[Title 20 CFR 410]
[Code of Federal Regulations (annual edition) - April 1, 1996 Edition]
[Title 20 - EMPLOYEES' BENEFITS]
[Chapter III - SOCIAL SECURITY ADMINISTRATION]
[Part 410 - FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969, TITLE IV-- BLACK LUNG BENEFITS (1969- )]
[From the U.S. Government Publishing Office]
20
EMPLOYEES' BENEFITS
2
1996-04-01
1996-04-01
false
FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969, TITLE IV-- BLACK LUNG BENEFITS (1969- )
410
PART 410
EMPLOYEES' BENEFITS
SOCIAL SECURITY ADMINISTRATION
PART 410--FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969, TITLE IV-- BLACK LUNG BENEFITS (1969- )--Table of Contents
Subpart A--Introduction, General Provisions, and Definitions
Sec.
410.101 Introduction.
410.110 General definitions and use of terms.
410.120 Disclosure of program information.
410.130 Periods of limitation ending on nonworkdays.
Subpart B--Requirements for Entitlement; Duration of Entitlement; Filing
of Claims and Evidence
410.200 Types of benefits; general.
410.201 Conditions of entitlement; miner.
410.202 Duration of entitlement; miner.
410.210 Conditions of entitlement; widow or surviving divorced wife.
410.211 Duration of entitlement; widow or surviving divorced wife.
410.212 Conditions of entitlement; child.
410.213 Duration of entitlement; child.
[[Page 519]]
410.214 Conditions of entitlement; parent, brother, or sister.
410.215 Duration of entitlement; parent, brother, or sister.
410.216 ``Good cause'' for delayed filing of proof of support.
410.219 Filing a claim under State workmen's compensation law; when
filing such claim shall be considered futile.
410.220 Claim for benefits; definitions.
410.221 Prescribed application and request forms.
410.222 Execution of a claim.
410.223 Evidence of authority to execute a claim on behalf of another.
410.224 Claimant must be alive when claim is filed.
410.226 Periods for which claims are effective.
410.227 When a claim is considered to have been filed; time and place
of filing.
410.228 Requests and notices to be in writing.
410.229 When written statement is considered a claim; general.
410.230 Written statement filed by or for a miner on behalf of a member
of his family.
410.231 Time limits for filing claims.
410.232 Withdrawal of a claim.
410.233 Cancellation of a request for withdrawal.
410.234 Interim provisions.
410.240 Evidence.
410.250 Effect of conviction of felonious and intentional homicide on
entitlement to benefits.
Subpart C--Relationship and Dependency
410.300 Relationship and dependency; general.
410.310 Determination of relationship; wife.
410.311 Determination of relationship; divorced wife.
410.320 Determination of relationship; widow.
410.321 Determination of relationship; surviving divorced wife.
410.330 Determination of relationship; child.
410.340 Determination of relationship; parent, brother, or sister.
410.350 Determination of dependency; wife.
410.351 Determination of dependency; divorced wife.
410.360 Determination of dependency; widow.
410.361 Determination of dependency; surviving divorced wife.
410.370 Determination of dependency; child.
410.380 Determination of dependency; parent, brother, or sister.
410.390 Time of determinations.
410.391 Legal impediment.
410.392 Domicile.
410.393 ``Member of the same household''; ``living with''; ``living in
the same household''; and ``living in the miner's household.''
410.394 [Reserved]
410.395 Contributions and support.
Subpart D--Total Disability or Death Due to Pneumoconiosis
410.401 Scope of Subpart D.
410.410 Total disability due to pneumoconiosis, including statutory
presumption.
410.412 ``Total disability'' defined.
410.414 Determining the existence of pneumoconiosis, including
statutory presumption.
410.416 Determining origin of pneumoconiosis, including statutory
presumption.
410.418 Irrebuttable presumption of total disability due to
pneumoconiosis.
410.422 Determining total disability: General criteria.
410.424 Determining total disability: Medical criteria only.
410.426 Determining total disability: Age, education, and work
experience criteria.
410.428 X-ray, biopsy, and autopsy evidence of pneumoconiosis.
410.430 Ventilatory studies.
410.432 Cessation of disability.
410.450 Death due to pneumoconiosis, including statutory presumption.
410.454 Determining the existence of pneumoconiosis, including
statutory presumption--survivor's claim.
410.456 Determining origin of pneumoconiosis, including statutory
presumption--survivor's claim.
410.458 Irrebuttable presumption of death due to pneumoconiosis--
survivor's claim.
410.462 Presumption relating to respirable disease.
410.470 Determination by nongovernmental organization or other
governmental agency.
410.471 Conclusion by physician regarding miner's disability or death.
410.472 Consultative examinations.
410.473 Evidence of continuation of disability.
410.474 Place and manner of submitting evidence.
410.475 Failure to submit evidence.
410.476 Responsibility to give notice of event which may affect a
change in disability status.
410.490 Interim adjudicatory rules for certain Part B claims filed by a
miner before July 1, 1973, or by a survivor where the miner
died before January 1, 1974.
Appendix to Subpart D
[[Page 520]]
Subpart E--Payment of Benefits
410.501 Payment periods.
410.505 Payees.
410.510 Computation of benefits.
410.511 Certification to dependent of augmentation portion of benefit.
410.515 Modification of benefit amounts; general.
410.520 Reductions; receipt of State benefit.
410.530 Reductions; excess earnings.
410.535 Reductions; effect of an additional claim for benefits.
410.536 Reductions; effect of augmentation of benefits based on
subsequent qualification of individual.
410.540 Reductions; more than one reduction event.
410.550 Nonpayment of benefits to residents of certain States.
410.560 Overpayments.
410.561 Notice of right to waiver consideration.
410.561a When waiver of adjustment or recovery may be applied.
410.561b Fault.
410.561c Defeat the purpose of title IV.
410.561d Against equity and good conscience; defined.
410.561e When an individual is ``without fault'' in a reduction-
overpayment.
410.561f When an individual is ``without fault'' in an entitlement
overpayment.
410.561g When an individual is at ``fault'' in a reduction-overpayment.
410.561h When adjustment or recovery of an overpayment will be waived.
410.563 Liability of a certifying officer.
410.565 Collection and compromise of claims for overpayment.
410.570 Underpayments.
410.580 Relation to provisions for reductions or increases.
410.581 Payments on behalf of an individual.
410.582 Submission of evidence by representative payee.
410.583 Responsibility of representative payee.
410.584 Use of benefits for current maintenance.
410.585 Conservation and investment of payments.
410.586 Use of benefits for beneficiary in institution.
410.587 Support of legally dependent spouse, child, or parent.
410.588 Claims of creditors.
410.589 Accountability.
410.590 Transfer of accumulated benefit payments.
410.591 Eligibility for services and supplies under Part C of title IV
of the act.
Subpart F--Determinations of Disability, Other Determinations,
Administrative Review, Finality of Decisions, and Representation of
Parties
410.601 Determinations of disability.
410.610 Administrative actions that are initial determinations.
410.615 Administrative actions that are not initial determinations.
410.620 Notice of initial determination.
410.621 Effect of initial determination.
410.622 Reconsideration and hearing.
410.623 Reconsideration; right to reconsideration.
410.624 Time and place of filing request.
410.625 Parties to the reconsideration.
410.626 Notice of reconsideration.
410.627 Reconsidered determination.
410.628 Notice of reconsidered determination.
410.629 Effect of reconsidered determination.
410.629a Expedited appeals process; conditions for use of such process.
410.629b Expedited appeals process; place and time of filing request.
410.629c Expedited appeals process; parties.
410.629d Expedited appeals process; agreement requirements.
410.629e Expedited appeals process; effect of agreement.
410.629f Effect of a request that does not result in agreement.
410.630 Hearing; right to hearing.
410.631 Time and place of filing request.
410.632 Parties to a hearing.
410.633 Additional parties to the hearing.
410.634 Administrative Law Judge.
410.635 Disqualification of Administrative Law Judge.
410.636 Time and place of hearing.
410.637 Hearing on new issues.
410.638 Change of time and place for hearing.
410.639 Subpenas.
410.640 Conduct of hearing.
410.641 Evidence.
410.642 Witnesses.
410.643 Oral argument and written allegations.
410.644 Record of hearing.
410.645 Joint hearings.
410.646 Consolidated issues.
410.647 Waiver of right to appear and present evidence.
410.648 Dismissal of request for hearing; by application of party.
410.649 Dismissal by abandonment of party.
410.650 Dismissal for cause.
410.651 Notice of dismissal and right to request review thereon.
410.652 Effect of dismissal.
410.653 Vacation of dismissal of request for hearing.
410.654 Administrative Law Judge's decision or certification to Appeals
Council.
[[Page 521]]
410.655 Effect of Administrative Law Judge's decision.
410.656 Removal of hearing to Appeals Council.
410.657 Appeals Council proceedings on certification and review;
procedure before Appeals Council on certification by the
Administrative Law Judge.
