[Federal Register Volume 60, Number 80 (Wednesday, April 26, 1995)]
[Notices]
[Pages 20549-20551]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10208]
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SOCIAL SECURITY ADMINISTRATION
[Social Security Ruling SSR 95-1p]
Titles II and XVI: Finding Good Cause for Missing the Deadline To
Request Administrative Review Due to Statements in the Notice of
Initial or Reconsideration Determination Concerning the Right To
Request Review and the Option to File a New Application
AGENCY: Social Security Administration.
ACTION: Notice of Social Security Ruling.
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SUMMARY: In accordance with 20 CFR 422.406(b)(1), the Commissioner of
Social Security gives notice of Social Security Ruling 95-1p. This
Policy Interpretation Ruling clarifies the Social Security
Administration's policy on establishing good cause for late filing of a
request for administrative review where the claimant received a notice
of an initial or reconsideration determination made prior to July 1,
1991, which did not explain that filing a new application instead of a
request for review could result in the loss of benefits. Notices of
determinations made on or after July 1, 1991, are covered under Section
205(b) of the Social Security Act, as amended by Public Law 101-508.
EFFECTIVE DATE: April 26, 1995.
FOR FURTHER INFORMATION CONTACT: Joanne K. Castello, Division of
Regulations and Rulings, Social Security Administration, 6401 Security
Boulevard, Baltimore, MD 21235, (410) 965-1711.
SUPPLEMENTARY INFORMATION: Although we are not required to do so
pursuant to 5 U.S.C. 552 (a)(1) and (a)(2), we are publishing this
Social Security Ruling in accordance with 20 CFR 422.406(b)(1).
Social Security Rulings make available to the public precedential
decisions relating to the Federal old-age, survivors, disability,
supplemental security income, and black lung benefits programs. Social
Security Rulings may be based on case decisions made at all
administrative levels of adjudication, Federal court decisions,
Commissioner's decisions, opinions of the Office of the General
Counsel, and other policy interpretations of the law and regulations.
Although Social Security Rulings do not have the force and effect
of the law or regulations, they are binding on all components of the
Social Security Administration, in accordance with 20 CFR
422.406(b)(1), and are to be relied upon as precedents in adjudicating
other cases. [[Page 20550]]
If this Social Security Ruling is later superseded, modified, or
rescinded, we will publish a notice in the Federal Register to that
effect.
(Catalog of Federal Domestic Assistance, Programs 93.802, Social
Security--Disability Insurance; 93.803, Social Security--Retirement
Insurance; 93.805, Social Security--Survivors Insurance; 93.806,
Special Benefits for Disabled Coal Miners; 93.807, Supplemental
Security Income.)
Dated: April 18, 1995.
Shirley S. Chater,
Commissioner of Social Security.
Policy Interpretation Ruling
Title II and Title XVI: Finding Good Cause for Missing the Deadline to
Request Administrative Review due to Statements in the Notice of
Initial or Reconsideration Determination Concerning the Right to
Request Administrative Review and the Option to File a New Application
Purpose
To reflect the Social Security Administration's (SSA) policy on
establishing good cause for late filing of a request for administrative
review as it applies to a claimant who received an initial or
reconsideration determination notice dated prior to July 1, 1991, which
did not state that filing a new application instead of a request for
administrative review could result in the loss of benefits.
Citations (Authority)
Sections 205(b) and 1631(c)(1) of the Social Security Act (the
Act); Regulation No. 4, sections 404.903(j), 404.909, 404.911, 404.933,
404.957(c)(3); and Regulation No. 16, sections 416.1403(a)(8),
416.1409, 416.1411, 416.1433, 416.1457(c)(3).
