[Federal Register Volume 82, Number 39 (Wednesday, March 1, 2017)]
[Notices]
[Pages 12270-12272]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-03932]


=======================================================================
-----------------------------------------------------------------------

SOCIAL SECURITY ADMINISTRATION

[Docket No. SSA-2016-0029]


Social Security Ruling 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

AGENCY: Social Security Administration.

ACTION: Notice of Social Security Ruling (SSR).

-----------------------------------------------------------------------

SUMMARY: We are giving notice of SSR 17-1p. This SSR explains how we 
apply our reopening rules when we have applied a Federal or State law 
to a claim for benefits that the Supreme Court of the United States 
later determines to be unconstitutional, and we find the application of 
that law was material to our determination or decision. We expect that 
this ruling will clarify our policy in light of recent questions that 
we have received on this issue.

DATES: Effective Date: March 1, 2017.

FOR FURTHER INFORMATION CONTACT: Peter Smith, Office of Income Security 
Programs, Social Security Administration, 6401 Security Boulevard, 
Baltimore, MD 21235-6401, (410) 966-3235. For information on 
eligibility or filing for benefits, call our national toll-free number 
1-800-772-1213, or TTY 1-800-325-0778, or visit our Internet site, 
Social Security online, at http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION: Although 5 U.S.C. 552(a)(1) and (a)(2) do 
not require us to publish this SSR, we are doing so under 20 CFR 
402.35(b)(1).
    Through SSRs, we make available to the public precedential 
decisions relating to the Federal old-age, survivors, disability, 
supplemental security income, and special veterans

[[Page 12271]]

benefits programs. We may base SSRs on determinations or decisions made 
at all levels of administrative adjudication, Federal court decisions, 
Commissioner's decisions, opinions of the Office of the General 
Counsel, or other interpretations of the law and regulations.
    Although SSRs do not have the same force and effect as statutes or 
regulations, they are binding on all components of the Social Security 
Administration. 20 CFR 402.35(b)(1).
    This SSR will remain in effect until we publish a notice in the 
Federal Register that rescinds it, or we publish a new SSR that 
replaces or modifies it.

(Catalog of Federal Domestic Assistance, Program Nos. 96.001, Social 
Security--Disability Insurance; 96.002, Social Security--Retirement 
Insurance; 96.004--Social Security--Survivors Insurance; 96.006 
Supplemental Security Income.)

Nancy A. Berryhill,
Acting Commissioner of Social Security.
POLICY INTERPRETATION RULING
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\
---------------------------------------------------------------------------

    \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 ``evidence that was considered in making the determination or 
decision clearly shows on its face that an error was made.'')
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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

[[Page 12272]]

material to our determination or decision; and 3) we reopen and revise 
the determination or decision within the following time frames:
---------------------------------------------------------------------------

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

     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.

[FR Doc. 2017-03932 Filed 2-28-17; 8:45 am]
BILLING CODE 4191-02-P