410.658 Evidence in proceeding before Appeals Council.
410.659 Decision of Appeals Council.
410.660 Right to request review of Administrative Law Judge's decision
or dismissal.
410.661 Time and place of filing request.
410.662 Action by Appeals Council on review.
410.663 Procedure before Appeals Council on review.
410.664 Evidence admissible on review.
410.665 Decision by Appeals Council or remanding of case.
410.666 Effect of Appeals Council's decision or refusal to review.
410.667 Dismissal by Appeals Council.
410.668 Extension of time to request reconsideration.
410.669 Extension of time to request hearing or review or begin civil
action.
410.670 Review by Appeals Council.
410.670a Judicial review.
410.670b Interim provisions for the adjudication of certain claims
filed prior to May 19, 1972.
410.670c Application of circuit court law.
410.671 Revision for error or other reason; time limitation generally.
410.672 Reopening initial, revised or reconsidered determinations of
the Administration and decisions of an Administrative Law
Judge or the Appeals Council; finality of determinations and
decisions.
410.673 Good cause for reopening a determination or decision.
410.674 Finality of suspension of benefit payments for entire taxable
year because of earnings.
410.675 Time limitation for revising finding suspending benefit
payments for entire taxable year because of earnings.
410.675a Late completion of timely investigation.
410.676 Notice of revision.
410.677 Effect of revised determination.
410.678 Time and place of requesting hearing on revised determination.
410.679 Finality of findings with respect to other claims for benefits
based on the disability or death of a miner.
410.680 Imposition of reductions.
410.681 Change of ruling or legal precedent.
410.682 General applicability.
410.683 Certification of payment; determination or decision providing
for payment.
410.683a [Reserved]
410.683b Transfer or assignment.
410.684 Representation of party; appointment of representative.
410.685 Qualifications of representative.
410.686 Authority of representative.
410.686a Proceedings before a State or Federal court.
410.686b Fee for services performed for an individual before the Social
Security Administration.
410.686c Petition for approval of fee.
410.686d Payment of fees.
410.686e Services rendered for an individual in a proceeding before the
Administration under Part B of title IV of the Act.
410.687 Rules governing the representation and advising of claimants
and parties.
410.687a Effective date.
410.688 Disqualification or suspension of an individual from acting as
a representative in proceedings before the Administration.
410.689 Notice of charges.
410.690 Withdrawal of charges.
410.691 Referral to Bureau of Hearings and Appeals for hearing and
decision.
410.692 Hearing on charges.
410.693 Decision by hearing officer.
410.694 Right to request review of the hearing officer's decision.
410.695 Procedure before Appeals Council on review of hearing officer's
decision.
410.696 Evidence admissible on review.
410.697 Decision by Appeals Council on review of hearing officer's
decision.
410.698 Dismissal by Appeals Council.
410.699 Reinstatement after suspension or disqualification.
410.699a Penalties for fraud.
Subpart G--Rules for the Review of Denied and Pending Claims Under the
Black Lung Benefits Reform Act (BLBRA) of 1977
410.700 Background.
410.701 Jurisdiction for determining entitlement under Part B.
410.702 Definitions and terms.
410.703 Adjudicatory rules for determining entitlement to benefits.
410.704 Review procedures.
410.705 Duplicate claims.
410.706 Effect of Social Security Administration determination of
entitlement.
410.707 Hearings and appeals.
Subpart A--Introduction, General Provisions, and Definitions
Sec. 410.101 Introduction.
The regulations in this part 410 (Regulation No. 10 of the Social
Security Administration) relate to the provisions of part B (Black Lung
Benefits) of title IV of the Federal Coal Mine Health and Safety Act of
1969, as enacted December 30, 1969, as amended by the Black Lung
Benefits Act of 1972, and as may hereafter be amended. The regulations
in this part are divided into the following subparts according to
subject content:
(a) This subpart A contains this introduction, general provisions,
and provisions relating to definitions and the use of terms.
(b) Subpart B of this part relates to the requirements for
entitlement, duration of entitlement, filing of claims, and evidence.
(c) Subpart C of this part describes the relationship and dependency
required for widows, children, parents, brothers, and sisters, and
relationship and dependency requirements which affect the benefit
amounts of entitled miners and widows.
(d) Subpart D of this part provides standards for determining total
disability and death due to pneumoconiosis.
(e) Subpart E of this part relates to payment of benefits, payment
periods, benefit rates and their modification, representative payees,
and overpayments and underpayments.
(f) Subpart F of this part relates to determinations of disability
and other determinations, the procedures for administrative review,
finality of decisions, and the representation of parties.
[36 FR 23752, Dec. 14, 1971, as amended at 37 FR 20635, Sept. 30, 1972]
Sec. 410.110 General definitions and use of terms.
For purposes of this part, except where the context clearly
indicates otherwise, the following definitions apply:
(a) The Act, means the Federal Coal Mine Health and Safety Act of
1969 (Pub. L. 91-173), enacted December 30, 1969, as amended by the
Black Lung Benefits Act of 1972 (Pub. L. 92-303), enacted May 19, 1972,
and as may hereafter be amended.
(b) Benefit means the black lung benefit provided under part B of
title IV of the Act to coal miners, to surviving widows of miners, to
the surviving child or children of a miner, or of a widow of a miner, to
the surviving dependent parent or parents of a miner, and to the
surviving dependent brother(s) or sister(s) of a miner.
(c) Secretary means the Secretary of Health, Education, and Welfare.
(d) Commissioner means the Commissioner of Social Security.
(e) Administration means the Social Security Administration in the
Department of Health, Education, and Welfare.
(f) Appeals Council means the Appeals Council of the Bureau of
Hearings and Appeals in the Social Security Administration or such
member or members thereof as may be designated by the Chairman.
(g) Administrative Law Judge means an Administrative Law Judge in
the Bureau of Hearings and Appeals of the Social Security
Administration.
(h) Coal mine means an area of land and all structures, facilities,
machinery, tools, equipment, shafts, slopes, tunnels, excavations, and
other property, real or personal, placed upon, under, or above the
surface of such land by any person, used in, or to be used in, or
resulting from, the work of extracting in such area bituminous coal,
lignite, or anthracite from its natural deposits in the earth by any
means or method, and the work of preparing the coal so extracted, and
includes custom coal preparation facilities.
(i) Underground coal mine means a coal mine in which the earth and
other materials which lie above the natural deposit of coal (overburden)
is not removed in mining. In addition to the natural deposits of coal in
the earth, the underground mine includes all land, buildings and
equipment appurtenant thereto.
(j) Miner or coal miner means any individual who is working or has
worked as an employee in a coal mine, performing functions in extracting
the coal or preparing the coal so extracted.
(k) The Nation's coal mines comprise all coal mines as defined in
paragraph
[[Page 523]]
(h) of this section located in a State as defined in paragraph (l) of
this section.
(l) State includes a State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American
Samoa, Guam, the Trust Territory of the Pacific Islands, and prior to
January 3, 1959, and August 21, 1959, respectively, the Territories of
Alaska and Hawaii.
(m) Employee means an individual in a legal relationship (between
the person for whom he performs services and himself) of employer and
employee under the usual common-law rules.
(1) Generally, such relationship exists when the person for whom
services are performed has the right to control and direct the
individual who performs the services, not only as to the result to be
accomplished by the work but also as to the means by which that result
is accomplished; that is, an employee is subject to the will and control
of the employer not only as to what shall be done but how it shall be
done. In this connection, it is not necessary that the employer actually
direct or control the manner in which the services are performed; it is
sufficient if he has the right to do so. The right to discharge is also
an important factor indicating that the person possessing that right is
an employer. Other factors characteristic of an employer, but not
necessarily present in every case, are the furnishing of tools and the
furnishing of a place to work to the individual who performs the
services. In general, if an individual is subject to the control or
direction of another merely as to the result to be accomplished by the
work and not as to the means and methods for accomplishing the result,
he is an independent contractor. An individual performing services as an
independent contractor is not as to such services an employee under the
usual common-law rules.
(2) Whether the relationship of employer and employee exists under
the usual common-law rules will in doubtful cases be determined upon an
examination of the particular facts of each case.
(n) The Social Security Act means the Social Security Act (49 Stat.
620) as amended from time to time.
(o) Pneumoconiosis means: (1) A chronic dust disease of the lung
arising out of employment in the Nation's coal mines, and includes coal
workers' pneumoconiosis, anthracosilicosis, anthracosis,
anthrosilicosis, massive pulmonary fibrosis, progressive massive
fibrosis, silicosis, or silicotuberculosis, arising out of such
employment.
For purposes of this subpart, the term also includes the following
conditions that may be the basis for application of the statutory
presumption of disability or death due to pneumoconiosis under the
circumstances prescribed in section 411(c) of the Act:
(2) Any other chronic respiratory or pulmonary impairment when the
conditions are met for the application of the presumption described in
Sec. 410.414(b) or Sec. 410.454(b), and
(3) Any respirable disease when the conditions are met for the
application of the presumption described in Sec. 410.462.
