TN 4 (06-05)

A. Policy – When the Question of Reopening Will Arise

Receipt of a request by any party to the determination or representative of a party questioning the correctness of the determination or the most recent appeal step must be:

• in writing; and

• within the applicable time limit.

Although SSA is not legally required to reopen a determination or decision when the claimant requests it (even if he/she makes the request within 1 year of the notice of initial determination), it is SSA's policy to consider the request in all cases and to decide if reopening is appropriate. Consider all requests to reopen. In such situations, evaluate all the evidence in the file together with any evidence the individual may submit. The consideration of a request to reopen merely initiates a threshold review of the claims file, but does not constitute a reopening (see SI 04070.005A.8. for the definition of “threshold review”). If reopening and revision are found to be appropriate, then proceed to reopen.

1. New SSI Application

If filing a new SSI application within the administrative finality period after an initial determination on a prior application, see SI 04070.015B.2.b.

2. Receipt of “new and material evidence”

Receipt of “new and material evidence” or other information that indicates a prior determination or decision may be in error. The receipt of new and material evidence initiates reopening, even if the final result is not changed.

3. Discovery of an error

Discovery of an error on an SSA record; e.g., transposed digits on an income entry.

4. Threshold Review

Threshold Review (see section SI 04070.005A.8.) is a preliminary review of a claims file to determine whether or not a determination or decision should be reopened without further investigation or development. It precedes any reopening and revision that may occur in any case. This can occur after a claimant requests a reopening or when SSA initiates a reopening on its own.

5. The Claimant supplies evidence

If the claimant brings documentation and alleges that it was not in the file when the initial determination was made, review the evidence in the folder together with the evidence that has been supplied by the claimant.

a. The evidence duplicates evidence already in the file

If any of the evidence that was supplied by the claimant duplicates any of the evidence already contained in the folder, it is not new and material evidence. Return it to the claimant and explain why you will not use it to reopen or revise the determination. If all of the evidence that the claimant supplies duplicates evidence in the folder, review the evidence in the folder to ensure that it supports the determination and that there are no clerical errors. If so, use Form SSA-L8165-U2 (SSI Notice of Decision) to prepare a notice to the claimant explaining why you are not reopening the prior determination—DO NOT INCLUDE APPEAL RIGHTS in the notice, since the decision not to reopen is an act of administrative discretion and is not appealable.

b. There is evidence that does not duplicate evidence already in the file

If any part of the evidence that the claimant has supplied does not duplicate evidence contained in the folder, review it to ensure that it is material to the determination. If any part of that evidence is not material to the determination, return it to the claimant and explain why you are not using it to reopen and revise the determination. If any of the evidence is material to the determination, accept it and incorporate it into the folder. Make a note in writing describing the new and material evidence and describing the error or possibility of error in the prior determination. This is “affirmative action in writing,” and you have now reopened the prior determination. This does not ensure that the determination will be revised.

6. The claimant alleges new evidence

If the claimant brings in no new evidence, but alleges new evidence that he or she claims will change the determination, ask the claimant for a description of the new evidence and obtain as much of the available information as possible from the person who has the new evidence.

a. The new evidence duplicates evidence already in file

If all the evidence clearly only duplicates evidence that is already in the file and/or is clearly not material to the determination, review the evidence in the folder to ensure that it supports the determination and that there are no clerical or other errors. If so, use Form SSA-L8165-U2 (SSI Notice of Decision) to prepare a notice to the claimant explaining why you are not reopening the prior determination—DO NOT INCLUDE APPEAL RIGHTS in the notice, since the decision not to reopen is an act of administrative discretion and is not appealable.

b. The new evidence does not duplicate evidence already in file

If any of the evidence does not appear to duplicate evidence that is already in the file and if it appears that it is material to the determination, obtain the name, phone number and address of the individual who has the evidence. Advise the claimant of their responsibility of obtaining and providing SSA with the new evidence. Appeal rights will be appropriate when you advise the claimant of your decision to revise the determination.

B. Policy – Affirmative Action In Writing

Affirmative action in writing is a writing that questions the correctness of a prior determination or decision. Affirmative action in writing will take the process beyond a threshold review and initiate a reopening.

1. Requirements for Affirmative Action in Writing

a. By an SSA employee or resulting from an SSA business process

It must be by an SSA employee or as the result of an SSA business process; e.g., a computer matching run, which results in an alert.

b. In writing

It must be in writing. It can be a Report of Contact (RPOC), DROC, or DWO1 screen annotation, an alert (e.g., resulting from an interface alert, etc.), a statement from a party to the determination or decision (SSA-795), a redetermination form with a specific question annotating the possibility of error in some manner, or a Quality Assurance (QA) report. It must identify an error or a possibility of an error in a specific case.

