that caused them not to satisfy the 9-month durational requirement, not any unconstitutional State law. As a result, do not find that Rob and Keith would have married earlier but for an unconstitutional State law, and if the claim is pending at the initial or reconsideration levels of the administrative review process, or is a refusal to reopen, refer the claim to a member of management or CTE for secondary review of the determination before adjudicating (for refusals to reopen, manually clearing) the claim.
                                                  Example 3: Beginning in January 1990, Mike and John lived together continuously in Montana. On January 1, 2002, they held a commitment ceremony, officiated by the minister of their church. At the ceremony, Mike and John exchanged vows and rings. Their minister issued them a certificate of holy union. Mike alleges that he and John would have gotten married on that day if Montana law had permitted them to do so. In April 2010, shortly after John was diagnosed with cancer, Mike and John went to Iowa and married. (Same-sex marriage became legal in Iowa on April 20, 2009, but did not become legal in Montana until November 19, 2014.) John died on September 29, 2010. When Mike applied for widower’s benefits on John’s earning record, his application was denied solely because their marriage lasted for less than 9 months. In this case, the evidence supports the conclusion that but for Montana’s unconstitutional prohibition on same-sex marriage, Mike and John would have married on January 1, 2002. As a result, find that Mike and John would have been married at least 9 months before John’s death, but for the unconstitutional State law, and process Mike’s claim for benefits as John’s surviving spouse. Accept Mike’s allegation (which is accompanied by credible supporting evidence) that he and John would have married on January 1, 2002, for purposes of indicating a marriage date.
                                                  Example 4: Cathy married Bob in 1980. Cathy and Bob separated in 1995. Beginning in August 2002, Cathy and Danielle lived together continuously in Vermont. Same-sex marriage became legal in Vermont on September 1, 2009. Cathy and Bob divorced on January 2, 2011. Cathy and Danielle married in Vermont on January 5, 2011. Danielle died on February 11, 2011. When Cathy applied for widow’s benefits on Danielle’s earning record, her application was denied solely because their marriage lasted for less than 9 months. Under Ely, Cathy’s application for widow’s benefits should not be granted because there is insufficient evidence that Cathy and Danielle would have married earlier but for an unconstitutional prohibition of same-sex marriage. Instead, it is clear that under Vermont law, the couple could have married well over a year earlier, but failed to do so. It was the fact that Cathy remained married to Bob until January 2, 2011, not an unconstitutional State law, that caused Cathy and Danielle not to satisfy the 9-month durational requirement. As a result, do not find that Cathy and Danielle would have married earlier, but for an unconstitutional State law and, if the claim is pending at the initial or reconsideration levels of the administrative review process, or is a refusal to reopen, refer the claim to a member of management or CTE for secondary review of the determination before adjudicating (for refusals to reopen, manually clearing) the claim.

                                            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. Instructions for processing claims, appeals, and requests to reopen

                                            These instructions apply only to claims that involve a surviving spouse who was in a same-sex ceremonial marriage and meets all of the factors of entitlement for widow(er)’s benefits except the 9-month duration of marriage requirement, as well as requests for further review through the appeal or reopening processes for such claims.

                                              1. Claims

                                                · Take claim in the MCS.

                                                · Enter “527” in the last 3 positions of the unit code on the Development Worksheet (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 527 in the last 3 positions. For new cases, 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 (GN 00210.020A). When a claim is coded with a 527, 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 that we need more information to determine if we can treat the 9-month duration of marriage requirement as satisfied based on the decision in Ely v. Saul.

                                                · Use sections C, D, and E of this EM to develop evidence and determine whether the couple would have been married for at least 9 months but for an unconstitutional State law prohibition on same-sex marriage.

                                                · Prepare a RPOC in MCS that clearly states the rationale for determining that the surviving spouse either does or does not qualify for widow(er)’s benefits pursuant to Ely, i.e., explain your reasons for concluding that the couple would or would not have been married for at least 9 months if no unconstitutional State law prohibiting same-sex marriage had existed.

                                                NOTE: If you are unable to make a determination based on the evidence provided, submit the claim for a legal opinion following instructions in GN 01010.815.