(p) A workmen's compensation law means a law providing for payment
of compensation to an employee (and his dependents) for injury
(including occupational disease) or death suffered in connection with
his employment. A payment funded wholly out of general revenues and paid
(without regard to insurance principles) solely on account of the
financial need of the miner and his family, shall not be considered a
payment under a workmen's compensation law.
(q) Masculine gender includes the feminine, and the singular
includes the plural.
(r) Beneficiary means a miner or a surviving widow, child, parent,
brother, or sister, who is entitled to a benefit as defined in paragraph
(b) of this section.
[35 FR 5623, Apr. 7, 1970, as amended at 37 FR 20635, Sept. 30, 1972]
Sec. 410.120 Disclosure of program information.
Disclosure of any file, record, report, or other paper, or any
information obtained at any time by the Department of Health, Education,
and Welfare, or any officer or employee of that Department, or any
person, agency, or organization with whom the Administration
[[Page 524]]
has entered into an agreement to perform certain functions in the
Administration of title IV of the Act, which in any way relates to, or
is necessary to, or is used in, or in connection with, the
administration of such title, shall be made in accordance with the
regulations of the Department contained in 45 CFR part 5, except that
any such file, record, report, or other paper or information obtained in
connection with the administration of the old-age, survivors,
disability, or health insurance programs pursuant to titles II and XVIII
of the Social Security Act, shall be disclosed only in accordance with
Regulation No. 1 of the Social Security Administration, part 401 of this
chapter.
[36 FR 23752, Dec. 14, 1971]
Sec. 410.130 Periods of limitation ending on nonworkdays.
Where any provision of part B of title IV of the Act, or any
provision of another law of the United States, relating to or changing
the effect of part B, or any regulation of the Secretary issued under
part B, provides for a period within which an act is required to be done
which affects eligibility for or the amount of any benefit or payment
under this part or is necessary to establish or protect any right under
this part, and such period ends on a Saturday, Sunday, or Federal legal
holiday, or on any other day all or part of which is declared to be a
nonworkday for Federal employees by statute or Executive order, then
such act shall be considered as done within such period if it is done on
the first day thereafter which is not a Saturday, Sunday, or legal
holiday, or any other day all or part of which is declared to be a
nonworkday for Federal employees either by statute or Executive order.
For purposes of this section, the day on which a period ends shall
include the final day of the extended period where such extension is
authorized by law or by the Secretary pursuant to law. Such extension of
any period of limitation does not apply to periods during which benefits
may be paid for months prior to the month a claim for such benefits is
filed (see Sec. 410.226).
[37 FR 20635, Sept. 30, 1972]
Subpart B--Requirements for Entitlement; Duration of Entitlement; Filing
of Claims; and Evidence
Sec. 410.200 Types of benefits; general.
(a) Part B of title IV of the Act provides for the payment of
periodic benefits:
(1) To a miner who is determined to be totally disabled due to
pneumoconiosis; or
(2) To the widow or child of a miner who was entitled to benefits at
the time of his death, who is determined to have been totally disabled
due to pneumoconiosis at the time of his death, or whose death was due
to pneumoconiosis; or
(3) To the child of a widow of a miner who was entitled to benefits
at the time of her death; or
(4) To the surviving dependent parents, or the surviving dependent
brothers or sisters, of a miner who is determined to have been entitled
to benefits at the time of his death, or who was totally disabled due to
pneumoconiosis at the time of his death, or whose death was due to
pneumoconiosis.
(b) The following sections of this subpart set out the conditions of
entitlement to benefits for a miner, a widow, child, parent, brother, or
sister; describe the events which terminate or preclude entitlement to
benefits and the procedures for filing a claim; and prescribe certain
requirements as to evidence. Also see subpart C of this part for
regulations relating to the relationship and dependency requirements
applicable to claimants for benefits as a widow, child, parent, brother,
or sister, and to beneficiaries with dependents.
[37 FR 20635, Sept. 30, 1972]
Sec. 410.201 Conditions of entitlement; miner.
An individual is entitled to benefits if such individual:
(a) Is a miner (see Sec. 410.110(j)); and
[[Page 525]]
(b) Is totally disabled due to pneumoconiosis (see subpart D of this
part); and
(c) Has filed a claim for benefits in accordance with the provisions
of Secs. 410.220 through 410.234.
[36 FR 23752, Dec. 14, 1971, as amended at 37 FR 20635, Sept. 30, 1972]
Sec. 410.202 Duration of entitlement; miner.
(a) An individual is entitled to benefits as a miner for each month
beginning with the first month in which all of the conditions of
entitlement prescribed in Sec. 410.201 are satisfied.
(b) The last month for which such individual is entitled to such
benefit is the month before the month:
(1) In which the miner dies (see, however, Sec. 410.226); or
(2) In no part of which the miner is under a disability.
(c) A miner's entitlement to benefits under part B of title IV of
the Act which is based on a claim which is filed (see Sec. 410.227)
after June 30, 1973, and before January 1, 1974, shall terminate on
December 31, 1973, unless sooner terminated under paragraph (b) of this
section.
[36 FR 23752, Dec. 14, 1971, as amended at 37 FR 20635, Sept. 30, 1972]
Sec. 410.210 Conditions of entitlement; widow or surviving divorced wife.
An individual is entitled to benefits if such individual:
(a) Is the widow (see Sec. 410.320) or surviving divorced wife (see
Sec. 410.321) of a miner (see Sec. 410.110(j));
(b) Is not married during her initial month of entitlement (or, for
months prior to May 1972, had not remarried since the miner's death);
(c) Has filed a claim for benefits in accordance with the provisions
of Secs. 410.220 through 410.234;
(d) Was dependent on the miner at the pertinent time (see
Sec. 410.360 or Sec. 410.361); and
(e) The deceased miner:
(1) Was entitled to benefits at the time of his death; or
(2) Died before January 1, 1974, and it is determined that he was
totally disabled due to pneumoconiosis at the time of his death, or that
his death was due to pneumoconiosis (see subpart D of this part).
[37 FR 20636, Sept. 30, 1972, as amended at 41 FR 4899, Feb. 3, 1976]
Sec. 410.211 Duration of entitlement; widow or surviving divorced wife.
(a) An individual is entitled to benefits as a widow, or as a
surviving divorced wife, for each month beginning with the first month
in which all of the conditions of entitlement prescribed in Sec. 410.210
are satisfied. If such individual remarries, payment of benefits ends
with the month before the month of remarriage (see paragraph (b) of this
section). Should the remarriage subsequently end, payment of benefits
may be resumed beginning with the month after December 1973 in which the
remarriage ends if the Social Security Administration receives notice in
writing within 3 months of the end of such remarriage or within 3 months
of February 3, 1976, whichever is later. Where such notice is not
provided within the prescribed time period, resumption of payment will
begin with the month the individual provides such notice to the Social
Security Administration.
(b) The last month for which such individual is entitled to such
benefit is the month before the month in which either of the following
events first occurs:
(1) The widow or surviving divorced wife dies; or
(2) Where the individual has qualified as the widow of a miner under
Sec. 410.320 (d), she ceases to so qualify, as provided therein.
(c) Although payment of benefits to a widow or surviving divorced
wife ends with the month before the month in which she marries (see
paragraph (a) of this section), her entitlement is not terminated by
such marriage. However, but solely for purposes of entitlement of a
child under Sec. 410.212(b), a widow is deemed not entitled to benefits
in months for which she is not paid benefits because she is married.
[41 FR 4899, Feb. 3, 1976]
Sec. 410.212 Conditions of entitlement; child.
(a) An individual is entitled to benefits if such individual:
[[Page 526]]
(1) Is the child or stepchild (see Sec. 410.330) of (i) a deceased
miner (see Sec. 410.110(j)) or (ii) of the widow of a miner who was
entitled to benefits at the time of her death (see Secs. 410.210 and
410.211);
(2) Has filed a claim for benefits in accordance with the provisions
of Secs. 410.220 through 410.234;
(3) Meets the dependency requirements in Sec. 410.370;
(4) If a child of a miner, the deceased miner:
(i) Was entitled to benefits at the time of his death; or
(ii) Died before January 1, 1974, and his death is determined to
have been due to pneumoconiosis (see subpart D of this part), or
(iii) Died before January 1, 1974, and it is determined that at the
time of his death he was totally disabled by pneumoconiosis (see subpart
D of this part).
(b) A child is not entitled to benefits for any month for which a
widow of a miner is entitled to benefits, except that (for purposes of
entitlement of a child under this section) a widow is deemed not
entitled to benefits in months for which she is not paid benefits
because she is married (see Sec. 410.211). Thus, a child may be entitled
to benefits for months wherein such benefits are not payable to the
widow because of marriage.
[37 FR 20636, Sept. 30, 1972, as amended at 41 FR 4900, Feb. 3, 1976]
Sec. 410.213 Duration of entitlement; child.
