# SSR 17-1p: 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

> Federal · Rulings · In force

URL: https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_17_1p

## Section

- **Citation:** SSR 17-1p
- **Heading:** 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
- **Jurisdiction:** Federal
- **Kind:** Rulings
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Social Security Rulings / OASI / Evidence, Procedure, and Certification for Payment / SSR 17-1p

## Text

Effective Date: March 1, 2017 Federal
Register Vol. 82, No. 39, page 12270

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
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 ).

[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 ).

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