SUBJECT:

When the Appeals Council or an administrative law judge may exercise the discretion to reopen a determination or decision based on new and material evidence

ISSUE:

Under what circumstances may the Appeals Council (AC) or an administrative law judge (ALJ) reopen an otherwise binding and administratively final determination or decision based on new and material evidence?

DISCUSSION:

Under the regulations, a claimant who is dissatisfied with a determination or decision made in the administrative review process must appeal the determination or decision within the stated time period. Generally, a claimant who does not appeal a determination or decision within the stated time period loses the right to further review, and the determination or decision becomes binding and administratively final. 20 CFR 404.905, 404.921, 404.955, 404.981, 404.987, 416.1405, 416.1421, 416.1455, 416.1481, and 416.1487. However, a party may request that the AC or an ALJ reopen an otherwise binding and administratively final determination or decision based on evidence furnished to the AC or ALJ.

Within 12 months of the date of the initial determination, the AC or ALJ may reopen a determination or decision for any reason, including evidence furnished to the AC or ALJ. 20 CFR 404.988(a) and 416.1488(a). Within four years of the date of the initial determination on a title II claim, or within two years of the date of the initial determination on a title XVI claim, the AC or ALJ may reopen an otherwise binding and administratively final determination or decision if there is “good cause” to do so. 20 CFR 404.988(b) and 416.1488(b).

Good cause to reopen during this period exists when:

• •

  New and material evidence is furnished;

• •

  A clerical error in the computation or recomputation of benefits was made in a title II claim, or a clerical error was made in a title XVI claim; or

• •

  The evidence that was considered in making the determination or decision clearly shows on its face that an error was made.

20 CFR 404.989(a) and 416.1489(a).

After four years have elapsed since the date of the initial determination on a title II claim or two years since the date of the initial determination on a title XVI claim, the AC or ALJ may only reopen a final determination or decision under limited circumstances, such as when the determination or decision was obtained by fraud or similar fault. 20 CFR 404.988(c) and 416.1488(c).

While the regulations define when the AC or an ALJ may reopen an otherwise binding and administratively final determination or decision, reopening is within the agency's discretion. Social Security Ruling (SSR) 88-1c.

INTERPRETATION:

Under the regulations, the AC or an ALJ may reopen an otherwise binding and administratively final determination or decision within four years of the date of an initial title II determination or within two years of the date of an initial title XVI determination based on additional evidence that is new and material. However, even when new and material evidence is furnished, reopening is within the agency's discretion.

The clear intent of the good cause provisions of the reopening rules is to allow the AC or an ALJ to correct a previous determination or decision. Under paragraph (a)(2) of 20 CFR 404.989 and 416.1489, the AC or an ALJ may reopen a determination or decision to correct a clerical error, and, under paragraph (a)(3), the AC or ALJ may reopen when the evidence considered in making the determination or decision clearly shows on its face that an error was made.

Consistent with these other provisions, the AC or an ALJ will exercise the discretion available under 20 CFR 404.989(a)(1) and 416.1489(a)(1) to reopen an otherwise binding and administratively final determination or decision only when new and material evidence is furnished that:

1. 1) 

   is not part of the claim(s) record as of the date of the determination or decision;

2. 2) 

   relates to the period on or before the date of the determination or decision; and

3. 3) 

   shows facts that would have resulted in a different conclusion as to eligibility, entitlement, or benefit amount than originally reached had the evidence been introduced or available at the time of the determination or decision.

This interpretation is consistent with SSRs 65-51 and 67-22, in which the agency reopened otherwise binding and administratively final decisions based on new and material evidence that showed that the previous eligibility findings were incorrect.

APPLICATION:

The AC and ALJs will apply this interpretation in all cases in which they consider whether to reopen an otherwise binding and administratively final determination or decision based on new and material evidence under 20 CFR 404.989(a)(1) or 416.1489(a)(1).

EFFECTIVE DATE:

May 1, 2017

CROSS-REFERENCES:

20 CFR 404.989, and 416.1489; HALLEX HA 01290.040 and HA 01390.040