(a) An individual is entitled to benefits as a child for each month
beginning with the first month in which all of the conditions of
entitlement prescribed in Sec. 410.212 are satisfied.
(b) The last month for which such individual is entitled to or may
be paid such benefit is the month before the month in which any one of
the following events first occurs:
(1) The child dies;
(2) The child marries;
(3) The child attains age 18 and,
(i) Is not under a disability at that time, and
(ii) Is not a student (as defined in Sec. 410.370) during any part
of the month in which he attains age 18;
(4) If the child's entitlement is based on his status as a student,
the earlier of:
(i) The first month during no part of which he is a student, or
(ii) The month in which he attains age 23 and is not under a
disability at that time (but see Sec. 410.370(c)(4) for an exception);
(5) If the child's entitlement is based on disability, the first
month in no part of which such individual is under a disability;
(6) A widow's benefit payment, which was ended because of marriage,
is resumed following termination of such marriage. (See
Sec. 410.211(a)). (In the month before the month in which a widow
marries, payment of benefits to her ends and non-payment of such
benefits continues for the duration of the marriage. Thereafter, if her
remarriage ends, subject to the provisions of Sec. 410.211 her benefit
payments may be resumed. Should such widow again remarry or die, payment
of benefits to such child, if he is otherwise entitled, will be resumed
effective with the month of such remarriage or death. In such event no
action by or on behalf of such child is required for resumption of
payment.)
(c) A child whose entitlement to benefits terminated with the month
before the month in which he attained age 18, or later, may thereafter
(provided he is not married) again become entitled to such benefits upon
filing application for such reentitlement, beginning with the first
month in which he files such application in or after such termination
and in which he is a student and has not attained the age of 23.
[37 FR 20636, Sept. 30, 1972, as amended at 41 FR 4900, Feb. 3, 1976]
Sec. 410.214 Conditions of entitlement; parent, brother, or sister.
An individual is entitled to benefits if:
(a) Such individual:
(1) Is the parent, brother, or sister (see Sec. 410.340) of a
deceased miner (see Sec. 410.110(j));
(2) Has filed a claim for benefits in accordance with the provisions
of Secs. 410.220 through 410.234;
(3) Was dependent on the miner at the pertinent time (see
Sec. 410.380); and
[[Page 527]]
(4) Files proof of support before June 1, 1974, or within 2 years
after the miner's death, whichever is later, or it is shown to the
satisfaction of the Administration that there is good cause for failure
to file such proof within such period (see Sec. 410.216).
(b) In the case of a brother, he also:
(1) Is under 18 years of age; or
(2) Is 18 years of age or older and is under a disability as defined
in section 223(d) of the Social Security Act, 42 U.S.C. 423(d) (see
subpart P of part 404 of this chapter), which began:
(i) Before he attained age 22, however, no entitlement to brother's
benefits may be established for any month before January 1973, based on
a disability which began after attainment of age 18; or
(ii) In the case of a student, before he ceased to be a student (see
Sec. 410.370(c)); or
(3) Is a student (see Sec. 410.370(c)); or
(4) Is under a disability as defined in section 223(d) of the Social
Security Act, 42 U.S.C. 423(d) (see subpart P of part 404 of this
chapter), at the time of the miner's death.
(c) In addition to the requirements set forth in paragraphs (a) and
(b) of this section, the deceased miner:
(1) Was entitled to benefits at the time of his death; or
(2) Died before January 1, 1974, and his death is determined to have
been due to pneumoconiosis (see subpart D of this part); or
(3) Died before January 1, 1974, and it is determined that at the
time of his death he was totally disabled by pneumoconiosis (see subpart
D of this part).
(d) Notwithstanding the provisions of paragraphs (a), (b), and (c)
of this section:
(1) A parent is not entitled to benefits if the deceased miner was
survived by a widow or child at the time of his death, and
(2) A brother or sister is not entitled to benefits if the deceased
miner was survived by a widow, child, or parent at the time of his
death.
[37 FR 20636, Sept. 30, 1972, as amended at 41 FR 7091, Feb. 17, 1976]
Sec. 410.215 Duration of entitlement; parent, brother, or sister.
(a) A parent, brother, or sister is entitled to benefits beginning
with the month all the conditions of entitlement described in
Sec. 410.214 are met.
(b) The last month for which such parent is entitled to benefits is
the month before the month in which the parent dies.
(c) The last month for which such sister is entitled to benefits is
the month before the month in which any of the following events occurs:
(1) She dies;
(2)(i) She marries or remarries; or
(ii) If already married, she receives support in any amount from her
spouse.
(d) The last month for which such brother is entitled to benefits is
the month before the month in which any of the following events first
occurs:
(1) He dies;
(2)(i) He marries or remarries; or
(ii) If already married, he receives support in any amount from his
spouse;
(3) He attains age 18 and,
(i) Is not under a disability at that time, and
(ii) Is not a student (see Sec. 410.370(c)) during any part of the
month in which he attains age 18;
(4) If his entitlement is based on his status as a student, the
earlier of:
(i) The first month during no part of which he is a student; or
(ii) The month in which he attains age 23 and is not under a
disability at that time;
(5) If his entitlement is based on disability, the first month in no
part of which such individual is under a disability.
[37 FR 20636, Sept. 30, 1972]
Sec. 410.216 ``Good cause'' for delayed filing of proof of support.
(a) What constitutes ``good cause.'' Good cause may be found for
failure to file proof of support within the 2-year period where the
parent, brother, or sister establishes to the satisfaction of the
Administration that such failure to file was due to:
(1) Circumstances beyond the individual's control, such as extended
illness, mental or physical incapacity, or communication difficulties;
or
[[Page 528]]
(2) Incorrect or incomplete information furnished the individual by
the Administration; or
(3) Efforts by the individual to secure supporting evidence without
a realization that such evidence could be submitted after filing proof
of support; or
(4) Unusual or unavoidable circumstances, the nature of which
demonstrate that the individual could not reasonably be expected to have
been aware of the need to file timely the proof of support.
(b) What does not constitute ``good cause.'' Good cause for failure
to file timely such proof of support does not exist when there is
evidence of record in the Administration that the individual was
informed that he should file within the initial 2-year period and he
failed to do so through negligence or intent not to file.
[37 FR 20637, Sept. 30, 1972]
Sec. 410.219 Filing a claim under State workmen's compensation law; when filing such claim shall be considered futile.
(a) A claimant for benefits under this part must file a claim under
the applicable State workmen's compensation law prior to a final
decision on his claim for benefits under this part (see Sec. 410.227(c))
except where the filing of a claim under such applicable State workmen's
compensation law would clearly be futile.
(b) The Administration shall determine that the filing of such a
claim would clearly be futile when:
(1) The period within which such a claim may be filed under such law
has expired; or
(2) Pneumoconiosis as defined in Sec. 410.110(o) is not compensable
under such law; or
(3) The maximum amount of compensation or the maximum number of
compensation payments allowable under such law has already been paid; or
(4) The claimant does not meet one or more conditions of eligibility
for workmen's compensation payments under applicable State law; or
(5) In any other situation the claimant establishes to the
satisfaction of the Administration that the filing of a claim on account
of pneumoconiosis would result as a matter of law in a denial of his
claim for compensation under such law.
(c) To be considered to have complied with the statutory requirement
for filing a claim under the applicable State workmen's compensation
law, a claimant for benefits under this part must diligently prosecute
such State claim.
(d) Where, but for the failure to file a claim under the applicable
State workmen's compensation law, an individual's claim for benefits
under this part would be allowed, the Administration shall notify the
individual in writing of the need to file such State claim as a
prerequisite to such allowance. Such claim, when filed within 30 days of
the date such notice is mailed to the individual, will be considered to
have been filed timely.
(e) Where, on the other hand, a claim has not been filed under the
applicable State workmen's compensation law, and the Administration
determines that a claim for benefits under this part would be disallowed
even if such a State claim were filed, the Administration shall make
such determination as may be necessary for the adjudication of the
individual's claim for benefits under this part pursuant to
Sec. 410.610.
[36 FR 23752, Dec. 14, 1971; 36 FR 24214, Dec. 22, 1971. Redesignated at
37 FR 20636, Sept. 30, 1972]
Sec. 410.220 Claim for benefits; definitions.
For purposes of this part:
(a) Claim defined. The term claim means a writing asserting a right
to benefits by an individual, or by a proper party on his behalf as
defined in Sec. 410.222, which writing is filed with the Administration
in accordance with the regulations in this subpart.
(b) Application defined. The term application refers only to a
writing on a form prescribed in Sec. 410.221.
(c) Claimant defined. The term claimant refers to the individual who
has filed a claim for benefits on his own behalf, or on whose behalf a
proper party as defined in Sec. 410.222 has filed a claim.
(d) Applicant defined. The term applicant refers to the individual
who has filed an application on his own behalf, or on behalf of another,
for benefits.
