TN 51 (12-12)

Citations:

Social Security Act 215(a)(7)(A)

Regulations 20 CFR 404.213

Acquiescence Ruling (AR) AR 12-1(8) dated August 27, 2012
Petersen v. Astrue, 633 F.3d 633 (8th Cir. 2011)

A. Petersen court decision

On February 3, 2011, the United States Court of Appeals for the Eighth Circuit, in Petersen v. Astrue, ruled against the Social Security Administration (SSA) concerning our policy on applying the Windfall Elimination Provision (WEP) to National Guard technicians holding dual status as civilian federal employees and military members of the National Guard.

The court held that the civilian work of a retired National Guard dual status technician was service “as a member of a uniformed service.” The court considered the Civil Service Retirement System (CSRS) pension of Petersen to be a “payment based wholly on service as a member of a uniformed service” and, therefore, exempt from the WEP.

According to section 215(a)(7)(A) of the Social Security Act and Regulations 20 CFR 404.213(e)(9), the WEP does not apply to the benefits of a retired or disabled worker receiving monthly payments based wholly on service as a member of a uniformed service.

B. Applying the Petersen AR

To comply with the Eighth Circuit Court’s decision, we published AR 12-1(8). Beginning February 3, 2011, we no longer apply the WEP when a claimant or beneficiary meets the Petersen criteria.

If we made an initial determination or appeal decision to apply WEP on or after February 3, 2011, we will remove the WEP if the beneficiary meets the Petersen criteria and requests a readjudication of the WEP determination or decision.

1. Petersen criteria

1. Do not apply the WEP when:

   • the beneficiary receives a CSRS pension based wholly on service as a dual status civilian technician for the National Guard;

   • the beneficiary has his permanent legal residence in AR, IA, MN, MO, NE, ND, or SD at the time we make the WEP determination or decision; and

   • we make the WEP initial determination or appeal decision on or after February 3, 2011.

2. Apply WEP when the CSRS pension is based on other non-covered employment in addition to employment as a dual status technician with the National Guard. Follow instructions in RS 00605.380B.4.

2. Residence of the beneficiary

For purposes of the Petersen AR, the permanent legal residence is the place where a person has his or her principal home with intent to remain. Mere absence from the residence, without intending to move away (e.g., visit, transitory stay at a seasonal home, etc.) does not change the beneficiary’s residence.

If the beneficiary moves into or out of the Eighth Circuit after we make a WEP determination or decision, see RS 00605.380B.5. and RS 00605.380B.6. in this section.

3. Determining dual and non-dual status

a. Dual status

A dual status technician is an employee who performs service as a federal civilian military technician for the National Guard and is also required to be a military member of the National Guard.

b. Non-dual status

A non-dual status technician (also known as a non-military technician) is a civilian technician who:

• is not a member of the National Guard; or

• ceased to be a member of the National Guard; or

• is not required to maintain membership in the National Guard.

c. Evidence of dual status service

Acceptable evidence of dual status service is documentation from the National Guard stating that the numberholder served as a dual status federal civilian employee in a military technician position with the National Guard.

4. Pension includes both dual status and other non-covered employment

If the CSRS pension is based on both employment as a dual status National Guard technician and other non-covered employment (including non-dual status), WEP applies. Follow instructions in RS 00605.360 through RS 00605.392. Prorate the pension to determine the months of dual status and the months that are based on other non-covered employment to determine if the WEP guarantee applies. For more information on prorating a pension, see RS 00605.370B.2.

5. Beneficiary moves into the Circuit

When a beneficiary moves into the Eighth Circuit after we have made the WEP determination or decision, the following guidelines apply:

1. If the beneficiary requests a readjudication, follow processing instructions in RS 00605.380D.1. in this section.

2. If the beneficiary files an appeal of the WEP determination or decision, follow instructions in RS 00605.380F.

6. Beneficiary moves out of the Circuit

When a person establishes residence outside of the Eighth Circuit after receiving the benefit of the Petersen AR, he or she will continue to get the benefit of the AR (i.e., the WEP will not apply), unless or until we apply the WEP again based on legislation, regulation, or judicial action.

C. Processing initial claims

To apply the Petersen AR for an initial determination made February 3, 2011 or later, process as follows:

1. Verify that the CSRS pension is based only on employment as a dual status National Guard technician.

2. Enter “9” (Other) and “Petersen AR” as the reason for WEP exclusion on the Windfall Elimination Exclusion (WEPX) screen in the Modernized Claims System (MCS) application path. For information on the WEPX screen, see MSOM ICD 004.002.

