Evidence submitted could be “new” but not “material.”
“New” evidence may be submitted within 4 years which justifies further development.
The further development could uncover “material” evidence either within the 4 years or after the 4 years.
If the “new” evidence was received within 4 years, we can reopen regardless of when the development
of the “material” evidence is completed if reopening is favorable to the claimant.
If reopening is unfavorable to the claimant, we can reopen only if an affirmative action in writing (see GN 04001.050) was taken by the appropriate person in SSA (see GN 04001.020) on the “new” evidence within the 4 years.
NOTE: See GN 04001.060 regarding diligent pursuit.
It is possible for the new and material evidence to have been created after the original
determination was made.
EXAMPLE 1: A child is entitled as the illegitimate child of the NH based on a court order.
Within 4 years of the date of the notice of the initial determination, we receive
a revised court order which shows the child is not the child of the NH and we take
an affirmative action in writing questioning the correctness of the determination
awarding benefits. We can reopen and revise based on the revised court order even
though it came into existence after the initial determination. This is not the same
as reopening a correct determination, which is discussed in GN 04001.070, since the revised court order renders the initial determination incorrect.
EXAMPLE 2: A child who was born during the NH's marriage to the child's biological mother and
whose birth certificate shows the NH as the child's father is determined entitled
as the natural legitimate child of the NH in 03/1996. The notice of the initial determination
awarding child's benefits is issued on 03/28/1996. In a telephone call to the local
FO in 08/1996, the NH alleges that the child is not his, but does not provide any
information to support his allegation. The NH states that he is filing suit to disavow
the child as his own. In 03/2001, the NH brings in evidence which establishes that
the child would not be considered the natural legitimate child of the NH for purposes
of intestate succession under the applicable State law. Specifically, the evidence
consists of: (1) authenticated DNA testing dated 10/09/1997 which excludes the NH
as the child's biological father and (2) a State court decision dated 10/28/1997 which
decreed that the NH is not the child's natural father based on the DNA test results,
and which meets the criteria of SSR 83-37c (the Gray v. Richardson case). The evidence
rebuts the presumption of legitimacy under applicable State law. However, even though
we have new and material evidence that the child is not the NH's, we cannot reopen
and revise the determination awarding benefits because no affirmative action in writing
was established and the evidence was not received from the NH within four years of
the date of the notice of the initial determination. Therefore, the child remains
entitled to benefits.
NOTE: In Example 2, if the NH had submitted the DNA testing and State court decision to
us within four years of the date of the notice of the initial determination and we
had taken an affirmative action in writing questioning the determination within the
4-year period, we could reopen and revise the determination based on new and material
evidence. Alternatively, if SSA determined that fraud or similar fault was involved,
we could reopen at any time.