If you do not meet the deadline for appealing a denial of your Social Security disability claim, you may ask that the Social Security Administration (SSA) extend the deadline by finding that there was good cause for missing the deadline. To do so, include with your appeal a detailed letter explaining why the request for review of the determination or decision was untimely. Depending on the circumstances, an affidavit from you may be necessary. If SSA finds “good cause” for the delay in appealing, it will extend the time limit. 20 C.F.R. §§ 404.909(b), 404.933(c), 404.968(b).
POMS GN 03101.020 A.1. provides: “An individual from the component that has the authority to adjudicate the appeal being filed determines whether ‘good cause’ exists.” Thus, an administrative law judge (ALJ) will determine good cause if the Request for Hearing is late; the Appeals Council will determine good cause if the Request for Review of Hearing Decision is late. The Appeals Council will also determine good cause to extend the deadline to file in federal court.
“Good cause” for missing a deadline for requesting review is described in 20 C.F.R. § 404.911. According to that regulation, SSA will consider circumstances preventing a timely appeal, whether any SSA action misled the claimant and whether the claimant failed to understand the requirement of timely appeal. 20 C.F.R. § 404.911(a)(1)-(3). 20 C.F.R. § 404.911(a)(4) provides that SSA will consider:
Whether you had any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) which prevented you from filing a timely request or from understanding or knowing about the need to file a timely request for review.
Social Security Ruling 91-5p expands on 20 C.F.R. § 404.911(a)(4). The ruling provides that if a 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,” and the claimant shows that mental incapacity prevented the claimant from timely appealing, “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.” According to the ruling, the evidence must show that the claimant lacked the mental capacity to understand the procedures for requesting review. Reasonable doubt is to be resolved in favor of the claimant.
Examples of Good Cause
20 C.F.R. § 404.911(b) provides nine examples of good cause for missing a deadline:
(b) Examples of circumstances where good cause may exist include, but are not limited to, the following situations:
(1) You were seriously ill and were prevented from contacting us in person, in writing, or through a friend, relative, or other person. (2) There was a death or serious illness in your immediate family. (3) Important records were destroyed or damaged by fire or other accidental cause. (4) You were trying very hard to find necessary information to support your claim but did not find the information within the stated time periods. (5) You asked us for additional information explaining our action within the time limit, and within 60 days of receiving the explanation you requested reconsideration or a hearing, or within 30 days of receiving the explanation you requested Appeal Council review or filed a civil suit. (6) We gave you incorrect or incomplete information about when and how to request administrative review or to file a civil suit. (7) You did not receive notice of the determination or decision. (8) You sent the request to another Government agency in good faith within the time limit and the request did not reach us until after the time period had expired. (9) Unusual or unavoidable circumstances exist, including the circumstances described in paragraph (a)(4) of this section, which show that you could not have known of the need to file timely, or which prevented you from filing timely.
Example 7 presents the common situation where a claimant says he or she did not receive the determination or decision. To prevail on this issue, as a rule, you need more than simply an allegation. 20 C.F.R. § 404.901 provides, “Date you receive notice means 5 days after the date on the notice, unless you show us that you did not receive it within the 5-day period.” POMS GN 03101.020 A.4.h. provides these examples: “e.g., SSA used incorrect address or claimant moved.”
Another common situation occurs when the claimant was confused by information given by SSA. This allegation not only raises the issue of the claimant’s mental status but also the quality of the information given by SSA. The POMS makes it clear that information from SSA need not be incorrect or incomplete. If the information was confusing, it could form the basis for an argument that there is good cause for missing the deadline. POMS GN 03101.020 A.4.f.
A situation that comes up from time to time is where a claimant thinks that his or her representative filed the appeal. The POMS provides a basis for extending the deadline in this situation. POMS GN 03101.020 A.4., which includes all the examples from 20 C.F.R. § 404.911(b), provides this additional example:
j. the claimant thought his/her representative had filed the appeal (good cause applies to the claimant despite whether the claimant is still represented or represented by a different person);
If SSA refuses to extend the deadline, the late appeal may be treated as a protective filing for a new application. POMS GN 03101.020 A.2 and GN 03102.150 A.1.
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