TN 17 (09-93)

A. Definitions

1. Probative Value

The likelihood of proving or establishing a fact.

2. Primary Evidence

Evidence with the highest probative value that can stand alone in establishing a fact.

3. Secondary Evidence

Evidence with less probative value than primary evidence that generally needs corroboration from another piece of secondary evidence because of its lesser probative value. There are 2 types:

• preferred; and

• evidence of low probative value.

4. Corroborative Evidence

Evidence that agrees with, at least in part, and does not contradict, in any part, other evidence.

5. Earnings Records (E/R)

E/R is a broad term that applies to all earnings records data bases maintained by SSA, including the Master Earnings File (MEF) and other earnings files.

6. Authorized SSA Employee

An SSA employee authorized to certify, analyze and evaluate wage evidence.

NOTE:  This definition is only applicable to coverage and wage subchapters.

B. Policy — Authority

1. Authority

The Secretary of Health and Human Services has full power and authority to make rules and regulations to establish procedures providing for:

1. the extent of the proofs and evidence needed to establish what earnings are wages and tips for Social Security purposes; and

2. the amounts of such wages and tips that are to be posted to E/R's.

2. Presumption

1. It is presumed that an individual's E/R being maintained by SSA is correct as posted.

2. This presumption also applies to the absence of postings, i.e., the absence of postings is evidence that no wages or tips were paid.

3. Correction

There are certain circumstances under which the presumption that the E/R is correct may be overcome.

4. Sufficiency

The Secretary has full authority to determine what evidence is sufficient to overcome the presumption of correctness and may subpoena evidence and/or testimony when necessary.

C. Policy — Evidence

1. General

Evidence policy and procedure (see D. below) applies to preclaims and claims, lag and prelag, and correction/adjustment situations.

2. Evidence of Wages Paid After 1936

1. SSA E/R's (see A.5. above).

2. extracts of these E/R's (e.g., Summary Earnings Query (SEQY));

3. certifications of these E/R's (e.g., Full Claims Certified Earnings Record (FCER));

4. notifications of wage determinations (e.g., Form SSA-L573 Social Security Earnings Determination);

5. other primary evidence, not defined above (see RS 01403.010 ff.); and

6. secondary evidence (see RS 01403.050 ff.).

3. When Additional Evidence May be Required

1. earnings are posted to the wrong person's E/R (see RM 03870.001 ff.); or

2. there is a question as to whether the earnings are wages or self-employment (see RS 01801.001 ff.); or

3. for any other reason further development is appropriate (e.g., constructive payment of wages is alleged—see RS 01401.030-RS 01401.050).

4. Overcoming Presumption of Correctness for Posted Earnings EARNINGS

1. If it is known that primary evidence was used to establish a wage record, generally only another piece of primary evidence or two pieces of corroborative preferred secondary evidence may overcome the presumption of correctness.

2. Such evidence must convince the authorized SSA employee that the previous wage record is incorrect.

3. If the type of evidence used to establish the wage record is not known, follow the sequential development in D.1. below.

D. Procedure

1. Sequential Development

Develop evidence of wages (tips) in the following sequence (except as directed in C.3. above). Evidentiary evaluation (i.e., assessing the probative value) must take place for each piece of evidence regardless of the “number” of pieces of evidence obtained.

E. Policy - Final Development

1. Subpoena Power

1. SSA may invoke its subpoena power where there is no primary or secondary evidence to substantiate the individual's allegations when:

   • wage/tips evidence is alleged to be in an employer's possession; and

   • the employer either refuses to cooperate or fails to acknowledge a second request from SSA (see RS 01403.035C.3.).

2. The decision to subpoena will be made by SSA in consultation with the Office of General Counsel, HHS.

3. See RS 01403.080 for submittals regarding possible subpoena use.

2. Document

1. SSA must retain original, signed documents for 5 years after the date the document was signed.

2. The retention period of 5 years is sufficient for possible criminal prosecution under current law.

3. When the contents of an original, signed statement are transferred to an electronic record, the original statement must still be retained for 5 years.

3. Destruction

1. All non-signature (i.e., not documents as in 3. above) documents not being returned to the individual, may be destroyed after the appeals period has transpired after all necessary information has been extracted for SSA use and possible redevelopment, if there have been no appeals.

EXCEPTION: Do not make or retain copies of Forms W-2/W-2c and Schedule SE used in lag situations, except as indicated in RS 01403.043C.3.

2. Further appeals extend destruction dates through these appeals periods.

4. Permission To Contact Third-Parties

1. As a courtesy to the individual, obtain his/her written consent to authorize contacts with third parties on his/her behalf.

2. This also applies to an individual's authorized representative or to his/her survivor.

3. Do not make any contacts without this consent, since some individuals do not want their employer informed of the claim.