Options for Late Appeals - SSI Overpayments Lawyer Manual

Options for Late Appeals

What to Do if Your Client is Past the Appeal Deadline

Missing the 60-day appeals deadline does not necessarily end the case for the beneficiary. There are two options for getting the case back on track: 1) showing good cause for filing late, and 2) having the claim reopened.

Filing Late with Good Cause

SSA will accept a late filing of a Request for Reconsideration if good cause is shown. Requests for extension of time to file must be in writing, must give the reasons why the Request was not filed within the time limits, and be signed by the beneficiary. 20 C.F.R. §§ 404.909 (SSDI), 416.1409 (SSI); POMS GN 03101.020. For both SSI and SSDI beneficiaries, SSA will consider the following factors in deciding whether or not to accept the late filing:

• What circumstances kept the person from making the request on time;
• Whether SSA's actions misled them;
• Whether the person did not understand the requirements of the Act resulting from amendments to the Act, other legislation, or court decisions; and
• Whether the person has any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) which prevented them from filing a timely request or from understanding or knowing about the need to file a timely request for review. C.F.R. §§ 404.911(a) (SSDI), 416.1411(a) (SSI).

Examples of circumstances where good cause may exist can be found at C.F.R. §§ 404.911(b) (SSDI), 416.1411(b) (SSI)

There is no time limit for showing good cause for a late filing. The application should be submitted to an SSA district office. The SSA website has a list of the locations of District Offices by zip code.

Requesting to Reopen a Claim

If your client has missed the appeal deadline for reconsideration, your other option is to request the reopening of the claim. You can request a reopening of a claim for any reason as long as the request is filed within 12 months of the initial determination. C.F.R. §§ 404.987,404.988 (SSDI); 416.1487, 416.1488 (SSI). Reopening is up to the discretion of SSA so, while not necessarily required, such requests are stronger if they include a basis for the request.

Reopening after 12 months

If more than 12 months has passed since the initial determination, the claim may be reopened if good cause is shown. For both SSI and SSDI beneficiaries, good cause may be shown if:

• New and material evidence is furnished, POMS GN 04010.030;
• A clerical error was made, POMS 04010.010; or
• The evidence that was considered in making the determination or decision clearly shows on its face that an error was made, POMS 04010.020.

SSA will not find good cause if the only reason given is a change of legal interpretation or administrative ruling upon which the determination or decision was made. 20 C.F.R. §§ 404.989, 416.1489; POMS GN 04010.001.

While the standards for applying for reopening are the same between SSI and SSDI, there are some differences in the time lines for applying between the programs. For SSI, reopening may be applied for:

• Within 12 months of the date of the notice of the initial determination, for any reason;
• Within two years of the date of the notice of the initial determination if SSA finds good cause, as defined in § 416.1489, to reopen the case; or
• At any time if it was obtained by fraud or similar fault. In determining such, SSA will take into account any physical, mental, educational, or linguistic limitations the person may have had at the time. § 416.1488.

For SSDI, reopening may be applied for:

• Within 12 months of the date of the notice of the initial determination, for any reason;
• Within four years of the date of the notice of the initial determination if SSA finds good cause, as defined in § 404.989, to reopen the case; or
• At any time [if for a number of reasons including] . . . (8) It is wholly or partially unfavorable to a party, but only to correct the clerical error or an error that appears on the face of the evidence that was considered when the determination or decision was made . . . . 20 C.F.R. § 404.988; POMS GN 04001.010.

Choosing Between Reopening and Late Filing

Both requests for reopening and for showing good cause for late filing should be made in writing to a District Office and cite the controlling regulations and POMS sections. Choosing which method to use, however, may depend on the timing of your application. Consider the following time periods when deciding which to file:

• Within one year of the decision to be appealed: late filing is allowed only for a good cause while reopening can be made for any reason. Thus, cite both if available, and if there is not good cause as defined, use reopening.
• Within two years (for SSI) and four years (for SSDI): reopening or late filing can be used based on the good cause reasons listed above.
• Beyond two years (for SSI) and four years (for SSDI): the only option is late filing. However, it is unlikely that a request for late filing would be successful unless it can be shown that the claimant never received notice of the overpayment and there was no other way that they would have or should have known, or it is shown that the person lacks the capacity to understand what the notices meant.