or review or for commencing a civil action in a district court, although the time for filing such request or commencing such action (see §§ 404.918 and 404.946 and section 205 (g) of the Act) has passed. If an extension of the time fixed by § 404.918 for requesting a hearing before a hearing examiner is sought, the petition may be filed with a hearing examiner. In any other case, the petition shall be filed with the Appeals Council. The petition shall be in writing and shall state the reasons why the request or action was not filed within the required time. For good cause shown, a hearing examiner or the Appeals Council, as the case may be, may extend the time for filing such request or action. An extension, however, may not be granted where the sole purpose of the request is to seek revision of an individual's earnings record or a finding as to wages or self-employment income after revision is precluded by the provisions of section 205 (c) (4) or (5) of the Act (see §§ 404.804 and 404.806). Where a hearing examiner or the Appeals Council in a proper case has extended the time for filing such request or action, no revision of an individual's earnings record or of a finding as to wages or self-employment income may be made except as is otherwise provided in this Subpart J.

(b) Where civil action commenced against wrong defendant. If a party to a decision of the Appeals Council, or to a decision of the hearing examiner where the request for review of such decision is denied (see § 404.947), timely commences a civil action in a district court as provided by section 205 (g) of the act, but names as defendant the United States or any agency, officer, or employee thereof instead of the Secretary either by name or by official title, and causes process to be served in such action as required by the Federal Rules of Civil Procedure, the Social Security Administration shall mail to such party notice that he has named the incorrect defendant in such action; and the time within which such party may commence the civil action pursuant to section 205(g) against the Secretary shall be deemed to be extended to and including the 60th day following the date of mailing of such notice.

[29 F.R. 8209, June 30, 1964 as amended at 31 F.R. 16767, Dec. 31, 1966. Correction noted at 32 F.R. 75, Jan. 6 1967]

§ 404.955

Review by Appeals Council.

Where a hearing examiner has determined the matter of extending the time for filing such request (whether he has allowed or denied the request for such extension), the Appeals Council on its own motion may review such determination and either affirm or reverse it. In connection with this review, the Appeals Council may consider whatever additional evidence relevant to this request a party may wish to present.

§ 404.956 Revision for error or other reason; time limitation generally.

(a) Initial or reconsidered determination. Except as otherwise provided in §§ 404.960 and 404.960a, an initial or reconsidered determination (see §§ 404.905 and 404.914) may be revised by the appropriate unit of the Social Security Administration having jurisdiction over the proceedings (§ 404.902), on its own motion or upon the petition of any party for a reason, and within the time period, prescribed in § 404.957.

(b) Decision of a hearing examiner or the Appeals Council. Either upon the motion of the hearing examiner or the Appeals Council, as the case may be, or upon the petition of any party to a hearing, except as otherwise provided in §§ 404.960 and 404.960a, any decision of a hearing examiner provided for in § 404.939 may be revised by such hearing examiner, or by another hearing examiner if the hearing examiner who issued the decision is unavailable, or by the Appeals Council for a reason and within the time period prescribed in § 404.957. Any decision of the Appeals Council provided for in § 404.950, may be revised by the Appeals Council for a reason and within the time period prescribed in

404.957. For the purposes of this paragraph (b), a hearing examiner shall be considered to be unavailable if, among other circumstances, such hearing examiner has died, terminated his employment, is on leave of absence, has had a transfer of official station, or is unable to conduct a hearing because of illness. [28 F.R. 14492, Dec. 31, 1963]

§ 404.957 Reopening initial or reconsidered determinations of the Administration, and decisions of a hearing examiner or the Appeals Council; finality of determinations and decisions.

An initial or reconsidered determination of the Administration or a decision

of a hearing examiner or of the Appeals Council which is otherwise final under § 404.908, § 404.916, § 404.940, or § 404.951 may be reopened:

(a) Within 12 months from the date of the notice of the initial determination (see § 404.907), to the party to such determination, or

(b) After such 12-month period, but within 4 years after the date of the notice of the initial determination (see § 404.907) to the party to such determination, upon a finding of good cause for reopening such determination or decision, or

(c) At any time, when:

(1) Such initial or reconsidered determination or decision was procured by fraud or similar fault of the claimant or some other person; or

(2) An adverse claim has been filed against the same earnings account; or

(3) An individual previously determined to be dead, and on whose account entitlement of a party was established, is later found to be alive; or

