SSR 17-1p: Titles II and XVI: Reopening Based on Error on the Face of the Evidence — Effect of a Decision By the Supreme Court of the United States Finding a Law That We Applied to Be Unconstitutional

PURPOSE: In recent years, we have received a number of questions regarding how our reopening rules should be applied when we applied a Federal or State law in making our determination or decision, and the Supreme Court of the United States later determines that the law we applied is unconstitutional. The issue has arisen most recently in light of the Supreme Court's decisions regarding the constitutionality of the Defense of Marriage Act in United States v. Windsor, 133 S. Ct. 2675 (2013) and the constitutionality of State law bans on same-sex marriage in Obergefell v. Hodges, 135 S. Ct. 2584 (2015). We are issuing this SSR to explain our policy on reopening a determination or decision due to an error on the face of the evidence when, in making that determination or decision, we applied a Federal or State law that the Supreme Court of the United States later determines to be unconstitutional, and we find that application of that law was material to our determination or decision.

CITATIONS: Sections 702(a)(5) of the Social Security Act, as amended; 20 CFR 404.988, 404.989, 416.1488, 416.1489.

BACKGROUND: Generally, if a claimant is dissatisfied with a determination or decision made in the administrative review process, but does not request further review within the stated time period, he or she loses the right to further review and that determination or decision becomes final.^[1] However, under our rules of administrative finality, in limited circumstances, either on our own initiative or at the request of a party, we may reopen and revise a determination or decision that is otherwise final.^[2] Our regulations set out the grounds for reopening and the timeframes for doing so. In many cases, we may reopen and revise a determination or decision only within specified time limits for “good cause.”^[3] In other cases, there are no regulatory time limits for reopening.^[4] Under our regulations, we may find “good cause” to reopen in part when we find that there is an error on the face of the evidence, as described in the relevant regulations.^[5]

Our regulations do not further specify what constitutes grounds for reopening a determination or decision based on an “error on the face of the evidence.” Under our longstanding policy, a legal error may constitute an error on the face of the evidence.^[6] However, our regulations also explain that we will not find “good cause” to reopen a prior determination or decision based solely on a “change of legal interpretation or administrative ruling upon which the determination or decision was made.”^[7]

In recent years, we have received questions about whether and how we may apply our reopening rules when we made a determination or decision by applying a Federal or State law that the Supreme Court of the United States later determines to be unconstitutional. We are issuing this SSR to explain how we interpret the reopening rules in this specific situation to ensure that our adjudicators interpret and apply our reopening rules correctly and consistently.

POLICY INTERPRETATION: When we make a determination or decision by applying a Federal or State law that the Supreme Court of the United States later determines to be unconstitutional, and we find that application of that law was material^[8] to our determination or decision, we may reopen the determination or decision within the time frames specified in our regulations based on an error on the face of the evidence under 20 CFR 404.988(b), 404.988(c)(8), 404.989(a)(3), 416.1488(b), and 416.1489(a)(3). In this specific situation, we do not consider a holding by the Supreme Court that a Federal or State law is unconstitutional to be a “change of legal interpretation or administrative ruling upon which the determination or decision was made,” as contemplated in 20 CFR 404.989(b) and 416.1489(b).

Under our policy, the rules governing a change in legal interpretation apply when a policy or legal precedent that we previously adhered to in the adjudication of cases, which was correct and reasonable when made, is changed as a result of subsequent court decisions or other applicable legal precedents or new policy considerations.^[9] When we have made a determination or decision by applying a Federal or State law that the Supreme Court of the United States later determines to be unconstitutional, the application of that law would not have been correct and reasonable when made. Consequently, we do not interpret the change in legal interpretation criteria in our rules to prevent us from applying our reopening rules in that specific situation. Accordingly, we may reopen a determination or decision based on an error on the face of the evidence in the limited circumstance where all of the following criteria are met: 1) we made our determination or decision by applying a Federal or State law that the Supreme Court of the United States later determines to be unconstitutional; 2) we find that the application of that law was material to our determination or decision; and 3) we reopen and revise the determination or decision within the following time frames:

• For claims under title II of the Social Security Act (Act), within four years of the notice of the initial determination, for good cause, under 20 CFR 404.988(b), 404.989(a)(3);

• For claims under title II of the Act, at any time, if the determination or decision was fully or partially unfavorable, under 20 CFR 404.988(c)(8); and

• For claims under title XVI of the Act, within two years of the notice of the initial determination, for good cause, under 20 CFR 416.1488(b), 416.1489(a)(3).

CROSS REFERENCES: Social Security Ruling 85-6c; Program Operations Manual System GN 04001.100A, GN 04010.020, GN 04020.080.

^[1] 20 CFR 404.987(a), 416.1487(a).

^[2] 20 CFR 404.987(b), 416.1487(b).

^[3] See e.g., 20 CFR 404.988(b), 416.1488(b).

^[4] 20 CFR 404.988(c)(8) (Under title II, we may reopen a determination or decision at any time if it was fully or partially unfavorable to a party to correct “an error that appears on the face of the evidence that was considered when the determination or decision was made.”)

^[5] 20 CFR 404.989(a)(3) (Under title II, we may reopen a determination or decision for good cause within four years of the date of the notice of initial determination when the “evidence that was considered in making the determination or decision clearly shows on its face that an error was made.”), 416.1489(a)(3) (Under title XVI, we may reopen a determination or decision for good cause within two years of the date of the notice of initial determination when the &ldquo.evidence that was considered in making the determination or decision clearly shows on its face that an error was made.”)

^[6] Social Security Ruling 85-6c (https://www.ssa.gov/OP_Home/rulings/di/05/SSR85-06-di-05.html).

^[7] 20 CFR 404.989(b), 416.1489(b).

^[8] For purposes of this Ruling, this type of error on the face of the evidence is “material” to our determination or decision when our application of a Federal or State law that the Supreme Court of the United States later determines to be unconstitutional affected the individual's entitlement to title II benefits, the individual's eligibility for title XVI payments, or the amount of the individual's title II benefits or title XVI payments.

^[9] See Program Operations Manual System GN 04001.100A (https://secure.ssa.gov/apps10/poms.nsf/lnx/0204001100).