SSR 17-1p: Titles II and XVI: Reopening Based on Error on the Face of the Evidence — Effect of a Decision By the Supreme Court of the United States Finding a Law That We Applied to Be Unconstitutional

FederalRulings

Ask Donna

How this section applies to your facts.

Social Security Rulings › OASI › Evidence, Procedure, and Certification for Payment › SSR 17-1p

This text was captured on Aug 14, 2026. It is a snapshot, not a live feed, so check the official code before relying on it.

Text

Effective Date: March 1, 2017 Federal

Policy Interpretation Ruling

Social Security Ruling

PURPOSE: In recent years, we have received a number of questions

regarding how our reopening rules should be applied when we applied a

Federal or State law in making our determination or decision, and the

Supreme Court of the United States later determines that the law we

applied is unconstitutional. The issue has arisen most recently in light

of the Supreme Court's decisions regarding the constitutionality of the

Defense of Marriage Act in United States v. Windsor, 133 S. Ct. 2675

(2013) and the constitutionality of State law bans on same-sex marriage

in Obergefell v. Hodges, 135 S. Ct. 2584 (2015). We are issuing this SSR

to explain our policy on reopening a determination or decision due to an

error on the face of the evidence when, in making that determination or

decision, we applied a Federal or State law that the Supreme Court of the

United States later determines to be unconstitutional, and we find that

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

CITATIONS: Sections 702(a)(5) of the Social Security Act, as amended; 20 CFR 404.988 , 404.989 , 416.1488 , 416.1489 .

BACKGROUND: Generally, if a claimant is dissatisfied with a

determination or decision made in the administrative review process,

but does not request further review within the stated time period, he or

she loses the right to further review and that determination or decision

becomes final. [1] However, under our rules of administrative finality,

in limited circumstances, either on our own initiative or at the request

of a party, we may reopen and revise a determination or decision that is

otherwise final. [2] Our regulations set out the grounds for reopening and

the timeframes for doing so

she loses the right to further review and that determination or decision

becomes final. [1] However, under our rules of administrative finality,

in limited circumstances, either on our own initiative or at the request

of a party, we may reopen and revise a determination or decision that is

otherwise final. [2] Our regulations set out the grounds for reopening and

the timeframes for doing so. In many cases, we may reopen and revise

a determination or decision only within specified time limits for “good

cause.” [3] In other cases, there are no regulatory time limits for

reopening. [4] Under our regulations, we may find “good

cause” to reopen in part when we find that there is an error on

the face of the evidence, as described in the relevant

regulations. [5]

Our regulations do not further specify what constitutes grounds

for reopening a determination or decision based on an “error

on the face of the evidence.” Under our longstanding policy,

a legal error may constitute an error on the face of the

evidence. [6] However, our regulations also explain that we will not find “good

cause” to reopen a prior determination or decision based solely

on a “change of legal interpretation or administrative ruling upon

which the determination or decision was

made.” [7]

In recent years, we have received questions about whether and how we

may apply our reopening rules when we made a determination or decision

by applying a Federal or State law that the Supreme Court of the United

States later determines to be unconstitutional. We are issuing this SSR to

explain how we interpret the reopening rules in this specific situation

to ensure that our adjudicators interpret and apply our reopening rules

correctly and consistently.

w we

may apply our reopening rules when we made a determination or decision

by applying a Federal or State law that the Supreme Court of the United

States later determines to be unconstitutional. We are issuing this SSR to

explain how we interpret the reopening rules in this specific situation

to ensure that our adjudicators interpret and apply our reopening rules

correctly and consistently.

POLICY INTERPRETATION: When we make a determination or decision

by applying a Federal or State law that the Supreme Court of the

United States later determines to be unconstitutional, and we find

that application of that law was

material [8] to our determination or decision, we may reopen the determination or

decision within the time frames specified in our regulations based on

an error on the face of the evidence under 20 CFR 404.988(b) , 404.988(c)(8) , 404.989(a)(3) , 416.1488(b) , and 416.1489(a)(3) .

In this specific situation, we do

not consider a holding by the Supreme Court that a Federal or State

law is unconstitutional to be a “change of legal interpretation

or administrative ruling upon which the determination or decision was

made,” as contemplated in 20 CFR 404.989(b) and 416.1489(b) .

