TN 1 (07-99)

A. Policy

GENERAL

If the claimant visits an office to file an appeal, he/she will receive a face-to-face interview the same day. The interview may be conducted by a service representative or higher level employee. The person who makes the reconsidered determination must have had no prior involvement with the initial determination.

There is no protective filing for appeals. SSA has to actually receive the written request within the time limit. An appeal request need not be on any special form. If it appears the time limit for requesting an appeal will expire within 10 days, or Goldberg/Kelly is desired, encourage the caller to send a written statement or visit the FO as soon as possible. If sending a SSA-561 to the caller, write your office code and the date of the call in the upper-right-hand corner. (This date may be a factor in deciding whether good cause for late filing can be established.)

See SI 02301.310 for more information on Goldberg/Kelly and good cause for late filing.

NOTE: Before accepting a new disability application or processing additional evidence from a claimant, who has a disability claim pending at any level of administrative review, see DI 51501.001 – Procedural Change for Subsequent Disability Applications, DI 51501.005 - Claimant Requests to File a New Disability Application and DI 51501.015 - Claimant Submits Additional Evidence.

B. Procedure - conducting the interview

1. General

In conducting the interview:

1. Ascertain specific issue(s) with which the claimant disagrees.

2. Explain the determination on his/her claim.

3. Determine if the claimant is only seeking information/clarification or wants to appeal.

4. Explain the right to appeal, the time limits, and the right to be represented. Use pamphlets that you can give to the claimant, as guides.

5. Explain that if he/she appeals, SSA can review all issues even those decided favorably.

6. Assist the claimant in filing an appeal, if that is his/her decision. Determine whether there is additional evidence or information that relates to the issue(s) in controversy.

NOTE: The FO should advise claimants who are unsure whether to appeal an adverse determination of the potential impact of not appealing, i.e. possible loss of benefits.

2. Disagreement with Law, Regulations, or Rulings

Explain that SSA has no option other than compliance with these mandates, and that the individual employees who administer the program are not at liberty to substitute their own judgment or opinion for rulings, regulations, or the law. Rely on the relevant sections of the POMS as a basis for explaining any determination or decision that the claimant finds unsatisfactory. Do not attempt to explain the rationale for any particular operational guidelines, nor go to any great lengths to justify them.

Explain the expedited appeals process (EAP) if the claimant continues to argue that the determination/decision is unconstitutional. See SI 04060.000 ff. (title XVI) for instructions on EAP.

3. Appeal Period Expired

If the claimant contacts SSA after the appeals period has expired, the claimant should be advised of the good cause provisions for late filing of an appeal. If the claimant wishes to appeal, take the request and document the claimant's reasons for being late. See SI 04020.020 on determining good cause.

C. Procedure - new application in lieu of appeal

1. Claimant Wishes to File New Application

The FO must accept the application and assist the claimant in filing an application. Explain that filing a new application is not the same thing as an appeal. An appeal of a determination allows complete review of the basis and rationale for that determination whether or not new evidence is presented to support the appeal request.

Explain that if a new application is filed with no new facts or evidence, the application may be denied without being considered on its merits. Even if the application is allowed, the rules prohibiting retroactivity of SSI applications may result in the loss of benefits.

NOTE: Benefits may be reinstated within 12 months of suspension without filing a new application. See SI 02301.205 for the procedures.

2. Claimant Files New Application

If a claimant files a subsequent application and the subsequent application is to be denied on the basis of res judicata, the adjudicator will first consider whether reopening and revising applies. (See SI 04070.000 ff. for rules on reopening.)

3. Misinformation Alleged

If the claimant alleges he/she failed to appeal an adverse determination because of good faith reliance on incorrect, incomplete, or misleading information given by SSA, we cannot deny the subsequent on the basis of res judicata until we determine whether misinformation exists. In such cases, obtain a signed statement from the claimant (or a qualified representative) that contains the following information (for oral inquiries, the FO will complete a Report of Contact):

• dates of the alleged contact;

• how the contact was made;

• who gave the misinformation; and

• the information we provided on the consequences of reapplying for benefits versus appealing an adverse determination and the questions asked by the SSA employee at the time of the contact.

4. Adverse Determination Made Prior to 7/1/91 (Effective Date of OBRA '90 Provision)

If the rules on reopening cannot be applied, decide whether good cause for extending the time to appeal exists.

5. Adverse Determination Made on or after 7/1/91 (Effective Date of OBRA'90 Provision)

If the subsequent application is being adjudicated at the initial level and you intend to deny on the basis of res judicata, but the claimant alleges misinformation, determine whether misinformation exists.

If the adverse determinations were made prior to 7/1/91 and reopening cannot be applied, then decide whether good cause for extending the time to appeal exists.

a. Misinformation Not Found

If the FO determines that misinformation does not exist, deny the subsequent application on the basis of res judicata. The FO will send the claimant a notice with appeal rights only on the correctness of applying res judicata and an evaluation of why misinformation does not exist.

b. Misinformation Found

If the FO determines that misinformation does exist, make a determination on the merits of the subsequent application and send a notice to the claimant with full appeal rights, i.e., the right to reconsideration.

NOTE: Because misinformation is found to exist, the effect of adjudicating the subsequent application is that the previously adjudicated period must be adjudicated again with appeal rights. It is the same as if the claimant filed an appeal request timely although the subsequent application is not an appeal request.

c. Misinformation Not Alleged

If the claimant files a subsequent application and does not allege misinformation, adjudicate the subsequent application in the usual manner.

6. Misinformation Found After Subsequent Application Denied

If SSA already denied a subsequent application or dismissed an appeal request that was based on res judicata and later determines misinformation was given, vacate the denial or dismissal and issue an initial determination based on the merits of the subsequent application.

NOTE: The level of the administrative review process that first denied or dismissed on the basis of res judicata will make the merits determination or decision.

D. Reference

• Guidance on developing misinformation, GN 00204.008