SSR No. 91-5

SOCIAL SECURITY ADMINISTRATION

POLICY INTERPRETATION RULING

Titles II and XVI: Mental Incapacity and Good Cause for Missing the Deadline to Request Review

PURPOSE: The purpose of this interpretative ruling is to clarify our policy on establishing good cause for missing the deadline to request review. It is being issued to avoid the improper application of res judicata or administrative finality when the evidence establishes that a claimant lacked the mental capacity to understand the procedures for requesting review.

CITATIONS (AUTHORITY): Sections 205(b) and 1631(c) of the Social Security Act, as amended; Regulations No. 4, sections 404.903(j), 404.909(b), 404.911, 404.925(c), 404.933(c), 404.957(c)(3), 404.968(b), 404.982; and Regulations No. 16, sections 416.1403(a)(8), 416.1409(b), 416.1411, 416.1425(c), 416.1433(c), 416.1457(c)(3), 416.1468(b), and 416.1482.

PERTINENT HISTORY: Our rules in 20 CFR, sections 404.909(a), 404.933(b), 404.968(a), 404.982, 416.1409(a), 416.1433(b), 416.1468(a), and 416.1482, respectively, provide that a request for reconsideration, hearing before an administrative law judge (ALJ), review by the Appeals Council, or review by a Federal district court must be filed within 60 days after the date of receipt by the claimant of the notice of the determination or decision being appealed. However, the regulations also provide that a claimant can request that the 60-day time period for filing a request for review be extended if the claimant can show good cause for missing the deadline. The request for an extension of time must be in writing and must give the reasons why the request for review was not filed timely.

When the claimant fails to timely request reconsideration, an ALJ hearing, Appeals Council review, or review by a Federal district court, the Agency applies the criteria in section 404.911 or section 416.1411, as appropriate, in determining whether good cause for missing the deadline exists.

Section 404.911(a) states:

In determining whether you have shown that you had good cause for missing a deadline to request review we consider

(1) what circumstances kept you from making the request on time;

(2) whether our action misled you;

(3) whether you did not understand the requirements of the Act resulting from amendments to the Act, other legislation, or court decisions.

Section 416.1411(a) sets out essentially the same language.

If the claimant establishes good cause for missing the deadline to request review, we process the request for review in accordance with established procedures and the prior administrative action is not final or binding for purposes of applying the rules on either res judicata or administrative finality.

The rules on administrative finality (20 CFR, sections 404.987, 404.988, 404.989, 416.1487, 416.1488, 416.1489) provide that a final determination or decision cannot be reopened more than 4 years (2 years for supplemental security income cases) from the date of the notice of the initial determination on the claim unless one of the specified conditions in section 404.988(c) or section 416.1488(c) applies.

Similarly, the rules in 20 CFR, sections 404.957(c)(1) and 416.1457(c)(1) indicate that an ALJ may apply res judicata to dismiss a hearing request in cases where a previous determination or decision on a claim, involving the same facts and the same issues, has become final. A determination or decision becomes final for purposes of the application of res judicata, when the claimant fails to file a request for reconsideration, or a hearing before an ALJ, or review by the Appeals Council, or judicial review, whichever is appropriate, within the time periods provided by the regulations. If the claimant establishes good cause for missing the deadline to seek judicial review of an Appeals Council's decision or denial of review or expedited appeals process agreement, the time period will be extended.

POLICY INTERPRETATION: It has always been SSA policy that failure to meet the time limits for requesting review is not automatic grounds for dismissing the appeal and that proper consideration will be given to a claimant who presents evidence that mental incapacity may have prevented him or her from understanding the review process.

When a claimant presents evidence that mental incapacity prevented him or her from timely requesting review of an adverse determination, decision, dismissal, or review by a Federal district court, and the claimant had no one legally responsible for prosecuting the claim (e.g., a parent of a claimant who is a minor, legal guardian, attorney, or other legal representative) at the time of the prior administrative action, SSA will determine whether or not good cause exists for extending the time to request review. If the claimant satisfies the substantive criteria, the time limits in the reopening regulations do not apply; so that, regardless of how much time has passed since the prior administrative action, the claimant can establish good cause for extending the deadline to request review of that action.

The claimant will have established mental incapacity for the purpose of establishing good cause when the evidence establishes that he or she lacked the mental capacity to understand the procedures for requesting review.

In determining whether a claimant lacked the mental capacity to understand the procedures for requesting review, the adjudicator must consider the following factors as they existed at the time of the prior administrative action:

-- inability to read or write;

-- lack of facility with the English language;

-- limited education;

-- any mental or physical condition which limits the claimant's ability to do things for him/herself.

If the claimant is unrepresented and has one of the factors listed above, the adjudicator will assist the claimant in obtaining any relevant evidence. The decision as to what constitutes mental incapacity must be based on all the pertinent facts in a particular case. The adjudicator will resolve any reasonable doubt in favor of the claimant

If the adjudicator determines good cause exists, he or she will extend the time for requesting review and take the action which would have been appropriate had the claimant filed a timely request for review. A finding of good cause will result either in a determination or decision that is subject to further administrative or judicial review of the claim, or a dismissal (for a reason other than late filing) of the request for review, as appropriate.

If the adjudicator determines good cause does not exist to extend the time, the adjudicator will consider the claimant to have filed an untimely request for review, deny the request to extend the time for filing, and dismiss the request. The dismissal of the request for review will state the adjudicator's rationale for not finding good cause and advise the claimant that he or she can file a new application and use the written request for review as a protective filing date.

EFFECTIVE DATE: The right to establish good cause for missing the deadline to request review is a longstanding SSA policy. SSA will apply this policy to any case brought to its attention.

EXCEPTION: In addition to this Ruling, Acquiescence Ruling AR 90-4(4), which implements the Culbertson and Young cases, must be followed when adjudicating such cases arising in the Fourth Circuit.

CROSS-REFERENCE: Program Operations Manual System, Part 2, Chapter 031, Subchapter 01; Acquiescence Ruling AR 90-4(4).