IMPORTANT: Mere discovery of an error or possibility of an error is not sufficient—it must be documented in writing.

c. Conscious and deliberate questioning in a specific case

It requires a conscious and deliberate questioning of the correctness of a prior determination or decision in a specific case either by a person or as a result of a computer alert. It does NOT apply to

• a class of cases, or

• the date that a redetermination (RZ) is initiated.

2. Types of Affirmative Action in Writing Include:

a. Output

These are SSIRD's, SSID's, alerts, listings or other printouts, etc., generated by special systems queries or runs that are designed to identify and record errors or potential errors. System runs include, but are not limited to MEF, SSR, IRS and other interfaces. For interface alerts, we establish the date of affirmative action in writing in accordance with the instruction contained in SI 02310.005C.5. – Interface Operations and Related Issues. Otherwise, we establish the date of affirmative action in writing as follows:

• If the output includes a run date, we use that date as the date of affirmative action in writing.

• If there is no run date, but there is a query date, we use the query date.

If there is no query date or run date, use the date of the alert or diary on the SSR. For procedures regarding interface alerts, see SI 04070.015C.

b. Subsequent Application

A subsequent application is an application which is filed after the notice of an initial determination on a prior application which has been less than fully favorable. It can be considered an affirmative action in writing provided that the new application is comprised of substantially the same issues and time period as the prior application. The initial determination of the first application may be reopened and revised if a favorable determination is made on the second application and if eligibility is established under administrative finality rules for a time period covered by the first determination.

If there is good cause to reopen (see SI 04070.010F.5.), the application under consideration must have been filed within 2 years after the notice of the initial determination on the prior application. If good cause does not exist, the application under consideration must have been filed within 1 year after the date of notice of the initial determination on the prior application.

NOTE: If a protective filing date is established (see SI 00601.015 – Protective Filing – General and GN 00204.010 – Protective Filing), the protective filing date is the date of affirmative action in writing.

c. Report of Contact

This can be a SSA-1719B, DW01 entry, RPOC, the MSSICS DROC, or other report or statement in which the SSA employee indicates the prior determination might be incorrect.

The affirmative action in writing date is the date the record was established.

d. Form SSA-795

We can use a form SSA-795 or other statement, letter, MSSICS DPST, etc., from the claimant, his or her representative payee, representative, or another individual that could be interpreted as questioning the correctness of a prior determination.

The affirmative action in writing date is the date the FO or other SSA component noted the form or the envelope as received, either by date stamp or otherwise.

e. Redetermination Form

We can use any redetermination form (e.g., SSA-8202, SSA-8202-OCR, SSA-8203-BK, DW01 screen annotation, or MSSICS statement for determining continuing eligibility, etc.) on which the claimant or his or her representative payee or representative expressly questions the correctness of the prior determination. The treatment of MSSICS screens as affirmative action(s) in writing should be explained and dated.

The affirmative action in writing date is the date the FO or other SSA component noted the form or envelope as received, either by date stamp, DW01 or MSSICS screen annotation, or otherwise.

f. Quality Assurance (QA) Report

We can use a QA or assessment report concerning an erroneous or potentially erroneous prior determination or decision.

The affirmative action in writing date is the date that the QA or other SSA employee questioned in writing the earlier determination or decision.

g. Financial Institution's Report

We can use any financial institution's report or a combination of reports from several financial institutions showing account balances and/or interest.

Except as noted, we use the date that the report or envelope was annotated as received by the FO or other SSA component, either by date or otherwise as the affirmative action in writing date. All issues based on information from the report receive the same date.

IMPORTANT NOTE: If the request resulted from an alert generated by an IRS interface run, see SI 04070.015C.1. This also applies to alerts on printouts which are generated by special runs (e.g., to identify potential errors related to a type of interest or bank account). If the request resulted from an indication that a payment or payments may be in error (e.g., a recipient notifies SSA of a previously unknown bank account by signing an SSA-795), use the date SSA learned of and documented the possibility of the error.

h. Development

Development of an issue can raise another issue, which in turn, results in reopening. For example, while developing income from a resource, the CR learns that the recipient underwent a change in living arrangement that resulted in an overpayment.

We use the date that the new issue was first documented in the file. Most likely, this will be a different, later date from the date of affirmative action in writing for the original issue.

i. DOC Transfers of Redeterminations

We use the date the redetermination is transferred from the WB DOC to the field office on the e8202 website. DOC transfer redeterminations that are accreted to PEODS electronically are not affirmative action(s) in writing.