(4) The death of the individual on whose account a party's claim was denied for lack of proof of death is established by reason of his unexplained absence from his residence for a period of 7 years (see § 404.705); or

(5) The Railroad Retirement Board, pursuant to the Railroad Retirement Act, has awarded duplicate benefits on the same earnings account; or

(6) The initial or reconsidered determination or decision (for purposes of entitlement under title II or Part A and Part B of title XVIII, or for the amount of benefits under title II) either:

(i) Denies the individual on whose earnings account such benefit claim is based gratuitous wage credits for World War II or post-World War II military or naval service because another Federal Government agency (other than the Veterans' Administration) has erroneously certified that it has awarded benefits based on such service; or

(ii) Credits the earnings account of the individual on which such benefit claim is based with such gratuitous wage credits and another agency of the Federal Government (other than the Veterans' Administration) thereafter certifies that it has awarded a benefit based on the period of service for which such wage credits were granted.

(7) Such initial or reconsidered determination or decision was that the claimant did not have the necessary quarters

of coverage for an insured status but thereafter earnings were credited to his account, pursuant to section 205(c) (5) (C), (D), or (G) of the act, which would have given him an insured status at the time of such determination or decision if such earnings had been credited to his account then.

(8) Such initial or reconsidered determination or decision is unfavorable. in whole or in part, to the party thereto but only for the purpose of correcting clerical error or error on the face of the evidence on which such determination or decision was based.

[25 F.R. 1677, Feb. 26, 1960, as amended at 28 F.R. 14492, Dec. 31, 1963; 31 F.R. 16767, Dec. 31, 1966]

§ 404.958 Good cause for reopening a determination or decision.

"Good cause" shall be deemed to exist where:

(a) New and material evidence is furnished after notice to the party to the initial determination;

(b) A clerical error has been made in the computation or recomputation of benefits;

(c) There is an error as to such determination or decision on the face of the evidence on which such determination or decision is based.

§ 404.959 Finality of initial determinations or decisions on revision of earnings records.

Notwithstanding the provisions

in

§ 404.957, a determination of the Administration or decision of a hearing examiner or the Appeals Council on a revision of an earnings record (see § 404.905 (g)) may be reopened only within the time period and subject to the conditions provided in section 205 (c) (4) or (5) of the act, or within 6 months after the date of notice to the party to such determination or decision, whichever is later.

[25 F.R. 1677, Feb. 26, 1960, as amended at 28 F.R. 14492, Dec. 31, 1963]

§ 404.959a Finality of suspension of benefit payments for entire taxable year because of earnings.

Notwithstanding the provisions in § 404.957, a suspension of benefit payments for an entire taxable year because of earnings therein, may be reopened only within the time period and subject to the conditions provided in section 203(g) (1) (B) of the act, as amended in 1958.

§ 404.960

Time limitation for revising finding as to earnings.

No determination of the Administration or decision of a hearing examiner or the Appeals Council shall be revised after the expiration of the normal period for requesting reconsideration, hearing or review, or commencing a civil action with respect to such determination or decision (see §§ 404.911, 404.918, 404.946, and 404.951) to correct a finding as to wages or self-employment income, unless the correction of such finding is permitted under section 205(c) (4) or (5) of the act (see §§ 404.804-404.806).

[25 F.R. 1677, Feb. 26, 1960, as amended at 28 F.R. 14492, Dec. 31, 1963]

§ 404.960a

Time limitation for revising finding suspending benefit payments for entire taxable year because of earnings.

No determination of the Administration or decision of a hearing examiner or the Appeals Council shall be revised after the expiration of the normal period for requesting reconsideration, hearing or review, or commencing a civil action with respect to such determination or decision (see §§ 404.911, 404.918, 404.946, and 404.951) to correct a finding which suspends benefit payments for an entire taxable year because of earnings therein, unless the correction of such finding is permitted under section 203(g) (1) (B) of the act, as amended in 1958.

[26 F.R. 1677, Feb. 26, 1960, as amended at 28 F.R. 14492, Dec. 31, 1963]

§ 404.961 Notice of revision.

(a) When any determination or decision is revised, as provided in § 404.956, § 404.960, or § 404.960a, notice of such revision shall be mailed to the parties to such determination or decision at their last known addresses. The notice of revision which is mailed to the parties shall state the basis for the revised decision.

(b) Where a determination of the Administration is revised under paragraph (a) of this § 404.961, the notice of revision shall inform the parties of their right to a hearing as provided in § 404.963.

