TN 29 (03-17)

Citations: Social Security Ruling

(SSR) 17-1p: 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

A. When to use these instructions to reopen Title II and Title XVI determinations and decisions

Use these instructions to reopen Title II and Title XVI determinations and decisions when the Defense of Marriage Act (DOMA) or state laws (including the laws of U.S. territories) prohibited Social Security from recognizing a marital relationship when Social Security would have recognized the marital relationship but for the relationship being between two people of the same sex.

For Title II, we recognize a valid marital relationship as of the date the marital relationship was established, including during periods of time when the number holder's (wage earner) state of domicile did not recognize same-sex marital relationships.

For more information about determining Title II marital status, refer to GN 00210.002.

For Title XVI, we recognize a same-sex marriage as of the date the marriage was established, including during periods when the laws of the state of the couple’s permanent home did not recognize same-sex marriages.

For more information about determining Title XVI marital status, refer to GN 00210.800.

1. Defense of Marriage Act

The 1996 Defense of Marriage Act (DOMA), in section 3, defined marriage for Federal benefit purposes as a union between a man and a woman. Social Security was prohibited from recognizing same-sex marriages and marital relationships because of DOMA.

On June 26, 2013, the U.S. Supreme Court held that section 3 of DOMA was unconstitutional.

You may reopen determinations or decisions, under normal reopening procedures if the agency’s decision or determination:

1. Did not recognize a same-sex marriage because of DOMA; and

2. Non-recognition of the same-sex marriage affected eligibility, entitlement, or payment amount.

2. State laws

Some states’ laws did not permit same-sex marriages and did not recognize same-sex marriages from other states.

On June 26, 2015, the U.S. Supreme Court held that same-sex couples have a constitutional right to marry in all states, and have their valid marriages recognized by all states.

You may reopen determinations or decisions, under normal reopening procedures where the agency’s decision or determination:

1. Did not recognize a same-sex marriage because state law prohibited same-sex marriages or prohibited recognition of same-sex marriages from other states; and

2. Non-recognition of the same-sex marriage affected eligibility, entitlement, or payment amount.

When we applied a law that the U.S. Supreme Court later found unconstitutional, see information about reopening determinations or decisions. For Title II, refer to GN 04010.020; and for Title XVI, see SI 04070.010.

For more information about determining the marital status of same-sex couples, for Title II refer to GN 00210.002 and for Title XVI, see GN 00210.800.

B. Reopening a Title II determination or decision

You may reopen a Title II determination or decision at any time if the determination or decision was fully or partially unfavorable and there is an error on the face of the evidence because the Defense of Marriage Act or state law(s) prohibited Social Security from recognizing a same-sex marriage or marital relationship.

You may reopen within four years from the notice date of the initial determination for good cause. Good cause exists, for example, when there is an error on the face of the evidence.

• Consider reopening if the determination or decision did not recognize the same-sex marriage or marital relationship alleged for that claim or appeal, and non-recognition of the same-sex marriage affected entitlement or payment amount.

• To determine the reason for denial, do not rely only on denial codes because we may have denied the claim or appeal for more than one reason.

• Determine the marital status following instructions in GN 00210.002.

• Determine whether the claimant met all other entitlement requirements for the benefits applied for, such as age, insured status, and duration of marriage.

• Follow Title II reopening procedures in GN 04000.000.

C. Reopening a Title XVI determination or decision

You may reopen a Title XVI determination or decision within two years of the initial determination or decision when there is an error on the face of the evidence because the Defense of Marriage Act or state law(s) prohibited Social Security from recognizing a same-sex marriage or marital relationship.

• Consider reopening if the determination or decision did not recognize the same-sex marriage or marital relationship alleged for that claim or appeal, and non-recognition of the same-sex marriage affected eligibility or payment amount.

• To determine the reason for denial, do not rely only on denial codes because we may have denied the claim or appeal for more than one reason.

• Determine the marital status following instructions in GN 00210.800.