3. When the Master Beneficiary Record (MBR) is established, add a Special Message Data (SP MSG) line on the MBR via Miscellaneous Online Edited Transactions (MONET) and enter the remark “WEP exemption applies effective MMYY (enter month and year) based on Petersen AR.” For information about the SP MSG on the MBR, see MSOM T2PE 007.008.

4. Electronically store evidence of dual status the beneficiary provides through the Non-disability Repository for Evidentiary Documents (NDRED) or in eView for disability claims as appropriate. For information about storing documents through NDRED or eView, see GN 00301.322.

If the CSRS pension is based on both employment as a dual status National Guard technician and other non-covered employment (including non-dual status), see RS 00605.380B.4. in this section.

D. FO procedure for readjudication request under the Petersen AR

An initial determination or appeal decision made to apply the WEP on or after February 3, 2011, may be subject to readjudication under the Petersen AR. For information about readjudication, see GN 03501.015. Before we can consider revising the WEP determination or decision, the beneficiary must request a readjudication either on his or her own initiative or in response to the Petersen AR notice sent by Central Office. For an exhibit of the Petersen AR notice, see NL 00703.966A.

The normal time limits for reopening and administrative finality do not apply to a request for a readjudication under the AR.

1. Processing a request for readjudication under the Petersen AR

If a beneficiary requests a readjudication of a WEP determination or decision based on the Petersen AR:

1. Verify that the date of the WEP determination or decision was February 3, 2011 or later by checking the date on the notice of initial determination or the notice of decision in Online Retrieval System (ORS) at http://orsstd.sspf.ssa.gov/orsstd/foldersearch.do.

2. Verify that the beneficiary’s permanent legal residence was in AR, IA, MN, MO, NE, ND, or SD at the time we made the WEP determination or decision by checking ORS for the address on the notice of initial determination or notice of decision or the Historical Payee Name Address (HPNA) query. For more information on the HPNA query, see MSOM QUERIES 006.014.

3. Verify that the CSRS pension is based only on employment as a dual status National Guard technician.

4. If the CSRS pension is based on both employment as a dual status National Guard technician and other non-covered employment (including non-dual status), see RS 00605.380B.4. in this section.

5. Obtain a Form SSA-795 (Statement of Claimant or Other Person) with the following information:

   • a statement requesting a readjudication and explaining how the Petersen AR or circuit court decision could change the prior WEP determination or decision; and

   • the permanent legal residence address at the time of the determination and effective date of residence.

6. If there is reasonable doubt about the beneficiary’s permanent legal residence, request evidence of where he or she paid property or income taxes, or voted; or other convincing evidence of permanent residence.

7. Either approve or deny the request for readjudication, according to instructions below.

2. Approving a request for readjudication under the Petersen AR

If the beneficiary meets the criteria above, remove the WEP effective with the first month we applied the WEP as follows:

1. Process a Primary Insurance Amount (PIA) recomputation in the Postentitlement Online System (POS). Enter “9” (Other) and “Petersen AR” as the WEP exclusion on the Windfall Elimination Exclusion (WEPX) screen. For information on the WEPX screen, see MSOM ICD 004.002.

2. The POS input will not process successfully; however, the input generates an Automated Job Stream (AJS-1) exception that is controlled and processed in the processing center (PC).

3. Add an SP MSG line in the MBR via MONET and enter the remark “WEP exemption applies effective MMYY (enter month and year) based on Petersen AR.” For information about the SP MSG on the MBR, see MSOM T2PE 007.008.

4. Electronically store any evidence the beneficiary provides through the NDRED or eView if not already present. For information about storing documents through NDRED or eView, see GN 00301.322.

5. Send a manual notice to the beneficiary approving the readjudication request. The Petersen Approval Notice is available in the Document Processing System (DPS) under “General.” For an example of the notice language for the readjudication approval notice, see NL 00703.966B.1.

3. Denying a request for readjudication under the Petersen AR

If the beneficiary does not meet the Petersen AR criteria in RS 00605.380D.1. in this section, deny the request for readjudication of the WEP determination or decision as follows:

1. Add an SP MSG line on the MBR and enter the remark “Petersen AR does not apply for WEP exemption.” (For information on the SP MSG on the MBR, see MSOM T2PE 007.008); and

2. Send a manual notice to deny the request for readjudication. A denial of a request for readjudication is not an initial determination subject to appeal. For information about appeal rights, see GN 03501.015. The Petersen Denial Notice is available in the Document Processing System (DPS) under “General.” Do not include the appeal paragraph ALS198.

