GN DEN01010.815 Request for Legal Opinion

A. Policy on requesting legal opinions

As described in GN 01010.835A, legal opinions interpret or clarify a principle of law. As such, they constitute advice as to how courts would most likely interpret the laws in questions. The Office of General Counsel (OGC) prepares legal opinions on questions regarding either federal laws or the laws of foreign countries. The Office of Chief Counsel for a respective region, i.e., Regional Chief Counsel or “RCC,” prepares legal opinions that interpret the laws of the states within its region relating to coverage, initial Title 2 and Title 16 entitlement, eligibility, and continuing entitlement or eligibility issues.

Before requesting a legal opinion, thoroughly review POMS for national policy instructions, including current precedent opinions (PR and PS) sections:

PR - Title II Regional Chief Counsel Precedents and

PS - Title XVI Regional Chief Counsel Precedents

When an established precedent opinion clearly applies, write a formal determination on a Report of Contact (RPOC/DROC) or Special Determination (SSA-553) as explained in GN 01010.810, GN 01010.360, GN 01010.365, and GN 01010.800C. Reference the legal precedent opinion, and provide the issue that requires a legal opinion, facts, and the determination as explained in GN 01010.365B3. Ensure that all supportive documentation (e.g. birth certificate, divorce decree, etc.) included in the determination is properly photocopied (make sure a readable copy is obtained), certified per GN 00301.095, annotated in the electronic file or on the evidence (EVID) screen per GN 00301.286. Then retain the determination in the electronic file, e.g. eVIEW or the Evidence Portal (EP).

Note: Do not use legal precedent opinions that are no longer part of the PR and PS POMS sections. The current version of these POMS sections are the only agency-approved sources for legal precedents.

For further information about the electronic file, see GN 00301.310, DI 81001.005, and DI 81010.135.

B. Procedure for requesting legal opinions for the Denver Region

If current, established policy, and legal precedent opinions do not provide sufficient guidance, refer the case to the Denver CDPS for a legal opinion. Full case documentation and development is mandatory prior to submitting a legal opinion request to the Denver CDPS. Complete the following steps prior to referring a case. Please note that OGC will not accept a case that has not been fully developed with all necessary supportive evidence already obtained (clear readable copy, properly certified [if necessary], and faxed into the EP).

  1. 1. 

    Write a case summary on a paper or electronic Report of Contact (SSA-5002). Provide the following information:

    • A brief description of the issue(s) to be decided

    • Background information

    • POMS references

    • All relevant domiciles (city and state) for the number holed (NH) and the claimant(s) party to the legal opinion (see note below)

  2. 2. 

    Fax the SSA-5002 into the electronic file (e.g. EP). Reference the SSA-5002 on a Report of Contact (RPOC or DROC) in the Modernized Claims System (MCS) or Modernized Supplemental Security Income Claims System (MSSICS), if MCS or MSSICS is available.

  3. 3. 

    Fax all supporting evidence pertaining to the legal opinion request into the electronic file, for example:

    • Summary Report of Contact (SSA-5002),

    • State vital records (e.g. certified record of birth, marriage, domestic partnership, divorce, death, etc.),

    • SSA certified Translation Request (SSA-533) for foreign documents,

    • Court documents,

    • SSA forms, e.g. Child Relationship Statement (SSA-2519), Statement Regarding Contributions (SSA-783), Certificate of Support (SSA-760-F4), Modified Benefit Formula Questionnaire (SSA-150), etc.,

    • Statement(s) from the NH, claimant, and third parties (SSA-795),

    • Tax return(s),

    • NH's obituary

  4. 4. 

    Initiate an inquiry through vHelp.

  5. 5. 

    In the first line of the "My Question" textbox, document:

    • Summary Report of Contact - Reference the SSA-5002 from the Subsection B1 in this section, and briefly restate the issue to be deciced in one or two sentences. Reference the date and location where the SSA-5002 posted to the electronic file.

    • FO Determination of Domicle - Reference the SSA-5002 from Subsection B1 in this section, and briefly restate the final determination about domicile. Reference the date and location where the SSA-5002 posted to the electronic file.

    • Supporting Evidence - Provide a chronological, bulleted list of supporting evidence. Reference the date and location where each document posted to the electronic file.

Note: A "domicile" is the place where a person has his/her true, fixed, and permanent home, and to which he/she intends to return to whenever away. "Relevant domiciles" determine which state laws apply to a case. A NH's current domicile, or the NH's domicile at the time of death for a survivor claim, is always relevant. Additionally, the claimant's domiciles are potentially relevant, e.g. domiciles covering major events directly related to the legal issue under consideration, such as the child's place of birth, the child's preimary domicile over the course of his/her life, and the child's current domicile. Include all dates that the NH or claimant(s) changed domiciles. For additional guidance on determining domicile, see GN 00305.001.