                                                a. The couple would have been married for at least 9 months but for an unconstitutional State law

                                                If, based on the information provided, you determine the couple would have been married for at least 9 months but for an unconstitutional State law prohibiting same-sex marriage, process the application recognizing the claimant as a surviving spouse and accept the allegation of the date on which they would have married for purposes of establishing a marriage date and:

                                                    · Change the date of the couple’s marriage on the NH Marriage (NMAR) and Beneficiary Marriage (BMAR) screens in MCS to the date on which the claimant would have married, if the couple had been permitted to do so under State law.

                                                      NOTE: If you determine that the couple would have been married for at least 9 months, but the information provided does not establish any specific date on which they would have been married, enter a date that is exactly 9 months earlier than the date of the NH’s death.
                                                    · Enter listing code “527” on the Decision Input (DECI) screen in MCS.
                                                      · Review the claimant’s record to determine whether the claimant is currently receiving other benefits. If the claimant is awarded widow(er)’s benefit under this EM and is currently receiving other benefits, see Section F.1.c in this EM.

                                                      · Enter a “Y” next to “Incomplete” on the NOT3 screen for an incomplete notice and adjudicate the award using standard procedures.

                                                      · If the claimant is deceased and an underpayment is due, see GN 02301.030 through GN 02301.075 for instructions on how to process the underpayment.


                                                    b. The couple would not have been married for at least 9 months but for an unconstitutional State law

                                                    If the claimant is entitled to additional consideration pursuant to Ely, see Section F.1.b.i. If the claimant is not entitled to additional consideration pursuant to Ely, see Section F.1.b.ii.


                                                      i. If you determine the claimant is entitled to additional consideration pursuant to Ely and the couple would not have been married for at least 9 months but for an unconstitutional State law prohibiting same-sex marriage, follow these instructions:

                                                        · Obtain secondary review of the claim from either a member of management or CTE.

                                                        · If the management official or CTE concurs with your conclusion, the management official or CTE will prepare a RPOC in MCS that clearly states the rationale for determining that the surviving spouse does not qualify for benefits under Ely v. Saul.


                                                          NOTE: If the management official or CTE disagrees with the conclusion, the management official or CTE will prepare a RPOC in MCS that clearly states the rationale for determining that the surviving spouse qualifies for benefits under Ely v. Saul. Contact Regional Support Staff for any additional guidance to resolve conflicting rationales. If the final determination is the surviving spouse qualifies for benefits under Ely v. Saul, see F.1.a.
                                                        · Do not change the date of the couple’s marriage on the NMAR and BMAR screens in MCS.
                                                          · Enter listing code “527” on the DECI screen in MCS.
                                                            · Enter a “Y” next to “Incomplete” on the NOT3 screen for an incomplete notice.

                                                            · Adjudicate the claim using standard procedures.


                                                          ii. If you determine the claimant is not entitled to additional consideration pursuant to Ely (see Sections D.1, D.2, and D.3 of this EM) and the couple would not have been married for at least 9 months but for an unconstitutional State law prohibiting same-sex marriage, follow these instructions:

                                                            · Do not obtain a secondary review.

                                                            · Do not change the date of the couple’s marriage on the NMAR and BMAR screens in MCS.

                                                            · Enter listing code “527” on the DECI screen in MCS.

                                                            · Enter a “Y” next to “Incomplete” on the NOT3 screen for an incomplete notice.

                                                            · Adjudicate the claim using standard procedures.

                                                        c. Adjudicating a claim where an individual eligible for widow(er)’s benefits under Ely is receiving other benefits

                                                        If an individual eligible for widow(er)’s benefits under Ely is currently receiving other benefits, determine whether an award of widow(er)’s benefits would affect (1) the claimant’s eligibility for those other benefits, or (2) the monthly benefit amount the claimant is receiving.
                                                            · Consider benefits that were available to the claimant at the time of their prior application(s).

                                                            · Consider prior filings when presenting the claimant with the possible options available because of the eligibility for widow(er)’s benefits under the NH’s record.

                                                            · Consider entitlement to AUXSPO benefits during the established period of marriage to the deceased NH and apply deemed filing as appropriate per GN 00204.035.

