SSR On Application Of Supreme Court Rulings On Constitutionality

     From Social Security Ruling 17-1p, to be published in the Federal Register tomorrow (footnote omitted):

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. ...

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 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). ...

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. 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). ...