C. Procedure after submitting a legal opinion request to the Denver Region

  1. 1. 

    Establish a 180-day tickle to control the case for a response from the Denver CDPS in an appropriate system, e.g. MCS, MSSICS, or a Modernized Development Worksheet (MDW).

  2. 2. 

    Process "partial" awards, e.g. for parties not affected by the legal decision, while the legal opinion is pending, per GN 01010.110 and GN 01010.815A .

    Note: Do not process the case if the pending legal opinion will impact accurate payment processing or any factor of entitlement.

  3. 3. 

    Upon receiving a response from CDPS, write a formal determination on a Report of Contact (RPOC/DRCO), of paper form (SSA-553) as explained in GN 01010.365B.3 and GN 01010.800C .

  4. 4. 

    Review the claim and verify that all the applicant's responses on the claim are accurate and up-to-date.

  5. 5. 

    Process the outstanding action along with any other claims which were held pending receipt of the legal opinion determination, according to Denver CDPS guidance.

    Note: If the case attracts Congressional or media attention while the legal opinion request is pending, inform management at the Denver CDPS immediately.

D. Example of Case Development

Sample Report of Contact (SSA-5002) for the electronic file, e.g. EP:

Issue: Is Danny Torrance eligible for surviving child's benefits and the lump sum death payment (LSDP) on the record of alleged father Jack Torrance?

Background: Jack Torrance (NH) never married the child's biological mother, and he passed away five months after the child's birth. As proof of relationship, the mother submitted a posthumous judgment of paternity and a DNA test showing a strong likelihood of the child's biological relationship to his paternal grandparent (grandmother). In addition, the NH's mother signed a statement indicating that the NH was her only son.

POMS: GN 00306.008, GN 00306.100, GN 00306.430, PR 01105.007 (look up & change)

Domicile: Estes Park, Colorado. NH passed away in Estes Park, Colorado. The claimant was born in Colorado, and the claimant lives in Colorado. All events transpired in Colorado.

Sample required text for the "MY QUESTION" section in vHelp:

In the first line of the "My Question" text box, input in all-caps font: POSSIBLE LEGAL OPINION REQUEST FOR THE DENVER REGION

Summary Report of Contact (SSA-5002) - Posted to Evidence Portal on 7/15/2018.

Issue: Is Danny Torrance eligible for surviving child's benefits and the lump sum death payment (LSDP) on the record of Jack Torrance?

Domicile: Estes Park, Colorado. Jack Torrance (NH) passed away in Estes Park, Colorado. The claimant was born in Denver, Colorado, and the claimant currently lives in Colorado. All events transpired in Colorado.

Summary Case Facts:

  • On 10/31/2017 Danny Torrance was born in Denver, Colorado.

  • On 3/30/2018 Jack Torrance passed away in Estes Park, Colorado. At the time of his death, the NH was domiciled in Estes Park, Colorado.

  • On 6/15/2018 the Superior Court of Colorado issued a Judgment finding the deceased NH to be the CL’s father.

  • On 7/01/2018 the CL filed for surviving child’s benefits and the Lump Sum Death Payment (LSDP) on the late NH’s earnings record.

Supporting Evidence:

  • Danny Torrance’s (CL) Certificate of Live Birth, born 10/31/2017 in Denver, Colorado, no father shown (see Evidence Portal dated 7/1/2018)

  • Certificate of Death showing that Jack Torrance (NH) died 3/30/2018 in Estes Park, Colorado (see Evidence Portal dated 7/1/2018)

  • DNA test dated 5/15/2018 showing a high probability of biological relationship to the CL’s paternal grandparents (see Evidence Portal dated 7/01/2018)

  • Judgment dated 6/15/2018 from the Superior Court of Colorado, finding the deceased NH to be the CL’s father (see Evidence Portal dated 7/01/2018)

  • Statement from Ms. Mindy Torrance (paternal grandmother) dated 4/15/2018 stating that the NH was her only son, and that the CL is her grandchild (see CFUI dated 7/15/2018)

  • Child Relationship Statement (SSA-2519) dated 7/10/2018 from the CL’s biological mother, Wendy Snows (see Evidence Portal dated 7/15/2018)

Direct all program-related and technical questions concerning this transmittal to the Regional Office (RO) support staff or Program Service Center (PSC) Operations Analysis (OA) staff. RO support staff or PSC OA staff may further refer issues and concerns to their Central Office contacts.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/0201010815DEN
GN DEN01010.815 - Request for Legal Opinion - 05/24/2022
Batch run: 05/24/2022
Rev:05/24/2022