Pertinent History
Our rules in 20 CFR sections 404.909(a), 404.933(b), 416.1409(a),
and 416.1433(b) provide that a request for reconsideration and a
request for hearing before an administrative law judge (ALJ) must be
filed within 60 days after the date of receipt by the claimant of the
notice of the determination being appealed. However, the regulations
also provide that a claimant can request that the 60-day time period
for filing a request for review be extended if the claimant can show
good cause for missing the deadline. The request for an extension of
time must be in writing and must give the reason why the request for
review was not filed timely.
When the claimant fails to timely request reconsideration or an ALJ
hearing, the Agency applies the criteria in section 404.911 or section
416.1411, as appropriate, in determining whether good cause for missing
the deadline exists.
Section 404.911(a) states:
In determining whether you have shown that you had good cause for
missing a deadline to request review we consider--
(1) What circumstances kept you from making the request on time;
(2) Whether our action misled you;
(3) Whether you did not understand the requirements of the Act
resulting from amendments to the Act, other legislation, or court
decisions; and
(4) Whether you had any physical, mental, educational, or
linguistic limitations (including any lack of facility with the English
language) which prevented you from filing a timely request or from
understanding or knowing about the need to file a timely request for
review.
Section 416.1411(a) sets out essentially the same criteria.
If the Agency determines that good cause for the claimant missing
the deadline to request review exists, we process the request for
review in accordance with established procedures and the prior
administrative action is not final or binding for purposes of applying
the rules on either res judicata or administrative finality.
Many SSA initial and reconsideration determination notices denying
claims for Social Security benefits based on disability issued from
September 1, 1977, through February 28, 1990, stated that, if the
claimant did not seek administrative review within the 60-day time
period, he or she still had the right to file another application at
any time. The notices did not further state that filing a new
application instead of a request for administrative review could result
in the loss of benefits. Some claimants have alleged that they have
failed to file a timely request for administrative review as a result
of these notices.
In 1984, SSA began making revisions to its notices to explain more
clearly the difference between seeking administrative review and filing
a new application. Language was added to the initial determination
notice stating that a new application is not the same as an appeal of
the determination. In 1989 SSA began adding this language to the
reconsideration determination notice along with an explanation on both
notices to specifically advise the claimant that failing to seek
administrative review could result in a loss of benefits. SSA completed
implementation of this revision to the notices in February 1990.
SSA has further revised its notices as a result of section 5107 of
the Omnibus Budget Reconciliation Act of 1990, Pub. L. 101-508. This
section amended the Act to provide that a failure to timely request
administrative review of an initial or reconsideration determination
made on or after July 1, 1991, may not be used to deny or dismiss a
subsequent claim for benefits on the basis of res judicata if the
claimant demonstrates that he or she failed to request administrative
review of the determination acting in good faith reliance upon
incorrect, incomplete or misleading information, relating to the
consequences of reapplying for benefits in lieu of seeking review of
the determination and the information was provided by an officer or
employee of SSA or a State agency making disability determinations
under section 221 of the Act.
Policy Interpretation
SSA will make a finding of good cause for late filing of a request
for administrative review for a title II, title XVI, or concurrent
title II/title XVI claim if a claimant received a notice covered by
this Ruling and demonstrates that, as a result of the notice, he or she
did not timely request such review. The mere receipt of a notice
covered by this Ruling will not, by itself, establish good cause.
A. Notices Covered by This Ruling
A notice is covered by this Ruling if it advised the claimant that
if he or she did not request administrative review, he or she still had
the right to file a new application at any time without further
explaining that filing a new application instead of a request for
administrative review could result in the loss of benefits. The
following are notices covered by this Ruling, if the notice did not
state that filing a new application instead of a request for review
could result in the loss of benefits.
1. Initial Determination Notice Containing The Following Sentence:
``If you do not request reconsideration of your case within the
prescribed time period, you still have the right to file another
application at any time.''
2. Reconsideration Determination Notice Containing The Following
Sentence:
``If you do not request a hearing of your case within the
prescribed time period, you still have the right to file another
application at any time.''
A notice described above is not excluded from the Ruling simply
because it contained the following additional sentence: [[Page 20551]]
``A new application is not the same as an appeal of this
determination.''