                                                            · Present options that consider prior filings, deemed filing, monthly benefit amounts, retroactive payments, delayed retirement credits (DRC), Government Pension Offset (GPO), and the Supplemental Security Income (SSI) requirement to file for other program benefits.

                                                        Under this EM, if we determined that a claimant and the NH would have been married for at least 9 months but for an unconstitutional State law prohibiting same-sex marriage, the claimant may file for the benefits that they would have been entitled to as a spouse. While current regulations and policy limit withdrawals of Retirement Insurance Benefits (RIB) to one approved RIB withdrawal per lifetime, because of the court’s decision and the agency’s agreement to end litigation, we will permit withdrawal requests by claimants who are awarded widow(er)’s benefits under this EM. In these cases, we will:

                                                          · allow an individual eligible for widow(er)’s benefits pursuant to Ely who is receiving RIB on their own record to submit a withdrawal request more than 12 months after the first month of entitlement on their own record; and


                                                          · will not count an approved withdrawal of a previous RIB claim toward the limit of one approved RIB withdrawal in the claimant’s lifetime.


                                                        NOTE: These instructions also apply to awards resulting from an appeal or request to reopen.

                                                        Follow instructions in Section F.1.a of this EM for processing award.

                                                    2. Appeals

                                                      · Confirm that the initial claim was denied using denial code 31 (Does not meet the duration of marriage requirement).

                                                      · Load the appeal in MCS.

                                                      · Enter “527” in the last 3 positions of the unit code on the DW01 in the MCS. This code will help us 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 527 in the last 3 positions. When a claim is coded with a 527, the instructions in this EM supersede and replace the instructions in GN 00210.020B regarding unit type code for same-sex relationship claims.

                                                      · Advise the claimant that we need more information to determine if we can treat the 9-month duration of marriage requirement as satisfied based on the decision in Ely v. Saul since they were not married for 9 months prior to their spouse’s death, which is a requirement for entitlement to widow(er)’s benefits.

                                                      · Use sections C, D, and E of this EM to develop evidence and determine whether the couple would have married earlier but for an unconstitutional State law prohibition on same-sex marriage.

                                                      · Prepare a RPOC in MCS that clearly states the rationale for determining that the surviving spouse either does or does not qualify for benefits under Ely v. Saul. Explain your reasons for concluding that the couple would not have married in time to meet the 9-month duration of marriage requirement, even if no unconstitutional State laws prohibiting same-sex marriage had existed.

                                                      a. For claims that are pending at the initial and reconsideration levels of the administrative review process, if reversing a denial of benefits based on the decision in Ely:


                                                        · If supported by the information provided, change the date of the couple’s marriage on the NMAR and BMAR screens in MCS to the date on which the claimant alleges they would have married, if they had been permitted to do so under State law.

                                                          NOTE: If you determine that the couple would have been married for at least 9 months, but the information provided does not establish any specific date on which they would have been married, enter a date that is exactly 9 months earlier than the date of the NH’s death.

                                                        · Enter listing code “527” on the DECI screen in MCS.

                                                        · Enter a “Y” next to “Incomplete” on the NOT3 screen for an incomplete notice.

                                                        · Effectuate the reversed determination following standard procedures.


                                                      b. For claims that are pending at the initial and reconsideration levels of the administrative review process, if you determine the couple would not have been married for at least 9 months but for an unconstitutional State law prohibiting same-sex marriage:

                                                      If the claimant is entitled to additional consideration pursuant to Ely, see Section F.2.b.i. If the claimant is not entitled to additional consideration pursuant to Ely, see Section F.2.b.ii.


                                                        i. If you determine the claimant is entitled to additional consideration pursuant to Ely and the couple would not have been married for at least 9 months but for an unconstitutional State law prohibiting same-sex marriage, follow these instructions:

                                                          · Obtain secondary review of the claim from either a member of management or CTE.

                                                          · If the management official or CTE concurs with your conclusion, the management official or CTE will prepare a RPOC in MCS that clearly states the rationale for determining that the couple does not qualify for benefits under Ely v. Saul.