[[Page 529]]
(e) Execution of claim defined. The term to execute a claim means to
complete and sign an application (but, for an exception, see
Sec. 410.234). Irrespective of who may have prepared or completed the
application, it is considered to have been executed by or on behalf of
the claimant when it is signed by him or by an individual authorized to
do so on his behalf (see Sec. 410.222).
(f) Provisions with respect to claims applicable with respect to
requests. The provisions of Secs. 410.222 through 410.234 (relating to
the preparation, execution, or filing of a claim for benefits) are
applicable to the preparation, execution, and filing of a written
request required under this part, e.g., a request to be selected as
representative payee (see Sec. 410.581 et seq.), a request for separate
payment of an augmentation (see Sec. 410.511), a request for
reconsideration (see Sec. 410.622), etc. In such cases, the term
claimant as used therein refers to the individual filing the request on
his own behalf or the individual on whose behalf such request is filed.
[36 FR 23752, Dec. 14, 1971, as amended at 37 FR 20637, Sept. 30, 1972]
Sec. 410.221 Prescribed application and request forms.
(a) Claims shall be made as provided in this subpart on such
application forms and in accordance with such instructions (provided
thereon or attached thereto) as are prescribed by the Administration.
(b) The application forms used by the public to file claims for
benefits under part B of title IV of the Act are SSA-46 (application for
benefits under the Federal Coal Mine Health and Safety Act of 1969 (coal
miner's claim of total disability)), SSA-47 (application for benefits
under the Federal Coal Mine Health and Safety Act of 1969 (widow's
claim)), SSA-48 (application for benefits under the Black Lung Benefits
Act of 1972 (child's claim)), and SSA-49 (application for benefits under
the Black Lung Act of 1972 (parent's, brother's, or sister's claim)).
(c) The form used by an individual to request that such individual
be selected as a representative payee or by a dependent to request that
payment be certified to him separately is SSA-50 (Request to be Selected
as Payee).
(d) For further information about some of the forms used in the
administration of part B of title IV of the Act, see Secs. 422.505(b),
422.515, 422.525, and 422.527 of this chapter.
[37 FR 20637, Sept. 30, 1972]
Sec. 410.222 Execution of a claim.
The Administration determines who is the proper party to execute a
claim in accordance with the following rules:
(a) If the claimant has attained the age of 18, is mentally
competent, and is physically able to execute the claim, the claim shall
be executed by him. Where, however, paragraph (d) of this section
applies, the claim may also be executed by the claimant's legal
guardian, committee, or other representative.
(b) If the claimant is between the ages of 16 and 18, is mentally
competent, has no legally appointed guardian, committee, or other
representative, and is not in the care of any person, such claimant may
execute the claim upon filing a statement on the prescribed form
indicating capacity to act on his own behalf.
(c) If the claimant is mentally competent but has not attained age
18 and is in the care of a person, the claim may be executed by such
person.
(d) If the claimant (regardless of his age) has a legally appointed
guardian, committee, or other representative, the claim may be executed
by such guardian committee, or representative.
(e) If the claimant (regardless of his age) is mentally incompetent
or is physically unable to execute the claim, it may be executed by the
person who has the claimant in his care or by a legally appointed
guardian, committee, or other representative.
(f) Where the claimant is in the care of an institution and is not
mentally competent or physically able to execute a claim, the manager or
principal officer of such institution may execute the claim.
(g) For good cause shown, the Administration may accept a claim
executed by a person other than one described in paragraph (a), (b),
(c), (d), (e), or (f) of this section.
[37 FR 20637, Sept. 30, 1972]
[[Page 530]]
Sec. 410.223 Evidence of authority to execute a claim on behalf of another.
Where the claim is executed by a person other than the claimant,
such person shall, at the time of filing the claim or within a
reasonable time thereafter, file evidence of his authority to execute
the claim on behalf of such claimant in accordance with the following
rules:
(a) If the person executing the claim is the legally appointed
guardian, committee, or other legal representative of such claimant, the
evidence shall be a certificate executed by the proper official of the
court of appointment.
(b) If the person executing the claim is not such a legal
representative, the evidence shall be a statement describing his
relationship to the claimant, the extent to which he has the care of
such claimant, or his position as an officer of the institution of which
the claimant is an inmate. The Administration may, at any time, require
additional evidence to establish the authority of any such person.
Sec. 410.224 Claimant must be alive when claim is filed.
For a claim to be effective, the claimant must be alive at the time
a properly executed claim (see Sec. 410.222) is filed with the
Administration (see Sec. 410.227). (See Secs. 410.229 and 410.230
concerning the filing of a prescribed application form after submittal
of a written statement.)
Sec. 410.226 Periods for which claims are effective.
(a) Application effective for entire month of filing. Benefits are
payable for full calendar months. If the claimant meets all the
requirements for entitlement to benefits in the same calendar month in
which his application is filed, the application will be effective for
the whole month. If a miner dies in the first month for which he meets
all the requirements for entitlement to benefits, he will,
notwithstanding the provisions of Sec. 410.202(b), be considered to be
entitled to benefits for that month.
(b) Prospective life of claims. A claim which is filed before the
claimant meets all the requirements for entitlement to such benefits
will be deemed a valid claim if the claimant meets such requirements of
entitlement (1) before the Administration makes a final decision on such
claim or (2) if the claimant has timely requested judicial review of
such final decision before such review is completed. If the claimant
first meets the requirements for entitlement to benefits in a month
after the month of actual filing but before a final administrative or
judicial decision is rendered on his claim, his claim will be deemed to
have been effectively filed in such first month of entitlement.
(c) Retroactive life of claims. Except in the case of a claim for
benefits as a surviving child (see Sec. 410.212) a claim for benefits
has no retroactive effect. (See, however, Sec. 410.230.) Generally, a
claim for benefits for a surviving child is effective (depending on the
first month of eligibility) for up to 12 months preceding the month in
which such claim is filed. However, if such claim is filed before
December 1972, such claim may be effective retroactively (depending on
the first month of eligibility) to December 1969.
[37 FR 20637, Sept. 30, 1972]
Sec. 410.227 When a claim is considered to have been filed; time and place of filing.
(a) Date of receipt. Except as otherwise provided in this part, a
claim is considered to have been filed only as of the date it is
received at an office of the Administration or by an employee of the
Administration who is authorized to receive such claims.
(b) Date of mailing. If the claim is deposited in and transmitted by
the U.S. mail and the fixing of the date of delivery as the date of
filing would result in a loss or impairment of benefit rights, it will
be considered to have been filed as of the date of mailing. The date
appearing on the postmark (when available and legible) shall be prima
facie evidence of the date of mailing. If there is no postmark or it is
not legible, other evidence may be used to establish the mailing date.
[36 FR 23752, Dec. 14, 1971, as amended at 37 FR 20637, Sept. 30, 1972]
[[Page 531]]
Sec. 410.228 Requests and notices to be in writing.
Except as otherwise provided in this part, any request to the
Administration for a determination or a decision relating to a person's
right to benefits, the withdrawal of a claim, the cancellation of a
request for such withdrawal, or any notice provided for pursuant to the
regulations in this part 410, shall be in writing and shall be signed by
the person authorized to execute a claim under Sec. 410.222.
Sec. 410.229 When written statement is considered a claim; general.
(a) Written statement filed by claimant on his own behalf. Where an
individual files a written statement with the Administration (see
Sec. 410.227) which indicates an intention to claim benefits, and such
statement bears his signature or his mark properly witnessed, the filing
of such written statement, unless otherwise indicated by the regulations
in this part, shall be considered to be the filing of a claim for
benefits: Provided, That:
(1) The claimant or a proper party on his behalf (see Sec. 410.222)
executes a prescribed application form (see Sec. 410.221) that is filed
with the Administration during the claimant's lifetime and within the
period prescribed in paragraph (c)(1) of this section; or
(2) In the case of a claimant who dies prior to the filing of such
prescribed application form within the period prescribed in paragraph
(c)(1) of this section, a prescribed application form is filed with the
Administration within the period prescribed in paragraph (c)(2) of this
section by a party acting on behalf of the deceased claimant's estate.
(b) Written statement filed by individual on behalf of another. A
written statement filed by an individual which indicates an intention to
claim benefits on behalf of another person shall, unless otherwise
indicated thereon, be considered to be the filing of a claim for such
purposes: Provided, That:
(1) The written statement bears the signature (or mark properly
witnessed) of the individual filing the statement; and
(2) The individual filing the statement is the spouse of the
claimant on whose behalf the statement is being filed, or a proper party
to execute a claim on behalf of a claimant as determined by
Sec. 410.222; and
(3) Except as specified in Sec. 410.230, a prescribed application
form (see Sec. 410.221) is executed and filed in accordance with the
provisions of paragraph (a) (1) or (2) of this section.
(c) Period within which prescribed application form must be filed.