Under our policy, the rules governing a change in legal interpretation

apply when a policy or legal precedent that we previously adhered to

in the adjudication of cases, which was correct and reasonable when

made, is changed as a result of subsequent court decisions or other

applicable legal precedents or new policy

considerations. [9] When we have made a determination or decision by applying a Federal or

State law that the Supreme Court of the United States later determines

to be unconstitutional, the application of that law would not have been

correct and reasonable when made. Consequently, we do not interpret the

change in legal interpretation criteria in our rules to prevent us from

applying our reopening rules in that specific situation

a determination or decision by applying a Federal or

State law that the Supreme Court of the United States later determines

to be unconstitutional, the application of that law would not have been

correct and reasonable when made. Consequently, we do not interpret the

change in legal interpretation criteria in our rules to prevent us from

applying our reopening rules in that specific situation. Accordingly,

we may reopen a determination or decision based on an error on the face

of the evidence in the limited circumstance where all of the following

criteria are met: 1) we made our determination or decision by applying

a Federal or State law that the Supreme Court of the United States later

determines to be unconstitutional; 2) we find that the application of that

law was material to our determination or decision; and 3) we reopen and

revise the determination or decision within the following time frames:

- For claims under title II of the Social Security Act (Act),

within four years of the notice of the initial determination, for good

cause, under 20 CFR 404.988(b) , 404.989(a)(3) ;

- For claims under title II of the Act, at any time, if the

determination or decision was fully or partially unfavorable, under 20 CFR 404.988(c)(8) ; and

- For claims under title XVI of the Act, within two years of the

notice of the initial determination, for good cause, under 20 CFR 416.1488(b) , 416.1489(a)(3) .

For claims under title II of the Social Security Act (Act),

within four years of the notice of the initial determination, for good

cause, under 20 CFR 404.988(b) , 404.989(a)(3) ;

For claims under title II of the Act, at any time, if the

determination or decision was fully or partially unfavorable, under 20 CFR 404.988(c)(8) ; and

For claims under title XVI of the Act, within two years of the

notice of the initial determination, for good cause, under 20 CFR 416.1488(b) , 416.1489(a)(3) .

initial determination, for good

cause, under 20 CFR 404.988(b) , 404.989(a)(3) ;

For claims under title II of the Act, at any time, if the

determination or decision was fully or partially unfavorable, under 20 CFR 404.988(c)(8) ; and

For claims under title XVI of the Act, within two years of the

notice of the initial determination, for good cause, under 20 CFR 416.1488(b) , 416.1489(a)(3) .

CROSS REFERENCES: Social Security Ruling 85-6c ;

Program Operations Manual System GN 04001.100A, GN 04010.020, GN 04020.080.

[1] 20 CFR 404.987(a) , 416.1487(a) .

[2] 20 CFR 404.987(b) , 416.1487(b) .

[3] See e.g., 20 CFR 404.988(b) , 416.1488(b) .

[4] 20 CFR 404.988(c)(8) (Under title II, we may reopen a determination

or decision at any time if it was fully or partially unfavorable to a

party to correct “an error that appears on the face of the evidence

that was considered when the determination or decision was made.”) [5] 20 CFR 404.989(a)(3) (Under title II, we may reopen a determination

or decision for good cause within four years of the date of the notice

of initial determination when the “evidence that was considered in

making the determination or decision clearly shows on its face that an

error was made.”), 416.1489(a)(3) (Under title XVI, we may reopen

a determination or decision for good cause within two years of the date

of the notice of initial determination when the &ldquo.evidence that was

considered in making the determination or decision clearly shows on its

face that an error was made.”) [6] Social Security Ruling 85-6c ( https://www.ssa.gov/OP_Home/rulings/di/05/SSR85-06-di-05.html ). [7] 20 CFR 404.989(b) , 416.1489(b)

may reopen

a determination or decision for good cause within two years of the date

of the notice of initial determination when the &ldquo.evidence that was

considered in making the determination or decision clearly shows on its

face that an error was made.”) [6] Social Security Ruling 85-6c ( https://www.ssa.gov/OP_Home/rulings/di/05/SSR85-06-di-05.html ). [7] 20 CFR 404.989(b) , 416.1489(b) . [8] For purposes of this Ruling, this type of error on the face of

the evidence is “material” to our determination or decision

when our application of a Federal or State law that the Supreme Court

of the United States later determines to be unconstitutional affected

the individual's entitlement to title II benefits, the individual's

eligibility for title XVI payments, or the amount of the individual's

title II benefits or title XVI payments. [9] See Program Operations Manual System

GN 04001.100A

( https://secure.ssa.gov/apps10/poms.nsf/lnx/0204001100 ).

[5] 20 CFR 404.989(a)(3) (Under title II, we may reopen a determination