(c) (1) Where a hearing examiner or the Appeals Council proposes to revise a decision under paragraph (a) of this § 404.961 and the revision would be based on evidence theretofore not included in the record on which the decision proposed to be revised was based, the parties

shall be given notice of the proposal of the hearing examiner or the Appeals Council, as the case may be, to revise such decision, and unless hearing is waived, a hearing with respect to such proposed revision shall be granted as provided in this Subpart J.

(2) If a revised decision is appropriate, such decision shall be rendered by the hearing examiner or the Appeals Council, as the case may be, on the basis of the entire record, including the additional evidence. If the decision is revised by a hearing examiner, any party thereto may request review by the Appeals Council (§§ 404.945 and 404.946) or the Appeals Council may review the decision on its own motion (§ 404.947). [25 F.R. 5182, June 10, 1960, as amended at 28 F.R. 14492, Dec. 31, 1963] § 404.962

tion.

Effect of revised determina

Except as provided in § 404.612, the revision of a determination or decision shall be final and binding upon all parties thereto unless a party authorized to do so (see § 404.961) files a written request for a hearing with respect to a revised determination in accordance with 404.963 or a revised decision is reviewed by the Appeals Council as provided in this Subpart J.

[25 F.R. 5182, June 10, 1960]

§ 404.963 Time and place of requesting hearing on revised determination.

The request for hearing shall be made in writing and filed at an office of the Administration, or with a hearing examiner, or the Appeals Council, within 6 months of the date notice was mailed to the party of the Administration's revised determination. Upon the filing of such a request, a hearing with respect to such revision shall be held (see §§ 404.919404.938) and a decision made in accordance with the provisions of § 404.939. [25 F.R. 1677, Feb. 26, 1960, as amended at 28 F.R. 14492, Dec. 31, 1963]

§ 404.964 Finality of findings in a claim for benefits with respect to other claims on the same earnings record. Findings of fact made in a determination or decision in a claim by one party for benefits or a lump sum may be revised in determining or deciding another claim for benefits or lump sum on the same earnings record, even though such findings may not be revised in the former claim because of the provisions of § 404.957, except that a finding in con

nection with a claim that an individual was fully or currently insured at the time he filed his application, at the time of his death, or at any other pertinent time, may be revised only under the conditions specified in § 404.957.

§ 404.965 Imposition of deductions.

The imposition of deductions constitutes an initial determination with respect to each month for which a deduction is imposed. A finding that a deduction is not to be imposed is an initial determination for each month with respect to which the circumstances upon which such finding was based remain unchanged. The suspension of benefits, pursuant to § 404.425, pending a determination as to the applicability of a deduction or deductions under section 203(b) of the act or the suspension of benefits pending a determination as to cessation of disability, shall not, however, constitute an initial determination (see § 404.906 (a) and (b)).

§ 404.966 Change of ruling or legal precedent.

"Good cause" shall be deemed not to exist where the sole basis for reopening the determination or decision is a change of legal interpretation or administrative ruling upon which such determination or decision was made.

§ 404.967 General applicability.

The provisions of §§ 404.957 to 404.959 and 404.964 to 404.966, both inclusive, shall be applicable nothwithstanding any provision to the contrary in this Subpart J.

§ 404.968

Certification of payment.

Determination or decision providing for payment. When a determination or decision has been made under any provision of §§ 404.905 to 404.963, inclusive, to the effect that a payment or payments under title II of the act should be made to any person, the Administration shall, except as hereafter provided, certify to the Managing Trustee of the Board of Trustees of the Federal Old-Age and Survivors Insurance Trust Fund or the Federal Disability Insurance Trust Fund, as appropriate, the name and address of the person to be paid (see § 404.1601), the amount of the payment or payments from the appropriate Trust Fund, and the time at which such payment or payments should be made.

[25 F.R. 1677, Feb. 26, 1960, as amended at 27 F.R. 4513, May 11, 1962]

§ 404.969 Withholding certification or payments.