3. Special Situations with Affirmative Action in Writing

a. More Than One Date of Affirmative Action in Writing

If there is more than one date of affirmative action in writing, use the earliest possible date. If the dates are more than 6 months apart, the rules concerning diligent pursuit may apply. (See SI 04070.040 – Revising SSI Determinations)

b. No Ascertainable Date of Affirmative Action in Writing

If there is no ascertainable date of affirmative action in writing, use the date of current review as the date of affirmative action in writing. (See the examples in SI 04070.015D.)

C. Procedure – Action to Be Taken After Affirmative Action in Writing or Request By Claimant

After affirmative action in writing is established, take action promptly, including but not limited to:

• Annotating the MSSICS DW01 screen, or the Modernized Development Worksheet (MDW) screen; and

• Beginning the investigation and development or reconciliation of such action.

• Keep a copy of the affirmative action in writing in file for documentation.

1. Processing Interface Alerts

When processing interface alerts:

• Use diaries and alerts resulting from interface runs to obtain information about income or resources that affect eligibility or payment amount (e.g., notice of accounts in financial institutions from IRS interface runs), that may constitute resources to recipients and can also be sources of income if they are interest-bearing. Both the income and resource issues resulting from the information identified on the alert will have the same affirmative action in writing date. (See SI 02310.005C.5. – Interface Operations and Related Issues)

• Determine the date of affirmative action in writing. See section SI 04070.015B.3.

D. Examples of Reopenings

1. Good Cause to Reopen Exists - Subsequent Application Filed Within Two Years

On June 19, 2003, the claimant files an application for SSI benefits as an aged individual, and is eligible on the claim. He filed a previous application which had been denied for excess resources by a notice of initial determination dated February 6, 2002. He never appealed that determination.

Although he has not alleged on the current application that the prior determination was incorrect, your development turned up new and material evidence that the resources which supported the prior determination actually belonged to another individual and were not available for the claimant's maintenance and support.

Because good cause exists, reopen and revise the initial determination on the prior application. The prior determination preceded the date of the current application, which represents the date of affirmative action in writing, by less than 2 years.

2. Good Cause to Reopen Does Not Exist — Subsequent Application Filed More Than One Year after Prior Determination (Example of Threshold Review)

Same facts as Example 1 except that there is no basis for finding good cause (i.e., no new and material evidence, error on the face of the evidence or clerical error).

Because the date of the prior determination preceded the date of the current application (the date of affirmative action in writing) by more than one year and there is no basis for finding good cause, you may not reopen and revise the prior determination.

3. Application Following Denial by ALJ

On August 2, 2003, the claimant files a subsequent application for SSI benefits as an aged individual and is found eligible. The notice of initial determination denying him benefits on a prior application because of excess income was dated June 16, 2002. He appealed, and his first claim was ultimately denied by an ALJ on January 18, 2003.

In developing the current claim, you find out that a decimal was misplaced in developing the prior application, making it appear that his monthly income was $2,900.00 when it was really $290.00. Because he waived his right to personal appearance before the ALJ, neither the claimant nor the ALJ caught the error.

You cannot reopen and revise the prior decision, because it was made by the ALJ. Make a determination based on the current application and effectuate it. Then, forward the folder to the Hearing Office where the decision on the prior application was made under cover of a memorandum explaining the error. This will provide an opportunity for the ALJ to reopen and revise the earlier decision.

4. Application Following ALJ Denial - More Than 2 Years after Previous Initial Determination

Same facts as Example 3. except that the prior initial determination was dated June 16, 2001 and the prior ALJ decision was dated January 18, 2003.

Do not forward to the ALJ, even though the ALJ decision was made less than two years before the current application was filed (August 2, 2003), because the prior initial determination (June 16, 2001) preceded the date of the current application (the date of affirmative action in writing) by more than 2 years.

5. Protective Filing Date within Two Years after Prior Initial Determination

The claimant filed an application for SSI benefits as an aged individual on July 6, 2003. Because of a signed, written statement, a protective filing date of June 21, 2003 is established, and the claim is allowed.

You learn that the claimant had filed a previous application which was denied on June 30, 2001. Your investigation uncovers new and material evidence that clearly establishes eligibility at least as of the date of the prior application. He never appealed the prior initial determination.

Reopen and revise the prior determination, since the protective filing date is the date of affirmative action in writing and the previous initial determination preceded it by less than 2 years.