3. However, if a beneficiary requests a readjudication under the Petersen AR within the appeal period of the WEP initial determination or appeal decision instead of filing an appeal and you deny the request for readjudication, extend the time to file an appeal of the WEP determination or appeal decision to 60 days after the date you deny the request for readjudication. The Petersen Denial Notice is available in the Document Processing System (DPS) under “General.” Be sure to include ALS198 to extend the time to file an appeal of the prior WEP determination or appeal decision. For information about extending the time to file an appeal, see GN 03501.015D.

See also:

• For an example of the notice language for the readjudication denial notice, see NL 00703.966B.2.

• For an example of the notice language for appeal rights of a prior determination on the readjudication of the Petersen denial notice, see NL 00703.966B.3.

E. Processing center procedure for Petersen AR

1. Requests for readjudication received in PC

Forward all requests for readjudication under the Petersen AR to the servicing field office (FO) for development via a Modernized Development Worksheet (MDW) and show “Petersen AR see RS 00605.380” in remarks. The PC should not control the MDW.

2. PC alert output for PIA recomputation

The FO direct input via POS for a PIA recomputation to remove the WEP will generate an Automated Job Stream 1 (AJS1) exception. The exception generates a Processing Center Action Control System (PCACS) with a Type of Event Level 2 of WEP (TOEL2). Process the recomputation as follows:

1. Review the Claims File User Interface (CFUI) for documentation that the Petersen AR applies;

2. Check the SP MSG on the MBR for related Petersen AR information;

3. Process the AJS1 PIA recomputation exception through MACADE to remove the WEP; and

4. Post the CSWEP field on the MBR via the Civil Service Data (CS) screen with the exclusion code of “I”; this prevents future match alerts for OPM pension data. For information about the CS screen, see SM 00842.028.

F. Processing appeals of the WEP determination

For a WEP determination or decision made on or after February 3, 2011, no appeal is necessary in order to apply the Petersen AR if the beneficiary meets the criteria in RS 00605.380B.1. in this section.

1. Appeals received in the FO or Regional Office (RO)

If a beneficiary files an appeal for removal of WEP based on dual status technician service, forward appeal request as appropriate and follow normal operating procedures beginning in subchapter GN 03100.000.

2. Reconsideration requests received in the PC

Process the reconsideration request per the instructions in GN 03102.000. The appeal request must be filed timely or good cause for late filing must be found.

If the beneficiary meets the criteria in RS 00605.380B.1.:

1. Remove the WEP effective with the first month we applied the WEP; and

2. Enter “9” (Other) as the WEP exclusion and “Petersen AR” as the WEP exclusion on the Windfall Elimination Exclusion (WEPX) screen. For information on the WEPX screen, see MSOM ICD 004.002.

3. Hearing decisions returned to the PCs from Administrative Law Judge (ALJ) or Appeals Council (AC)

If you receive an ALJ or AC decision based on Petersen AR, remove WEP as directed by the ALJ or AC if:

• the required evidence that the CSRS pension is based on service as a dual status civilian technician for the National Guard is in file; and

• the beneficiary’s permanent legal residence is in AR, IA, MN, MO, NE, ND, or SD; and

• we made the WEP initial determination or appeal decision on or after February 3, 2011.

For ALJ or AC decisions that do not meet the requirements above, follow the instructions in GN 03103.260, How to Protest ALJ Decisions.

4. Hearing request received at the ALJ level

Grant the request for removal of WEP if:

• the required evidence that the CSRS pension is based on dual status civilian technician for the National Guard is in file; and

• the beneficiary’s permanent legal residence was in AR, IA, MN, MO, NE, ND, or SD at the time of the initial determination; and

• we made the WEP initial determination or appeal decision on or after February 3, 2011.

NOTE: The Petersen court decision is not in itself a reason for allowing a good cause determination for failure to file a timely appeal request.

G. National 800 Number (N8NN) receipt of Petersen AR inquiries requesting relief

If you receive an inquiry requesting relief under the Petersen AR:

• Schedule a post-entitlement (PE) appointment if one is available; or

• Include “Petersen v. Astrue” in REMARKS of the Modernized Development Worksheet (MDW) and send the MDW to the servicing field office.

H. References

• GN 03501.000 Acquiescence Rulings

• GN 03100.000 Appeals