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Office of Disability Adjudication and Review

Volume I

Transmittal No. I-5-1-19 (Revised)

Division 5: Temporary Instructions

Subject: Processing Appeals Involving Same-Sex Marriages (United States v. Windsor)


This transmittal revises and expands the Hearings, Appeals and Litigation Law (HALLEX) manual Temporary Instruction (TI) I-5-1-19, titled Processing Appeals Involving Same-Sex Marriages (United States v. Windsor), in HALLEX Division 5, Chapter 1, General Subjects. We have expanded the TI to include instructions for processing certain claims for surviving spouse benefits, the lump-sum death payment (LSDP), and supplemental security income (SSI).

Explanation of Content and Changes

I. Purpose

We included non-marital legal relationships in this introduction and made an editorial change. We also specify that the instructions in the TI are not to be applied when a same-sex marriage or non-marital legal relationship is not material to the decision.

II. Background

We made editorial changes to the opening background statement.

III. Definitions (Formerly, Case Processing)

We relocated Case Processing to section V. In Definitions, we define the terms “State” and “domicile.” Although “domicile” does not appear again in the TI, the term appears in Program Operations Manual System (POMS) instructions to which we refer.

IV. Referrals for a Legal Opinion (Formerly, Hold Cases)

We relocated Hold Cases to section VI, now titled Case Holding and Procedures. In Referrals for a Legal Opinion, we explain the possible need for a legal opinion from the Office of the Regional Chief Counsel and provide guidance for obtaining a legal opinion when one has not been included in the documentation provided the hearing office or the Appeals Council (AC).

V. Case Processing (Formerly, Inquiries)

We relocated Inquiries to section VII. Case Processing has been expanded to include instructions for processing additional claims types. In the introduction, we added a NOTE to emphasize that the case processing instructions are not to be applied when a same-sex marriage or non-marital legal relationship is not material to the decision.

Given the expansion of claims types the Office of Disability Adjudication and Review will consider, we have changed the organization and content.

  • For example, instructions for processing aged spouse claims involving same-sex marriages or non-marital legal relationships that are material to the decision are now included in V.A. The claims types for aged spouse benefits are now identified in V.A.1., rather than A. Processing considerations appear in V.A.2., and aged spouse claims to hold appear in V.A.3. We use the same or a similar pattern for the new entries: certain claims for surviving spouse benefits (in new V.B.), the LSDP (in new V.C.), and SSI (in new V.D.).

  • Rather than identifying the required characteristics for each claims type, we identify the POMS instruction applicable to the claim type (e.g., in V.A.1.). In the “Processing Considerations” category, we identify the POMS instruction(s) that provide policy and applicable practices (e.g., in V.A.2.). We also refer to relevant regulations and identify exceptions that arise in cases involving a same-sex marriage or non- marital legal relationship.

VI. Case Holding and Procedures

Case Holding and Procedures includes information formerly in section IV., then titled Hold Cases, regarding holding cases at the hearing level and the AC level. Information as to holding specific types of cases has been shifted to section V., Case Processing, specifically V.A.3., V.B.3., V.C.3., and V.D.4.

We relocated the information formerly in the NOTE in A.6. to the second paragraph in VI, and we expanded the content.

We did not transfer the Medicare Part D Subsidy Appeals Unit entry formerly in section IV., Hold Cases. New POMS section GN 00210.715 explains that SSA will process all low-income subsidy (LIS) applications following current instructions in HI 03010.038C. SSA will accept all allegations of marital status; the gender of the married individuals is not a factor for LIS.

VII. Inquiries

Inquiries formerly appeared in section V. In subsection VII.A., Public Inquiries, we revised the first sentence to clarify that we may reply to an inquiry from the claimant or his or her appointed representative as to the status of a hearing request or request for AC review to the extent possible using the information in the TI. In subsection B., Technical Issues, we made a minor editorial change in the first sentence.

Date: July 29, 2014