TN 6 (03-17)

A. Definition of an error on the face of the evidence

An error on the face of the evidence exists when it is absolutely clear that the determination or decision was incorrect. That is, based on all the evidence in the file and any evidence of record anywhere within Social Security Administration’s (SSA) records at the time we made the determination or decision, it is unmistakably certain that the determination or decision was incorrect. (For SSA /Internal Revenue Service (IRS) Reconciliation cases, see GN 04010.020D.)

NOTE:  In view of the interrelationship between Railroad Retirement Board (RRB) compensation records and SSA earnings records, SSA considers RRB compensation records as a part of SSA earnings records for an error on the face of the evidence. We do not consider other records (such as Veterans Affairs (VA) records) to be a part of SSA records.

There is an error on the face of the evidence, for example, where:

• The adjudicator made an incorrect determination by relying on the wrong person's medical report or earnings record.

• Benefits in a cessation case terminate as of the month disability ceased, rather than as of the close of the second month following the month the disability ceased.

• Before the final adjudication of a claim, the claimant submitted a medical report or additional earnings to a field office, which would have resulted in a different conclusion. However, the medical report or additional earnings were not associated with the claim file until after we made an initial determination.

As set out in Social Security Ruling (SSR) 17-1p, an error on the face of the evidence also exists when we:

1. applied a law that the Supreme Court of the United States later found unconstitutional; and

2. the application of that law was material to our determination or decision.

The Office of the General Counsel (OGC) must advise whether (SSR) 17-1p applies to Supreme Court decisions before we may reopen a determination or decision. OGC determined that (SSR) 17-1p applies to determinations or decisions materially affected by the Court’s decision in the following court cases:

• United States v. Windsor, 133 S. Ct. 2675 (2013). The Supreme Court held that section 3 of the Defense of Marriage Act (DOMA), which defined marriage for Federal benefit purposes as a union between a man and a woman, was unconstitutional. As a result, DOMA no longer prohibited the agency from recognizing a valid same-sex marriage for purposes of determining entitlement to or eligibility for benefits in States that recognize same sex marriages. 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.

• Obergefell v. Hodges, 135 S. Ct. 2584 (2015). The Supreme Court held that same-sex couples have a constitutional right to marry in, and have their valid marriages recognized by, all States. As a result, the agency can recognize all valid same-sex marriages. 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 at the time State law prohibited such recognition; and

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

If you are unsure if one of the listed Supreme Court cases covers a claimant’s case, please refer the claimant’s case to OGC for a legal opinion.

If you believe that it may be appropriate, based on your review of a claimant’s case or based on a request from a claimant, beneficiary, or recipient or his or her representative, to reopen a determination or decision due to a law that the Supreme Court of the United States later found unconstitutional, and the Supreme Court case is not included in the case list above, you must obtain an OGC opinion on whether (SSR) 17-1p applies to the relevant Supreme Court case before proceeding.

B. When SSA can reopen a Title II determination or decision

A Title II determination or decision in which there was an error on the face of the evidence may be reopened within four years of the date of the initial determination notice if such determination was favorable to the claimant, or at any time if it was fully or partially unfavorable to the claimant (see GN 04020.080).

EXAMPLE:  Two different number holders filed for retirement insurance benefits on 12/10/86, electing benefits at age 62. Both submitted birth records recorded before age five, which established the same 03/01/25 date of birth (DOB). Therefore, the correct date of entitlement (DOE) would be 03/87 because the DOB is the first day of the month. However, in one case, the claims representative (CR) or claims authorizer (CA) incorrectly established the DOE as 02/87. In the other case, the CR or CA incorrectly established the DOE as 04/87. In both cases, it is unmistakably clear that the determinations are incorrect.

You can reopen the favorable (to the claimant) determination (DOE 02/87) within the four-year period.

You can reopen the unfavorable determination (DOE 04/87) at any time.

C. What is not an error on the face of the evidence

Do not reopen a determination or decision, which was reasonable based on the evidence in the file and on the statute, regulations, instructions, precedents, etc., existing at the time we made the determination or decision, merely for the following reasons:

• There is a shift in the weight of the evidence; or

• A different inference is now drawn from the evidence; or

• The statue or regulations were amended, unless the amendment specifically provides for reopening. (For effect of statutory change, see GN 04001.110); or

• We can now apply a different rule of law. (NOTE: If we applied a law that the Supreme Court of the United States later found unconstitutional, and application of that law was material to our determination or decision, see GN 04010.020A.)

There is no error on the face of the evidence on which we based the determination or decision (i.e., the “record”) that permits reopening in GN 04010.020C in this section.

D. SSA/IRS Reconciliation cases

Additional guidance applies when reopening SSA/IRS Reconciliation cases for an error on the face of the evidence.

1. Expanded scope of error on the face of the evidence

In SSA/IRS Reconciliation cases only, we expanded the scope of error on the face of the evidence to mean the earnings, which SSA should have had in its possession, needed to reopen the claim and increase the beneficiary's benefits retroactively. Therefore, if a beneficiary's SSA earnings record contains an error because of a disparity between IRS and SSA records, that beneficiary is entitled to correction of his or her earnings record, reopening of the claim and payment of retroactive benefits regardless of the amount of time that elapsed since the year(s) the claimant earned the wages.

2. Case involves both SSA/IRS Reconciliation and other Automatic Earnings Reappraisal Operation (AERO) action

In an SSA/IRS Reconciliation case, there may be other AERO adjustments, which are separate from the SSA/IRS Reconciliation action. For example, one year of earnings may increase due to a Reconciliation action and another year may increase due to another AERO operation. Apply the rules in this section to the SSA/IRS Reconciliation year(s) and apply the rules to the non-SSA/IRS Reconciliation year(s) in GN 04010.030D.

If you are unable to determine for certain, assume all years are SSA/IRS Reconciliation years.

3. Work deductions

If the case involves work deductions, follow the normal rules to impose work deductions or to reopen and revise a previous work deduction determination.

4. Prior adjudication

Reprocess cases that we previously processed in a manner inconsistent with the guidelines in this section.

5. Example of an SSA/IRS Reconciliation due to an AERO

Due to a special AERO run for SSA/IRS Reconciliation cases on August 9, 1989, a case excepts for manual processing. Earnings for 1979 are in question because they do not agree with the earnings posted for 1979 when we processed the initial determination in 1982. The adjudicator does not have to develop to see if SSA received the additional earnings within four years because this is a Reconciliation case. The adjudicator can find error on the face of the evidence and reopen the claim to increase the benefits retroactively on the basis that SSA should have had the evidence in its possession within four years.