When we initially entitled someone to benefits, there was information in the file that the claimant was entitled to a pension not covered by Social Security and the claimant’s PIA should have been calculated using the Windfall Elimination Provision (WEP). However, the adjudicator did not address the non-covered pension in any way and no paragraph was included in the award notice.

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  SSA's notice of entitlement is a notice of an initial determination on all issues which were before the adjudicator. Therefore, an initial determination has been made on the WEP; i.e., the adjudicator has “determined,” albeit erroneously, that WEP is not an issue or does not apply in this case.

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  If more than 4 years after the date of the notice of the initial determination we discover the error, we cannot correct the error since the end result of revising the record would be unfavorable to the claimant (GN 04010.020).

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  If we discover the error within 4 years of the notice of the initial determination, we can reopen the earlier initial determination based on having an error on the face of the evidence. We can recalculate the claimant’s PIA using the WEP formula. The change is effective with the first month the claimant is entitled to both a non-covered pension and Social Security benefits. The WEP PIA should be calculated using the amount effective at the time the claimant first became entitled to both a non-covered pension and Social Security.

At the time of the interview, the claimant is receiving a non-covered pension and when asked if they are currently entitled to a pension from work not covered under SSA, they answer “NO” to this pension question.

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  In this situation, the claim should be developed for fraud or similar fault (GN 04020.010).

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  If fraud or similar fault is established, reopen and revise the initial determination back to the date when the claimant became entitled to both a non-covered pension and SSA benefits.

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  If fraud or similar fault cannot be established, determine if the claim can be reopened based on the good cause criteria in GN 04010.001. If good cause is established and all the reopening requirements are met, reopen and revise the determination back to the date the claimant became entitled to both a non-covered pension and SSA benefits.

Same situation as subsection 1, above where claimant who alleged receipt of a non-covered pension was entitled to benefits but the adjudicator did not address receipt of a non-covered pension when entitling the claimant.

More than 4 years after the date of the notice of the initial determination, a subsequent auxiliary files for benefits. At that time, we discover our failure to include the non-covered pension amount when calculating the PIA.

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  We cannot re-compute the PIA to include WEP nor can we impose the new WEP PIA to the benefit payable to the newly entitled auxiliary. The benefit amount for the newly entitled auxiliary should be based on the current PIA of record. (This is the exception to GN 04030.070B.1.c.)

REMINDER : If the error was discovered within 4 years of the date of the initial award notice, we can correct the PIA on record.

On their application, the NH tells us they are receiving a non-covered pension of $400 per month effective May 2001. We fail to confirm or are not required to verify the amount or the date of entitlement and merely compute the WEP PIA using their allegation.

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  Five years later we find out it should have been $500 per month and it was effective in January 2001. We are bound by the initial determination which was made using $400 per month in May 2001, regardless of whether the WEP guarantee applies or what paragraph was included in the notice.

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  If we would have discovered the error within 4 years from the date of the initial determination and established an affirmative action in writing, we could have reopened and revised the determination based on having new and material evidence.

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  If the non-covered pension amount is lower or the guarantee applies and the end result of reopening the claim would be favorable, the claim can be reopened and revised if good cause can be established (see GN 04010.001 and GN 04030.100B.7.).

An NH states on their application that they are eligible and have filed for their non-covered pension but has not yet received any payments. We verify their allegation and do not include their non-covered pension amount when calculating their PIA.

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  When the NH is awarded their pension, they send us a copy of their award letter. We file it in the folder and do not recalculate their PIA.

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  Five years later, we discover the award letter and realize our mistake. Since we never made an initial determination and did not send a notice of an initial determination on the receipt of their non-covered pension award, we can recalculate their PIA to include WEP effective the first date it should have been imposed. (See GN 04001.030 regarding the failure to make a determination.)

At some date after the initial determination of entitlement to Social Security benefits, a claimant becomes entitled to a non-covered pension.

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  We can make a new initial determination and include the pension amount when recalculating their WEP PIA the first month they are entitled to both Social Security and a non-covered pension.

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  Even if we are not advised of the award until many years after the pension award, we can still make an initial determination on this issue, since one was not previously made, and recalculate their PIA to include WEP the first possible month they are concurrently entitled to Social Security and a non-covered pension.

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  In addition, if the claimant tells us when the pension award is made but we do not make an initial determination based on the report, (and thus, do not send a notice of an initial determination), we can recalculate their PIA whenever we discover the error (retroactive to the first possible month of offset.) (See GN 04001.030 regarding the failure to make a determination.)

SSA initially applied WEP in an initial determination and discovers after 4 years that the WEP PIA should not have been used. If there was an error on the face of the evidence, the determination can be reopened under the unrestricted reopening rules since correction would be advantageous (GN 04020.080). However, if there is new and material evidence, we cannot reopen under the unrestricted reopening rules of administrative finality but we can accept a reconsideration and re-examine the claim to determine if good cause for late filing exists. (See GN 03101.020A.4.)

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  If WEP was applied in error or if the NH met one of the exceptions to WEP (see RS 00605.362) and the amount of their PIA is incorrect, SSA can use good cause for late filing and correct the error by taking a reconsideration in these specific types of claims (see GN 03101.020 and GN 04040.001).

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  The basis for taking an appeal in this situation is that our notices do not give the person the information that was used to calculate the WEP PIA nor do they provide critical dates or explanations about possible exceptions to WEP.

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  Corrections can be made back to the date of initial determination provided the outcome is favorable to the NH.

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  If SSA discovers new and material evidence within 4 years of the notice of initial determination that the WEP should not have been used in calculating the NH’s PIA or if SSA discovers within 4 years the NH meets one of the exceptions to WEP, we can reopen and revise per GN 04010.030.

For information on what constitutes a request for reconsideration, see GN 03102.100C.2.

When an Automatic Earnings Reappraisal Operation (AERO) alert is received after 4 years from the date of the initial determination, do not revisit or re-examine the initial determination, only re-examine the factors used in computing the initial PIA (bend points, ELY, base years, reduction factors, etc.).

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  A decision to impose WEP, GPO or PDB is not a computation factor (see RS 00605.405). The original PIA is protected by Administrative Finality and subject to the normal rules for reopening.

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  An AERO recalculation is a revised initial determination. The time period for reopening a recalculation is based on the date of the initial determination not the date of the “later” revised initial determination (see RS 00605.401B.2.).

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  A recomputation is a new initial determination, based on new computation years. The time period for reopening a recomputation is based on the date of the new initial determination which included the new computation years (see RS 00605.401B.1.).