                                                            NOTE: If the management official or CTE disagrees with the conclusion, the management official or CTE will prepare a RPOC in MCS that clearly states the rationale for determining that the couple qualifies for benefits under Ely v. Saul. Contact Regional Support Staff for any additional guidance to resolve conflicting rationales. If the final determination is the surviving spouse qualifies for benefits under Ely v. Saul, see Section F.2.a.

                                                          · Do not change the date of the couple’s marriage on the NMAR and BMAR screens in MCS.

                                                          · Enter listing code “527” on the DECI screen in MCS.

                                                          · Enter a “Y” next to “Incomplete” on the NOT3 screen for an incomplete notice.

                                                          · Adjudicate the appeal using standard procedures.


                                                        ii. If you determine the claimant is not entitled to additional consideration pursuant to Ely and the couple would not have been married for at least 9 months but for an unconstitutional State law prohibiting same-sex marriage, follow these instructions:

                                                        · Do not obtain a secondary review.

                                                        · Do not change the date of the couple’s marriage on the NMAR and BMAR screens in MCS.

                                                        · Enter listing code “527” on the DECI screen in MCS.

                                                        · Enter a “Y” next to “Incomplete” on the NOT3 screen for an incomplete notice.

                                                        · Adjudicate the appeal using standard procedures.


                                                      c. Hearing requests

                                                        · Confirm that the initial claim and reconsideration were denied using denial code 31 (Does not meet the duration of marriage requirement).

                                                        · Follow instructions in EM 21000 SEN REV 4.

                                                        · Ensure that the comment “Ely court case” is included in the subject line of any email correspondence.

                                                        · FO will add comment “Use court characteristic ELY1 to identify as Ely District Court Decision Case” to any email correspondence.


                                                    3. Requests to reopen

                                                    These instructions apply to surviving spouses of same-sex marriages who question a prior final determination or decision in which their claim for widow(er)’s benefits was denied for failure to meet the 9-month duration of marriage requirement.

                                                    NOTE: If the claimant is deceased and someone contacts SSA on their behalf, see Section F.3.c.

                                                    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 we denied the initial claim using denial code 31 (Does not meet the duration of marriage requirement).

                                                      · Load a new segment in MCS. On the Remarks (RMKS) screen, include a statement from the widow(er) that he or she thinks the prior determination was incorrect. For inquiries made on behalf of a deceased claimant, include a statement from the individual who contacted SSA.

                                                      · On the DW01 in MCS, enter 527 in the last 3 positions of the unit code to readily 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 527 in the last 3 positions. When a claim is coded with a 527, 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 or individual who contacted SSA on behalf of a deceased claimant that we need more information to determine if we can treat the 9-month duration of marriage requirement as satisfied based on the decision in Ely v. Saul.

                                                      · Use sections C, D, and E of this EM to develop evidence and determine whether the couple would have married earlier but for an unconstitutional State law prohibition on same-sex marriage.

                                                      NOTE: If you are unable to make a determination based on the evidence provided, submit the claim for a legal opinion following instructions in GN 01010.815.


                                                      a. If, after developing the evidence, you determine that the couple would have been married for at least 9 months but for an unconstitutional State law prohibition on same-sex marriage:

                                                        · Reopen the claim pursuant to GN 04010.20A and GN 04020.80.

                                                        · Prepare a RPOC in MCS that clearly states the rationale for determining that the surviving spouse qualifies for benefits under Ely v. Saul. Explain your reasons for concluding that the couple would have been married for at least 9 months if no unconstitutional State law prohibiting same-sex marriage had existed.

                                                        · Follow the instructions in section F.1.a of this EM (The couple would have been married for at least 9 months but for an unconstitutional State law).

                                                        · If the claimant is deceased and an underpayment is due, see GN 02301.030 through GN 02301.075 for instructions on how to process the underpayment.

                                                        b. If, after developing the evidence, you determine that the couple would not have been married for at least 9 months but for an unconstitutional State law prohibiting same-sex marriage:

                                                          · Do not reopen the claim.

                                                          · Prepare a RPOC in MCS that clearly states the rationale for determining that the surviving spouse does not qualify for benefits under Ely v. Saul. Explain your reasons for concluding that the couple would not have been married for at least 9 months, even though an unconstitutional State law prohibiting same-sex marriage existed.