After the Administration has received from an individual a written
statement as described in paragraph (a) or (b) of this section:
(1) Notice in writing shall be sent to the claimant or to the
individual who submitted the written statement on his behalf, stating
that an initial determination will be made with respect to such written
statement if a prescribed application form executed by the claimant or
by a proper party on his behalf (see Sec. 410.222), is filed with the
Administration within 6 months from the date of such notice; or
(2) If the Administration is notified that the death of such
claimant occurred before the mailing of the notice described in
paragraph (c)(1) of this section, or within the 6-month period following
the mailing of such notice but before the filing of a prescribed
application form by or on behalf of such individual, notification in
writing shall be sent to a person acting on behalf of his estate, or to
the deceased's last known address. Such notification will include
information that an initial determination with respect to such written
statement will be made only if a prescribed application form is filed
within 6 months from the date of such notification.
(3) If, after the notice as described in this paragraph (c) has been
sent, a prescribed application form is not filed (in accordance with the
provisions of paragraph (a) or (b) of this section) within the
applicable period prescribed in paragraph (c)(1) or (c)(2) of this
section, it will be deemed that the filing of the written statement to
which such notice refers is not to be considered the filing of a claim
for the purposes set forth in paragraphs (a) and (b) of this section.
[36 FR 23752, Dec. 14, 1971, as amended at 39 FR 41525, Nov. 29, 1974]
[[Page 532]]
Sec. 410.230 Written statement filed by or for a miner on behalf of a member of his family.
Notwithstanding the provisions of Sec. 410.229, the Social Security
Administration will take no action with respect to a written statement
filed by or for a miner on behalf of a member of his family until such
miner's death. At such time, the provisions of Sec. 410.229 shall apply
as if such miner's claim on behalf of a member of his family had been
filed on the day of the miner's death. However, for purposes of paying
benefits to an otherwise entitled survivor of a miner, such written
statement will be considered to be a valid claim for benefits (see
Secs. 410.210(c) and 410.212(a)(2)) where such member of his family
qualified as a dependent for purposes of augmentation of the miner's
benefits prior to his death. In such case the member of his family is
not required to file a prescribed application form (see Sec. 410.221)
with the Social Security Administration (see Sec. 410.229(b)).
Nevertheless, the survivor beneficiary may be required to furnish
supplemental information within 6 months of notification to do so. If
such beneficiary fails to furnish the information requested within 6
months of notice to do so, benefits may be suspended, after notice of
such proposed action and opportunity to be heard is provided the
beneficiary. A subsequent determination to suspend benefits shall be an
initial determination (see Sec. 410.610).
[39 FR 41525, Nov. 29, 1974]
Sec. 410.231 Time limits for filing claims.
(a) A claim by or on behalf of a miner must be filed on or before
December 31, 1973, and when so filed, is a claim for benefits under part
B of title IV of the Act. (See Sec. 410.227 for when a claim is
considered to have been filed. See also Sec. 410.202(c) for the duration
of entitlement to benefits of a miner based on a claim for such benefits
which is filed after June 30, 1973, and before January 1, 1974.)
(b) In the case of a miner who was entitled to benefits for the
month before the month of his death, or died in the first month for
which he met all the requirements for entitlement (see Sec. 410.226), a
claim for benefits by or on behalf of the widow, child, parent, brother,
or sister of a miner must be filed by December 31, 1973, or within 6
months after the miner's death, whichever is later. When so filed, it
constitutes a claim for benefits under part B of title IV of the Act.
(c) In the case of a miner who was not entitled to benefits for the
month before the month of his death, and whose death occurred prior to
January 1, 1974, a claim for benefits by or on behalf of the widow,
child, parent, brother, or sister of a miner must be filed by December
31, 1973, or, in the case of the death of a miner occurring after June
30, 1973, and before January 1, 1974, within 6 months of such miner's
death. When so filed, it constitutes a claim for benefits under part B
of title IV of the Act.
(d) Notwithstanding the provisions of paragraphs (b) and (c) of this
section, if a widow established entitlement to benefits under this part
(see Sec. 410.210), a claim by or on behalf of a surviving child of a
miner or of such widow, must be filed within 6 months after the death of
such miner or of such widow, or by December 31, 1973, whichever is the
later.
[37 FR 20637, Sept. 30, 1972]
Sec. 410.232 Withdrawal of a claim.
(a) Before adjudication of claim. A claimant (or an individual who
is authorized to execute a claim on his behalf under Sec. 410.222), may
withdraw his previously filed claim provided that:
(1) He files a written request for withdrawal.
(2) The claimant is alive at the time the request for withdrawal is
filed,
(3) The Administration approves the request for withdrawal, and
(4) The request for withdrawal is filed on or before the date the
Administration makes a determination on the claim.
(b) After adjudication of claim. A claim for benefits may be
withdrawn by a written request filed after the date the Administration
makes a determination on the claim provided that:
(1) The conditions enumerated in paragraphs (a) (1) through (3) of
this section are met; and
(2) There is repayment of the amount of benefits previously paid
because of
[[Page 533]]
claim that is being withdrawn or it can be established to the
satisfaction of the Administration that repayment of any such amount is
assured.
(c) Effect of withdrawal of claim. Where a request for withdrawal of
a claim is filed and such request for withdrawal is approved by the
Administration, such claim will be deemed not to have been filed. After
the withdrawal (whether made before or after the date the Administration
makes a determination) further action will be taken by the
Administration only upon the filing of a new claim, except as provided
in Sec. 410.233.
Sec. 410.233 Cancellation of a request for withdrawal.
Before or after a written request for withdrawal has been approved
by the Administration, the claimant (or a person who is authorized under
Sec. 410.222 to execute a claim on his behalf) may request that the
``request for withdrawal'' be canceled and that the withdrawn claim be
reinstated. Such request for cancellation must be in writing and must be
filed, in a case where the requested withdrawal was approved by the
Administration, no later than 60 days after such approval. The claimant
must be alive at the time the request for cancellation of the ``request
for withdrawal'' is filed with the Administration.
Sec. 410.234 Interim provisions.
(a) Notwithstanding any other provision of this subpart, a written
request for benefits which is filed before January 31, 1972, and which
meets the requirements of this subpart except for the filing of a
prescribed application form, shall be considered a claim for benefits.
Nevertheless, where a prescribed application form has not been filed,
the Administration may require that such a form be completed and filed
before adjudicating the claim. (See Sec. 410.240(a).)
(b) Notwithstanding any other provision of this part, where (1) a
request has been made before the effective date of this regulation that
a claim for benefits be withdrawn and (2) such request has been approved
(see Sec. 410.232), such claim may nevertheless be reinstated and
adjudicated under the provisions of the Black Lung Benefits Act of 1972
(Pub. L. 92-303).
[37 FR 20638, Sept. 30, 1972]
Sec. 410.240 Evidence.
(a) Evidence of eligibility. A claimant for benefits shall submit
such evidence of eligibility as is specified in this section. The
Administration may at any time require additional evidence to be
submitted with regard to entitlement or the right to receive payment.
(b) Insufficient evidence of eligibility. Whenever a claimant for
benefits has submitted no evidence or insufficient evidence of
eligibility, the Administration will inform the claimant what evidence
is necessary for a determination of eligibility and will request him to
submit such evidence within a specified reasonable time which may be
extended for a further reasonable time upon the claimant's request.
(c) Reports by beneficiary; evidence of nonoccurrence of
termination, suspension, or reduction event. Any individual entitled to
a benefit who is aware of any circumstance which, under the provisions
of this part could affect his entitlement to benefits, his eligibility
for payment, or the amount of his benefit, or result in the termination,
suspension, or reduction of his benefit, shall promptly report such
circumstance to the Administration. The Administration may at any time
require an individual receiving, or claiming that he is entitled to
receive, a benefit, either on behalf of himself or on behalf of another,
to submit a written statement giving pertinent information bearing upon
the issue of whether or not an event has occurred which would cause such
benefit to be terminated, or which would subject such benefit to
reductions or suspension under the provisions of the Act. The failure on
the part of such individual to submit any such report or statement,
properly executed, to the Administration, shall subject such benefit to
reductions, suspension, or termination, as the case may be.
(d) Place and manner of submitting evidence. Evidence in support of
a claim shall be filed at an office of the Administration or with an
employee of the Administration authorized to receive such evidence at a
place other than
[[Page 534]]
such office. Such evidence may be submitted as part of a prescribed
application form if the form provides for its inclusion, or it may be
submitted in addition to such prescribed form and in the manner
indicated in this section.
(e) Certification of evidence by authorized individual. In cases
where a copy of a record, document, or other evidence, or an excerpt of
information therefrom, is acceptable as evidence in lieu of the
original, such copy or excerpt shall, except as may otherwise clearly be
indicated thereon, be certified as a true and exact copy or excerpt by
the official custodian of any such record or by an employee of the
Administration authorized to make certifications of any such evidence.
(f) Evidence of total disability or death due to pneumoconiosis. For
evidence requirements to support allegations of total disability or
death due to pneumoconiosis; for the effect of the failure or refusal of
an individual to present himself for an examination or test in
connection with the alleged disability, or to submit evidence of
disability; and for evidence as to the cessation of disability, see
subpart D of this part 410.