• Determine any change in eligibility or payment amount because we recognize the same-sex marriage.

• Follow Title XVI reopening procedures in GN 04000.000 and SI 04070.000.

D. Title II entitlement for claimants who received Title XVI payments

Use these instructions when there is Title II entitlement for claimants who received Title XVI payments.

1. Consider possible Title II entitlement when reopening a Title XVI determination or decision

When reopening a Title XVI determination or decision, also reopen Title II determinations or decisions, if appropriate, using the instructions in this section.

Consider possible entitlement to Title II benefits. An application for Title XVI is an application for Title II benefits.

For more information about open Title II applications, refer to GN 00204.027.

2. Reopening a Title II determination or decision and the effect on Title XVI eligibility and payment

When reopening a Title II determination or decision, also reopen Title XVI determinations or decisions, if appropriate, using the instructions in this section.

If reopening results in an award of a Title II benefit, the benefit amount may affect Title XVI eligibility or payment amounts, including for previous months. To reopen the Title XVI determination or decision and take any necessary actions on his or her record, follow instructions in GN 00210.030C in this section.

E. Special situations

Use these instructions for special situations when reopening determinations or decisions.

1. Non-marital legal relationships

We recognize some non-marital legal relationships (such as some civil unions and domestic partnerships) as marital relationships for Title II and Medicare benefit purposes. If you reopen a determination or decision because we did not recognize a same-sex non-marital legal relationship, follow instructions in GN 00210.004.

2. Foreign marriage

If you reopen a determination or decision because we did not recognize a foreign same-sex marriage or non-marital legal relationship, refer to GN 00210.006.

3. Common-law marriage

If you reopen a determination or decision because we did not recognize a same-sex common-law marriage, refer the claim for a legal opinion, according to instructions in GN 01010.815.

For more information about common-law marriage, refer to GN 00305.060 and GN 00305.065.

4. Claimant never filed an application for benefits

If the claimant never filed an application for benefits, there is no determination or decision to reopen, but the claimant may file a new application for benefits. To process new applications involving determinations of same-sex relationships, refer to GN 00210.000.

5. Protective filing for spouse named on the number holder’s Title II application not closed out

Naming a current spouse on the number holder’s Title II application establishes a protective filing for spouse’s benefits. If a same-sex spouse was named on the number holder’s Title II application, and we did not close the protective filing, determine if there is an open application. For more information about protective filing, refer to GN 00204.010.

6. Reopening results in recognition of a marriage but the claimant does not meet the duration of marriage requirement

If reopening a Title II determination or decision results in us recognizing a same-sex marriage, the claimant must meet all other factors of entitlement for Title II spousal benefits, including the duration of marriage requirement. If the claimant does not meet all factors of entitlement, the claimant may file a new application for benefits.

For more information about duration of marriage requirements, refer to GN 00210.100.

7. Claimant currently receives retirement benefits and reopening would result in entitlement to a spouse benefit

If reopening a determination or decision results in an award of spouse benefits, but the claimant already receives benefits on his or her own earnings record, discuss month of election options for both spouse and retirement benefits. The spouse benefit might be higher than the retirement benefit. The claimant may elect to withdraw the application for retirement benefits and elect spouse benefits only.

For more information about month of election options, refer to GN 00204.039. For more information about rules for withdrawing applications, refer to GN 00206.000.

F. References

• GN 00210.000 Same-Sex Marriage Claims

• GN 04001.000 Reopening (Title II Only)

• GN 04010.000 Reopening Within 4 Years (Title II and Entitlement Under Title XVIII)

• GN 04010.020 Reopenings - Error on the Face of the Evidence

• GN 04020.000 Unrestricted Reopening (Title II only)

• GN 04030.000 Administrative Finality – Special Situations (Title II only)

• GN 04040.000 Administrative Finality – Relationship to Other Procedures (Title II only)

• SI 04070.000 Administrative Finality - SSI

• SI 04070.010 Title XVI Administrative Finality – General Reopening Policies