                                                          · Refer the case to a member of management or CTE for a secondary review of your conclusion not to reopen the prior denial, before sending any notice.

                                                          · If the management official or CTE concurs with your conclusion, the management official or CTE will prepare a RPOC in MCS that clearly states the rationale for determining that the surviving spouse does not qualify for benefits under Ely v. Saul.


                                                            NOTE: If the management official or CTE disagrees with your conclusion, the management official or CTE will prepare a RPOC in MCS that clearly states the rationale for determining that the surviving spouse qualifies for benefits under Ely v. Saul. Contact Regional Support Staff for any additional guidance to resolve conflicting rationales.

                                                            REMINDER: If the relationship began on or after June 26, 2015, or the NH died after June 26, 2017, the secondary review is not needed.


                                                          · If the final conclusion is that the surviving spouse does not qualify for benefits under Ely v. Saul, manually clear the claim.

                                                          · Prepare and send the “Ely Class Action - Refusal to Reopen” notice via DPS, which includes Universal Text Identifiers (UTI) CAS023 and CAS020. 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 Ely 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 “527” code in the last 3 positions of the unit code. If the “527” code is present in the last 3 positions of the unit code on the DW01:

                                                          · If the most recent RPOC rationale for the determination states that the couple qualifies for benefits under Ely v. Saul:
                                                              · For initial claims, include UTIs CAS019, CAS020, and CAS031 in the notice.

                                                              · For claims that have been reopened, include UTIs CAS018, CAS019, CAS020, and CAS031 in the notice,

                                                          · If the most recent RPOC rationale for determination states that the couple does not qualify for benefits under Ely v. Saul include UTIs CAS021 and CAS020.

                                                          · If request to reopen was for deceased claimant, 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 Ely

                                                          IMPORTANT: The following UTIs are only for use in an initial claim, appeal, or request to reopen processed using the instructions in this EM.

                                                          CAS018 with Fill-ins (Used only when widow(er)’s benefits are awarded as a result of reopening pursuant to Ely):

                                                          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 spouse.

                                                          Fill-in values:
                                                          Fill-in *F1
                                                          Choice 1your
                                                          Choice 2Beneficiary’s Name (possessive)
                                                          Fill-in *F2Date of the denial notice for widow’s or widower’s benefits that the individual requested SSA reopen
                                                          Fill-in *F3
                                                          Choice 1widow’s
                                                          Choice 2widower’s
                                                          Fill-in *F4
                                                          Choice 1your
                                                          Choice 2his
                                                          Choice 3her

                                                          CAS019 with Fill-ins (Used in award notices):

                                                          On May 27, 2020, the United States District Court for the District of Arizona certified a nationwide class in the case, Ely v. Saul. Ely involves certain claims for Social Security widow's or widower's benefits filed by the surviving member of a same-sex married couple. In Ely, we denied a claim because we found that the couple's marriage did not last long enough to meet the Social Security Act's 9-month duration of marriage requirement. 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 same-sex couples just because the marriage did not last for 9 months. The District Court decided that we also had to consider whether the couple would have married in time to satisfy the 9-month requirement if they had not been prevented from doing so by an unconstitutional State law.

                                                          After reviewing *F1, we have determined that *F2 entitled to additional consideration pursuant to Ely. We reviewed *F3 claim and decided that *F4 and *F5 spouse would have been married for at least 9 months if *F6 had not been prevented from marrying by an unconstitutional State law. Therefore, under Ely, we will not deny *F7 claim based on the Social Security Act's 9-month duration of marriage requirement.