After a determination or decision, as described in § 404.968, has been made, the Administration may withhold certification to the Managing Trustee, or, if certification has been made, may notify the Managing Trustee to withhold payments, to the extent and during such time that there is a question as to the validity of such payment or payments to be made pursuant to such determination or decision, by reason of the fact that:

(a) A reconsideration (whether pursuant to a request of the claimant or on the Administration's own motion), hearing, or review, is being conducted, or a civil action has been filed in a district court of the United States, with respect to such determination or decision; or

(b) An application or request is pending with respect to the payment of benefits or a lump sum to another person and such application or request is inconsistent, in whole or in part, with the payment or payments under such determination or decsion: Provided, however, That certification or payment shall not be withheld under the above circumstances unless evidence is submitted in connection with a request or application described in paragraphs (a) and (b) of this section, which is sufficient to raise a reasonable question as to the validity of the payment or payments under the determination or decision. The Administration shall, however, certify for payment, as provided in § 404.968, any amount of the payment or payments which is not in question. The acceptance of any payment or payments by a person entitled thereto shall be without prejudice to his rights to reconsideration, hearing, or review, as to any additional payment or payments he may claim.

[25 F.R. 1677, Feb. 26, 1960, as amended at 28 F.R. 14492, Dec. 31, 1963]

§ 404.970 Transfer or assignment.

The Administration shall not certify, as provided in § 404.968, any amount for payment to an assignee or transferee of the person entitled to such payment under the act, nor shall the Administration certify such amount for payment to any person claiming such payment by virtue of an execution, levy, attachment, garnishment, or other legal process or by virtue of any bankruptcy or insolvency proceeding against or affecting the per

son entitled to the payment under the act.

§ 404.971 Representation of parties.

Appointment of representatives. A party to an initial determination, reconsideration, hearing, or review, as provided in §§ 404.905 to 404.963, inclusive, may appoint as his representative in any such proceeding only an individual who is qualified under § 404.972 to act as a representative. Except where the representative appointed is an attorney, such party must give written notice of the appointment of a representative, signed by the party appointing the representative, and accepted by the representative appointed. The notice of appointment shall be filed at an office of the Bureau, with a hearing examiner, or with the Appeals Council. Where the representative appointed is an attorney, in the absence of information to the contrary his representation that he has such authority shall be accepted as evidence of the attorney's authority to represent a party.

§ 404.972 Qualifications of representatives.

Any individual may be appointed to act as a representative in accordance with § 404.971, unless he is disbarred or suspended from acting as a representative in proceedings before the Social Security Administration or unless otherwise prohibited by law.

§ 404.973 Authority of representatives.

A representative, appointed and qualified as provided in §§ 404.971 and 404.972, may make or give, on behalf of the party he represents, any request or notice relative to any proceeding before the Social Security Administration under title II of the act, including reconsideration, hearing and review, except that such representative may not execute an application for benefits, or the establishment of a period of disability, or a lump sum unless he is a person designated in § 404.603 as authorized to execute an application for benefits, or the establishment of a period of disability, or a lump sum. A representative shall be entitled to present evidence and allegations as to facts and law in any proceeding affecting the party he represents and to obtain information with respect to the claim of such party to the same extent as such party. Notice to any party of any administrative action, determination, or decision, or request to any party for the production of

evidence, may be sent to the representative of such party, and such notice or request shall have the same force and effect as if it had been sent to the party represented.

§ 404.974 Proceedings before a State or Federal court.

Any service rendered by any representative in connection with any proceeding before any State or Federal court shall not be considered services in any proceeding before the Social Security Administration for purposes of §§ 404.973, 404.976 and 404.977.

§ 404.975 Fees for services.

Fees for the services of a representative, appointed and qualified in accordance with §§ 404.971 and 404.972 may be charged to, and received from, the party represented only as provided in §§ 404.976 and 404.977. No fees for services in any proceeding under title II of the act shall be charged by or paid to any person except a representative duly appointed and qualified in accordance with §§ 404.971 and 404.972.

§ 404.976 Attorneys.

An attorney who is admitted to practice before a court of a State, Territory, District, or insular possession, or before the Supreme Court of the United States or an inferior Federal court, and who is not otherwise prohibited by law from charging or receiving such a fee, may upon petition therefor and good cause shown charge and receive such fee for services rendered in any proceeding under title II of the act before the Bureau of Old-Age and Survivors Insurance, or a hearing examiner, or the Appeals Council (see § 404.977a), as may be approved by such Bureau, hearing examiner, or Appeals Council, respectively: Provided, That no such approval shall be required for charging or receiving a fee for such services in a total amount not greater than the following: Representation before the Bureau only, $20; representation before a hearing examiner and/or the Appeals Council only, $30; representation before the Bureau and a hearing examiner and/or the Appeals Council, $50. This limitation shall be applicable whether the fee is paid by a party to the proceeding or by someone else.