[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;<SUP>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