                                                          Fill-in values:
                                                          Fill-in *F1 for initial claim awards
                                                          Choice 1your application
                                                          Choice 2Beneficiary’s Name (possessive) application
                                                          Fill-in *F1 for awards that are the result of a reopening
                                                          Choice 1your case again
                                                          Choice 2Beneficiary’s Name (possessive) case again
                                                          Fill-in *F2
                                                          Choice 1you are
                                                          Choice 2he is
                                                          Choice 3she is
                                                          Fill-in *F3
                                                          Choice 1your
                                                          Choice 2his
                                                          Choice 3her
                                                          Fill-in *F4
                                                          Choice 1you
                                                          Choice 2Beneficiary’s Name
                                                          Fill-in *F5
                                                          Choice 1your
                                                          Choice 2his
                                                          Choice 3her
                                                          Fill-in *F6
                                                          Choice 1you
                                                          Choice 2they
                                                          Fill-in *F7
                                                          Choice 1your
                                                          Choice 2Beneficiary’s Name (possessive)

                                                          CAS020 (No Fill-ins) (Used in award, denial, and refusal to reopen notices):

                                                          Lambda Legal, the Office of Brian Clymer, Attorney at Law, and Menard Disability Law represent the members of the Ely class action. Their contact information is below. You may contact them if you have any questions about the Ely class action.

                                                          Peter C. Renn
                                                          Lambda Legal
                                                          4221 Wilshire Boulevard, Suite 280
                                                          Los Angeles, CA 90010-3512
                                                          Telephone: 213-382-7600
                                                          Email: Elyclassmembers@lambdalegal.org

                                                          Brian Clymer
                                                          Attorney at Law
                                                          P.O. Box 43277
                                                          Tucson, AZ 85733-3277
                                                          Telephone: 520-323-1234
                                                          Email: bclymer@clymerlegal.com

                                                          Autumn Menard
                                                          Menard Disability Law
                                                          177 North Church Avenue, Suite 200
                                                          Tucson, AZ 85701
                                                          Telephone: 520-276-1576
                                                          Email: autumn@menarddisabilitylaw.com

                                                          CAS021 with Fill-ins (Used in denial notices for claims processed pursuant to Ely):
                                                          On May 27, 2020, the United States District Court for the District of Arizona certified a nationwide class in the case, Ely v. Saul. Ely involves certain claims for Social Security widow's or widower's benefits filed by the surviving member of a same-sex married couple. In Ely, we denied a claim because we found that the couple's marriage did not last long enough to meet the Social Security Act's 9-month duration of marriage requirement. 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 same-sex couples just because the marriage did not last for 9 months. The District Court decided that we also had to consider whether the couple would have married in time to satisfy the 9-month requirement if they had not been prevented from doing so by an unconstitutional State law.

                                                          We have reviewed *F1 application for *F2 benefits based on the Social Security record of *F3 late spouse. As required by the District Court's decision in Ely, we considered whether an unconstitutional State law prevented *F4 from marrying *F5 spouse earlier than *F6 did. After reviewing the information in *F7 case, we determined that an unconstitutional State law did not prevent *F8 and *F9 spouse from being married for at least 9 months.

                                                          Because *F10 not married to *F11 spouse for 9 months, *F12 not entitled to Social Security benefits as a *F13.

                                                          Fill-in values:
                                                          Fill-in *F1
                                                          Choice 1your
                                                          Choice 2Beneficiary’s Name (possessive)
                                                          Fill-in *F2
                                                          Choice 1widow’s
                                                          Choice 2widower’s
                                                          Fill-in *F3
                                                          Choice 1your
                                                          Choice 2his
                                                          Choice 3her
                                                          Fill-in *F4
                                                          Choice 1you
                                                          Choice 2Beneficiary’s Name
                                                          Fill-in *F5
                                                          Choice 1your
                                                          Choice 2his
                                                          Choice 3her
                                                          Fill-in *F6
                                                          Choice 1you
                                                          Choice 2he
                                                          Choice 3she
                                                          Fill-in *F7
                                                          Choice 1your
                                                          Choice 2Beneficiary’s Name (possessive)
                                                          Fill-in *F8
                                                          Choice 1you
                                                          Choice 2Beneficiary’s Name
                                                          Fill-in *F9
                                                          Choice 1your
                                                          Choice 2his
                                                          Choice 3her
                                                          Fill-in *F10
                                                          Choice 1you were
                                                          Choice 2(Beneficiary’s Name) was
                                                          Fill-in *F11
                                                          Choice 1your
                                                          Choice 2his
                                                          Choice 3her
                                                          Fill-in *F12
                                                          Choice 1you are
                                                          Choice 2(Beneficiary’s Name) is
                                                          Fill-in *F13
                                                          Choice 1widow
                                                          Choice 2widower