(g) Evidence of matters other than total disability or death due to
pneumoconiosis. With respect to the following matters, evidence shall be
submitted in accordance with the provisions of Regulations No. 4 (part
404 of this chapter) cited hereinafter, as if the claim for benefits
under the Act were an application for benefits under section 202 of the
Social Security Act. Evidence as to:
(1) Age: Section 404.703 of this chapter;
(2) Death: Sections 404.704, 404.705 of this chapter;
(3) Marriage and termination of marriage: Sections 404.706 through
404.709 of this chapter;
(4) Relationship of parent and child: Sections 404.711 through
404.715 of this chapter;
(5) Domicile: Section 404.716 of this chapter;
(6) ``Living with'' or ``member of the same household'': Section
404.716a of this chapter.
(h) Reimbursement for reasonable expenses in obtaining medical
evidence. Claimants for benefits under this part shall be reimbursed
promptly for reasonable medical expenses incurred by them for services
from medical sources of their choice, in establishing their claims,
including the reasonable and necessary cost of travel incident thereto.
A medical expense generally is not ``reasonable'' when the medical
evidence for which the expense was incurred is of no value in the
adjudication of a claim. Medical evidence will then be considered to be
of ``no value'' when, for instance, it is wholly duplicative or when it
is wholly extraneous to the medical issue of whether the claimant is
disabled or died due to pneumoconiosis. In order to minimize
inconvenience and possible expense to the claimant, he should not
generally incur any medical expense for which he intends to claim
reimbursement without first contacting the district office to determine
what types of evidence not already available to the Administration may
be useful in adjudicating his claim, what types of medical evidence may
be reimbursable, and what would constitute a ``reasonable medical
expense'' in a given case. However, a claimant's failure to contact the
Administration before the expense is incurred will not preclude the
Administration from later approving reimbursal for any reasonable
medical expense. Where a reasonable expense for medical evidence is
ascertained, the Administration may authorize direct payment to the
provider of such evidence.
[36 FR 23752, Dec. 14, 1971, as amended at 37 FR 20638, Sept. 30, 1972]
Sec. 410.250 Effect of conviction of felonious and intentional homicide on entitlement to benefits.
An individual who has been finally convicted by a court of competent
jurisdiction of the felonious and intentional homicide of a miner or of
a widow shall not be entitled to receive any benefits payable because of
the death of such miner or widow, and such felon shall be considered
nonexistent in determining the entitlement to benefits of other
individuals with respect to such miner or widow.
[37 FR 20638, Sept. 30, 1972]
[[Page 535]]
Subpart C--Relationship and Dependency
Authority: Secs. 402, 412(a), 426(a), and 508, 83 Stat. 792; 30
U.S.C. 902, 922(a), 936, and 957.
Sec. 410.300 Relationship and dependency; general.
(a) In order to establish entitlement to benefits, a widow, child,
parent, brother, or sister must meet relationship and dependency
requirements with respect to the miner or widow, as applicable,
prescribed by or pursuant to the Act.
(b) In order for an entitled miner or widow to qualify for augmented
benefits because of one or more dependents (see Sec. 410.510(c)), such
dependents must meet relationship and dependency requirements with
respect to such beneficiary prescribed by or pursuant to the Act.
(c) References in Secs. 410.310(c), 410.320(c), 410.330(d), and
410.340, to the ``same right to share in the intestate personal
property'' of a deceased miner (or widow), refer to the right of an
individual to share in such distribution in his own right and not by
right of representation.
[37 FR 20638, Sept. 30, 1972]
Sec. 410.310 Determination of relationship; wife.
An individual will be considered to be the wife of a miner if:
(a) The courts of the State in which such miner is domiciled (see
Sec. 410.392) would find that such individual and the miner were validly
married; or
(b) The courts of the State in which such miner is domiciled (see
Sec. 410.392) would find, under the law they would apply in determining
the devolution of the miner's intestate personal property, that the
individual is the miner's wife; or
(c) Under State law, such individual has the same right she would
have if she were the wife to share in the miner's intestate personal
property; or
(d)(1) Such individual went through a marriage ceremony with the
miner resulting in a purported marriage between them and which, but for
a legal impediment (see Sec. 410.391), would have been a valid marriage.
However, such purported marriage shall not be considered a valid
marriage if such individual entered into the purported marriage with
knowledge that it was not a valid marriage, or if such individual and
the miner were not living in the same household (see Sec. 410.393) in
the month in which there is filed a request that the miner's benefits be
augmented because such individual qualifies as his wife (see
Sec. 410.510(c)). The provisions of this paragraph shall not apply,
however, if the miner's benefits are or have been augmented under
Sec. 410.510(c) because another person qualifies or has qualified as his
wife and such other person is, or is considered to be, the wife of such
miner under paragraph (a), (b), or (c) of this section at the time such
request is filed.
(2) The qualification for augmentation purposes of an individual who
would not be considered to be the wife of such miner but for this
paragraph (d), shall end with the month before the month in which (i)
the Administration determines that the benefits of the miner should be
augmented on account of another person, if such other person is (or is
considered to be) the wife of such miner under paragraph (a), (b), or
(c) of this section, or (ii) if the individual who previously qualified
as a wife for purposes of Sec. 410.510(c), entered into a marriage valid
without regard to this paragraph, with a person other than such miner.
[36 FR 23756, Dec. 14, 1971, as amended at 37 FR 20638, Sept. 30, 1972]
Sec. 410.311 Determination of relationship; divorced wife.
An individual will be considered to be the divorced wife of a miner
if her marriage to such miner has been terminated by a final divorce on
or after the 20th anniversary of the marriage: Provided, That if she was
married to and divorced from him more than once, she was married to him
in each calendar year of the period beginning 20 years immediately
before the date on which any divorce became final and ending with the
year in which that divorce became final.
[37 FR 20638, Sept. 30, 1972]
[[Page 536]]
Sec. 410.320 Determination of relationship; widow.
An individual will be considered to be the widow of a miner if:
(a) The courts of the State in which such miner was domiciled (see
Sec. 410.392) at the time of his death would find that the individual
and the miner were validly married; or
(b) The courts of the State in which such miner was domiciled (see
Sec. 410.392) at the time of his death would find, under the law they
would apply in determining the devolution of the miner's intestate
personal property, that the individual was the miner's widow; or
(c) Under State law, such individual has the same right she would
have as if she were the miner's widow to share in the miner's intestate
personal property; or
(d) Such individual went through a marriage ceremony with the miner
resulting in a purported marriage between them and which, but for a
legal impediment (see Sec. 410.391) would have been a valid marriage.
However, such purported marriage shall not be considered a valid
marriage if such individual entered into the purported marriage with
knowledge that it was not a valid marriage, or if such individual and
the miner were not living in the same household (see Sec. 410.393) at
the time of the miner's death. The provisions of this paragraph shall
not apply if another person is or has been entitled to benefits as the
widow of the miner and such other person is, or is considered to be, the
widow of such miner under paragraph (a), (b), or (c) of this section at
the time such individual files her claim for benefits.
[36 FR 23756, Dec. 14, 1971, as amended at 37 FR 20638, Sept. 30, 1972]
Sec. 410.321 Determination of relationship; surviving divorced wife.
An individual will be considered to be the surviving divorced wife
of a deceased miner if her marriage to such miner had been terminated by
a final divorce on or after the 20th anniversary of the marriage:
Provided, That, if she was married to and divorced from him more than
once, she was married to him in each calendar year of the period
beginning 20 years immediately before the date on which any divorce
became final and ending with the year in which that divorce became
final.
[37 FR 20639, Sept. 30, 1972]
Sec. 410.330 Determination of relationship; child.
As used in this section, the term beneficiary means only a widow
entitled to benefits at the time of her death (see Sec. 410.211), or a
miner, except where there is a specific reference to the ``father''
only, in which case it means only a miner. An individual will be
considered to be the child of a beneficiary if:
(a) The courts of the State in which such beneficiary is domiciled
(see Sec. 410.392) would find, under the law they would apply in
determining the devolution of the beneficiary's intestate personal
property, that the individual is the beneficiary's child; or
(b) Such individual is the legally adopted child of such
beneficiary; or
(c) Such individual is the stepchild of such beneficiary by reason
of a valid marriage of his parent or adopting parent to such
beneficiary; or
(d) Such individual does not bear the relationship of child to such
beneficiary under paragraph (a), (b), or (c) of this section, but would,
under State law, have the same right as a child to share in the
beneficiary's intestate personal property; or
(e) Such individual is the natural son or daughter of a beneficiary
but does not bear the relationship of child to such beneficiary under
paragraph (a), (b), or (c) of this section, and is not considered to be
the child of the beneficiary under paragraph (d) of
[[Page 537]]
this section, such individual shall nevertheless be considered to be the
child of such beneficiary if the beneficiary and the mother or the
father, as the case may be, of such individual went through a marriage
ceremony resulting in a purported marriage between them which, but for a
legal impediment (see Sec. 410.391), would have been a valid marriage.
