TN 4 (09-92)

A. Definition

New and material evidence is any evidence which:

• Was not a part of the claims, disability or earnings discrepancy file when the final determination or decision was made; but

• Relates back to the date of the original determination or decision; and

• Shows facts that would result in a conclusion different from that originally reached had the new evidence been introduced or available at the time of the original determination.

B. Policy — When to reopen based on new and material evidence

A final determination or decision may be reopened within 4 years of the notice of the initial determination on the basis of new and material evidence even though the determination or decision, when made, was reasonable based on the evidence then in file. (See GN 04030.010 and GN 04030.050E. for special situations involving new and material evidence received after 4 years.)

C. Policy—What is new and material evidence

Evidence submitted could be “new” but not “material.”

“New” evidence may be submitted within 4 years which justifies further development.

The further development could uncover “material” evidence either within the 4 years or after the 4 years.

If the “new” evidence was received within 4 years, we can reopen regardless of when the development of the “material” evidence is completed if reopening is favorable to the claimant.

If reopening is unfavorable to the claimant, we can reopen only if an affirmative action in writing (see GN 04001.050) was taken by the appropriate person in SSA (see GN 04001.020) on the “new” evidence within the 4 years.

NOTE:  See GN 04001.060 regarding diligent pursuit.

It is possible for the new and material evidence to have been created after the original determination was made.

EXAMPLE 1:  A child is entitled as the illegitimate child of the NH based on a court order. Within 4 years of the date of the notice of the initial determination, we receive a revised court order which shows the child is not the child of the NH and we take an affirmative action in writing questioning the correctness of the determination awarding benefits. We can reopen and revise based on the revised court order even though it came into existence after the initial determination. This is not the same as reopening a correct determination, which is discussed in GN 04001.070, since the revised court order renders the initial determination incorrect.

EXAMPLE 2: A child who was born during the NH's marriage to the child's biological mother and whose birth certificate shows the NH as the child's father is determined entitled as the natural legitimate child of the NH in 03/1996. The notice of the initial determination awarding child's benefits is issued on 03/28/1996. In a telephone call to the local FO in 08/1996, the NH alleges that the child is not his, but does not provide any information to support his allegation. The NH states that he is filing suit to disavow the child as his own. In 03/2001, the NH brings in evidence which establishes that the child would not be considered the natural legitimate child of the NH for purposes of intestate succession under the applicable State law. Specifically, the evidence consists of: (1) authenticated DNA testing dated 10/09/1997 which excludes the NH as the child's biological father and (2) a State court decision dated 10/28/1997 which decreed that the NH is not the child's natural father based on the DNA test results, and which meets the criteria of SSR 83-37c (the Gray v. Richardson case). The evidence rebuts the presumption of legitimacy under applicable State law. However, even though we have new and material evidence that the child is not the NH's, we cannot reopen and revise the determination awarding benefits because no affirmative action in writing was established and the evidence was not received from the NH within four years of the date of the notice of the initial determination. Therefore, the child remains entitled to benefits.

NOTE: In Example 2, if the NH had submitted the DNA testing and State court decision to us within four years of the date of the notice of the initial determination and we had taken an affirmative action in writing questioning the determination within the 4-year period, we could reopen and revise the determination based on new and material evidence. Alternatively, if SSA determined that fraud or similar fault was involved, we could reopen at any time.

D. Policy — When to reopen based on additional earnings

1. General

In cases other than SSA/IRS Reconciliation cases, when additional earnings for prior years already considered in the initial computation or recomputation appear on the earnings record, e.g., AERO cases, more than 4 years after the date of the initial determination, apply the assumptions in SM 04610.013 A. and SM 04610.086 C. to determine if you have to develop before you can reopen and increase the benefit amount.

2. No development necessary

If it is not necessary to develop, assume that SSA received the evidence of additional earnings within 4 years.

3. Development necessary

If you develop, assume the earnings were received by SSA within the 4 years unless the development shows they were received after the 4 years. (If it is necessary to develop and the fifth and sixth digits of the control number on the DEQY are any number other than “20”, the case is not an SSA/ IRS Reconciliation case. If the fifth and sixth digits are  “20”, the case may be an SSA/IRS Reconciliation case and should be processed according to GN 04010.020 D.)

4. References

If case involves both SSA/IRS Reconciliation and other AERO action, if work deductions are involved, or if case was previously processed using different guidelines, follow the instructions in GN 04010.020 D. above.

5. Example

NH is entitled to A benefits 10/74 based on initial determination dated 8/ 74. AERO dated 11/25/75 increased PIA effective 1/75 based on 1974 wages of $7,203.41 for the last 3 quarters. NH dies 10/78. When D1 files in 1989, the MBR PIA and FCER PIA do not agree. FCER shows 1974 wages of $9,507.38 with 4 QCs. DEQY shows $2,303.97 for the 3/74 quarter was posted in 2/80 from the suspense file (more than 4 years after date of initial determination of 11 /25/75, but we do not know when prior to 2/80 we actually received them). Based on assumptions in SM 04610.013 A. and SM 04610.086 C., adjudicator does not have to develop to OCRO to see when SSA actually received the evidence. Adjudicator can assume SSA received wages for 3/74 quarter within 4 years, reopen and create an underpayment to deceased NH.

E. Policy — When not to reopen based on new and material evidence

A written request received from the claimant within 4 years does not constitute new and material evidence for reopening unless it indicates that there is a basis for disagreement. The supporting evidence need not necessarily accompany the written request. The decision could be reopened if evidence which is later presented or uncovered as a result of additional development meets the definition of “new” and “material” as explained above.