                                                          CAS023 with Fill-ins (Used in refusal to reopen notices for reopening requests processed pursuant to Ely):

                                                          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 spouse.
                                                          On May 27, 2020, the United States District Court for the District of Arizona certified a nationwide class in the case, Ely v. Saul. Ely involves certain claims for Social Security widow's or widower's benefits filed by the surviving member of a same-sex married couple. In Ely, we denied a claim because we found that the couple's marriage did not last long enough to meet the Social Security Act's 9-month duration of marriage requirement. 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 same-sex couples just because the marriage did not last for 9 months. The District Court decided that we also had to consider whether the couple would have married in time to satisfy the 9-month requirement if they had not been prevented from doing so by an unconstitutional State law.

                                                          As required by the District Court's decision in Ely, we considered whether an unconstitutional State law prevented *F5 from marrying *F6 spouse earlier than *F7 did. After reviewing the information in *F8 case again, we determined that an unconstitutional State law did not prevent *F9 and *F10 spouse from being married for at least 9 months.

                                                          Because *F11 not married to *F12 spouse for 9 months, *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 your *F15 spouse.

                                                          Fill-in values:
                                                          Fill-in *F1
                                                          Choice 1your
                                                          Choice 2Beneficiary’s Name (possessive)
                                                          Fill-in *F2Date of the denial notice for widow’s or widower’s benefits that the individual requested SSA reopen
                                                          Fill-in *F3
                                                          Choice 1widow’s
                                                          Choice 2widower’s
                                                          Fill-in *F4
                                                          Choice 1your
                                                          Choice 2his
                                                          Choice 3her
                                                          Fill-in *F5
                                                          Choice 1you
                                                          Choice 2Beneficiary’s Name
                                                          Fill-in *F6
                                                          Choice 1your
                                                          Choice 2his
                                                          Choice 3her
                                                          Fill-in *F7
                                                          Choice 1you
                                                          Choice 2he
                                                          Choice 3she
                                                          Fill-in *F8
                                                          Choice 1your
                                                          Choice 2Beneficiary’s Name (possessive)
                                                          Fill-in *F9
                                                          Choice 1you
                                                          Choice 2Beneficiary’s Name
                                                          Fill-in *F10
                                                          Choice 1your
                                                          Choice 2his
                                                          Choice 3her
                                                          Fill-in *F11
                                                          Choice 1you were
                                                          Choice 2(Beneficiary’s Name) was
                                                          Fill-in *F12
                                                          Choice 1your
                                                          Choice 2his
                                                          Choice 3her
                                                          Fill-in *F13
                                                          Choice 1you are
                                                          Choice 2(Beneficiary’s Name) is
                                                          Fill-in *F14
                                                          Choice 1widow
                                                          Choice 2widower
                                                          Fill-in *F15
                                                          Choice 1your
                                                          Choice 2Beneficiary’s Name (possessive)
                                                          CAS031 with fill-ins (Used in award notices for claims processed pursuant to Ely)

                                                          We invite you to visit our website at www.ssa.gov on the Internet 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 https://www.ssa.gov/agency/rcds.html 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:

                                                                            *F2
                                                                            *F3
                                                                            *F4
                                                                            *F5

                                                          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 *F2FO Address Line 1
                                                          Fill-in *F3FO Address Line 2
                                                          Fill-in *F4FO Address Line 3
                                                          Fill-in *F5FO 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 Ely case.

                                                            · Advise callers that the agency has updated its procedures to comply with the Ely court order.

                                                            · Refer the caller to the “Notice of Class Action Order: Ely v. Saul” webpage located at https://www.ssa.gov/ely/.

                                                            · Follow the instructions in 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 527.


                                                          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 00210.020 Processing Instructions for Title II Same-Sex Relationship Claims, Reconsiderations, and Hearing Requests
                                                          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-20046 REV 5 - Ely District Court Decision: Processing Claims, Appeals, and Reopening Requests - One-Time Instructions - 2/24/2022