However, the fact that a notice contained this additional statement
is a factor to be considered along with all of the pertinent facts in
each case in determining whether good cause for failure to file a
timely request for administrative review exists. The presence of this
additional statement will make it more difficult for a claimant to show
that he or she did not make a timely request for administrative review
as a result of the notice. In making the good cause determination when
the notice contained this additional statement, the adjudicator may
consider whether the claimant should reasonably have been expected to
make additional inquiries, whether such inquiries were made, and the
results thereof.
B. Proof of Receipt of a Notice Covered by This Ruling
Absent evidence to the contrary, SSA will presume that any notice
of an initial or reconsideration determination denying a claim for
title II disability benefits is covered by this Ruling if it was dated
after August 31, 1977, and prior to March 1, 1990.
In all other situations (e.g., notices in title II nondisability
claims, title XVI disability notices and any notice dated prior to
September 1, 1977, or after February 28, 1990), the claimant must
furnish a copy of the notice covered by this Ruling, or SSA's records
must show that a notice covered by this Ruling was issued to the
claimant.
C. Failure To Request Administrative Review as a Result of a Notice
Covered by this Ruling
Under this Ruling, the Agency will find that a claimant has
demonstrated that the failure to file a timely request for
administrative review was the result of a notice covered by this Ruling
if he or she provides an acceptable explanation, based on all the
pertinent facts in a particular case, linking his or her failure to
file a timely request for administrative review to the absence in the
notice of a statement that filing a new application instead of a
request for administrative review could result in the loss of benefits.
In making this determination, factors which an adjudicator may
consider include, but are not limited to, the following:
--The claimant's explanation of what he or she thought the notice meant
and how that understanding influenced his or her actions;
--The claimant's mental condition;1
\1\In cases in which the claimant's capacity to understand the
administrative appeal process is questionable, Social Security
Ruling 91-5p and for Fourth Circuit residents, Acquiescence Ruling
90-4(4) should be applied prior to consideration under this Ruling.
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--The claimant's educational level;
--The claimant's ability to speak and understand the English language;
--How much time elapsed before the claimant filed a subsequent claim or
sought administrative review of the prior determination; and
--Whether the claimant was represented by a non-attorney. Normally,
representation by an attorney at the time of receipt of the notice bars
a claimant from relief under this Ruling.
D. Good Cause Found
If the adjudicator determines that good cause exists, he or she
will extend the time for requesting administrative review and take the
action which would have been appropriate had the claimant filed a
timely request for administrative review. A finding of good cause will
result either in a new determination or decision that is subject to
further administrative or judicial review of the claim, or a dismissal
(for a reason other than late filing) of the request for review, as
appropriate.
E. Good Cause Not Found
If the adjudicator determines that good cause does not exist, he or
she will deny the request to extend the time for filing and dismiss the
request. The dismissal will state the adjudicator's rationale for not
finding good cause and advise the claimant that he or she can file a
new application.
FOR FURTHER INFORMATION CONTACT: This Ruling does not supersede or
modify any instructions issued in connection with Acquiescence Ruling
(AR) 92-7(9). Claimants in the Ninth Circuit are eligible for relief
under the conditions set forth in this Ruling and/or under the AR as
applicable. SSA will not apply this Ruling where the administrative
determination at issue has been reopened previously or where a decision
finding good cause to extend the time for review of that determination
has been made previously under SSA policies and procedures or under
court order.
EFFECTIVE DATE: This Ruling is effective April 26, 1995.
CROSS-REFERENCES: Program Operations Manual System, Part 2, Chapter
031, Subchapters 01 and 09; Part 4, Chapter 275, Subchapter 16;
Acquiescence Ruling 92-7(9); Social Security Ruling 91-5p.
[FR Doc. 95-10208 Filed 4-25-95; 8:45 am]
BILLING CODE 4190-29-P