(f) Such individual is the natural son or daughter of a beneficiary
but does not have the relationship of child to such beneficiary under
paragraph (a), (b), or (c) of this section, and is not considered to be
the child of the beneficiary under paragraph (d) or (e) of this section,
such individual shall nevertheless be considered to be the child of such
beneficiary if:
(1) Such beneficiary, prior to his entitlement to benefits, has
acknowledged in writing that the individual is his son or daughter, or
has been decreed by a court to be the father of the individual, or he
has been ordered by a court to contribute to the support of the
individual (see Sec. 410.395(c)) because the individual is his son or
daughter; or
(2) Such beneficiary is shown by satisfactory evidence to be the
father of the individual and was living with or contributing to the
support of the individual at the time such beneficiary became entitled
to benefits.
(g) Such individual is the natural son or daughter of a beneficiary
but does not have the relationship of child to such beneficiary under
paragraph (a), (b), or (c) of this section, and is not considered to be
the child of the beneficiary under paragraph (d) or (e) of this section,
such individual shall nevertheless be considered to be the child of such
beneficiary for months no earlier than June 1974, if:
(1) Such beneficiary has acknowledged in writing that the individual
is his son or daughter, or has been decreed by a court to be the father
of the individual, or he has been ordered by a court to contribute to
the support of the individual (see Sec. 410.395(c)) because the
individual is his son or daughter; and in the case of a deceased
individual such acknowledgement, court decree, or court order was made
before the death of such beneficiary; or
(2) Such beneficiary is shown by satisfactory evidence to be the
father of the individual and was living with or contributing to the
support of the individual at the time such request for benefits is made.
[36 FR 23756, Dec. 14, 1971, as amended at 37 FR 20639, Sept. 30, 1972;
41 FR 33550, Aug. 10, 1976]
Sec. 410.340 Determination of relationship; parent, brother, or sister.
An individual will be considered to be the parent, brother, or
sister of a miner if the courts of the State in which such miner was
domiciled (see Sec. 410.392) at the time of his death would find, under
the law they would apply in determining the devolution of the miner's
intestate personal property, that the individual is the miner's parent,
brother, or sister. Where, under such law, the individual does not bear
the relationship to the miner of parent, brother, or sister, but would,
under State law, have the same status (i.e., right to share in the
miner's intestate personal property) as a parent, brother, or sister,
the individual will be deemed to be such. An individual will be
considered to be the parent, brother, or sister of a miner if the
individual is the stepparent, stepbrother, stepsister, half brother, or
half sister of the miner, or is the parent, brother, or sister of the
miner by adoption.
[37 FR 20639, Sept. 30, 1972]
Sec. 410.350 Determination of dependency; wife.
An individual who is the miner's wife (see Sec. 410.310) will be
determined to be dependent upon the miner if:
(a) She is a member of the same household as the miner (see
Sec. 410.393); or
(b) She is receiving regular contributions from the miner for her
support (see Sec. 410.395(c)); or
(c) The miner has been ordered by a court to contribute to her
support (see Sec. 410.395(e)); or
(d) She is the natural mother of the son or daughter of the miner;
or
(e) She was married to the miner (see Sec. 410.310) for a period of
not less than 1 year.
[37 FR 20639, Sept. 30, 1972]
Sec. 410.351 Determination of dependency; divorced wife.
An individual who is the miner's divorced wife (see Sec. 410.311)
will be determined to be dependent upon the miner if:
(a) She is receiving at least one-half of her support from the miner
(see Sec. 410.395(g)); or
(b) She is receiving substantial contributions from the miner
pursuant to a written agreement (see Sec. 410.395 (c) and (f)); or
[[Page 538]]
(c) There is in effect a court order for substantial contributions
to her support to be furnished by such miner (see Sec. 410.395 (c) and
(e)).
[37 FR 20639, Sept. 30, 1972]
Sec. 410.360 Determination of dependency; widow.
(a) General. An individual who is the miner's widow (see
Sec. 410.320) will be determined to have been dependent on the miner if,
at the time of the miner's death:
(1) She was living with the miner (see Sec. 410.393); or
(2) She was dependent upon the miner for support or the miner has
been ordered by a court to contribute to her support (see Sec. 410.395);
or
(3) She was living apart from the miner because of his desertion or
other reasonable cause; or
(4) She is the natural mother of his son or daughter; or
(5) She had legally adopted his son or daughter while she was
married to him and while such son or daughter was under the age of 18;
or
(6) He had legally adopted her son or daughter while she was married
to him and while such son or daughter was under the age of 18; or
(7) She was married to him at the time both of them legally adopted
a child under the age of 18; or
(8) She was married to him for a period of not less than 9 months
immediately prior to the day on which he died (but see paragraph (b) of
this section).
(b) Waiver of 9-month requirement--(1) General. Except as provided
in paragraph (b)(3) of this section, the requirement in paragraph (a)(8)
of this section that the surviving spouse of a miner must have been
married to him for a period of not less than 9 months immediately prior
to the day on which he died in order to qualify as such miner's widow,
shall be deemed to be satisfied where such miner dies within the
applicable 9-month period, if his death:
(i) Is accidental (as defined in paragraph (b)(2) of this section),
or
(ii) Occurs in line of duty while he is a member of a uniformed
service serving on active duty (as defined in Sec. 404.1013 (f) (2) and
(3) of this chapter), and such surviving spouse was married to such
miner for a period of not less than 3 months immediately prior to the
day on which he died.
(2) Accidental death. For purposes of paragraph (b)(1)(i) of this
section, the death of a miner is accidental if such individual receives
bodily injuries solely through violent, external, and accidental means
and, as a direct result of the bodily injuries and independently of all
other causes, loses his life not later than 3 months after the day on
which he receives such bodily injuries. The term accident means an event
that was unpremeditated and unforeseen from the standpoint of the
deceased individual. To determine whether the death of an individual
did, in fact, result from an accident the Administration will consider
all the circumstances surrounding the casualty. An intentional and
voluntary suicide will not be considered to be death by accident;
however, suicide by an individual who is so insane as to be incapable of
acting intentionally and voluntarily will be considered to be death by
accident. In no event will the death of an individual resulting from
violent and external causes be considered a suicide unless there is
direct proof that the fatal injury was self-inflicted.
(3) Applicability. The provisions of this paragraph shall not apply
if the Administration determines that at the time of the marriage
involved, the miner could not reasonably have been expected to live for
9 months.
[37 FR 20639, Sept. 30, 1972]
Sec. 410.361 Determination of dependency; surviving divorced wife.
An individual who is the miner's surviving divorced wife (see
Sec. 410.321) will be determined to have been dependent on the miner if,
for the month preceding the month in which the miner died:
(a) She was receiving at least one-half of her support from the
miner (see Sec. 410.395(g)); or
(b) She was receiving substantial contributions from the miner
pursuant to a written agreement (see Sec. 410.395 (c) and (f)); or
(c) There was in effect a court order for substantial contributions
to her
[[Page 539]]
support to be furnished by such miner (see Sec. 410.395 (c) and (e)).
[37 FR 20639, Sept. 30, 1972]
Sec. 410.370 Determination of dependency; child.
For purposes of augmenting the benefits of a miner or widow (see
Sec. 410.510 (c)), the term beneficiary as used in this section means
only a miner or widow entitled to benefits (see Secs. 410.201 and
410.210); or, for purposes of an individual's entitlement to benefits as
a surviving child (see Sec. 410.212), the term beneficiary as used in
this section means only a deceased miner (see Sec. 410.200) or a
deceased widow who was entitled to benefits for the month prior to the
month of her death (see Secs. 410.210 and 410.211). An individual who is
the beneficiary's child (see Sec. 410.330) will, as applicable, be
determined to be, or to have been, dependent on the beneficiary, if the
child:
(a) Is unmarried; and
(b)(1) Is under 18 years of age; or
(2) Is 18 years of age or older and is under a disability as defined
in section 223(d) of the Social Security Act, 42 U.S.C. 423(d) (see
subpart P of part 404 of this chapter). For purposes of entitlement to
benefits as a surviving child (see Sec. 410.212), such disability must
have begun:
(i) Before the child attained age 22; however, no entitlement to
child's benefits may be established for any month before January 1973,
based on a disability which began after attainment of age 18; or
(ii) In the case of a student, before he ceased to be a student (see
paragraph (c) of this section); or
(3) Is 18 years of age or older and is a student.
(c)(1) The term student means a full-time student as defined in
section 202(d)(7) of the Social Security Act, 42 U.S.C. 402(d)(7) (see
Sec. 404.320(c) of this chapter), or an individual under 23 years of age
who has not completed 4 years of education beyond the high school level
and who is regularly pursuing a full-time course of study or training at
an institution which is:
(i) A school, college, or university operated or directly supported
by the United States, or by a State or local government or political
subdivision thereof; or
(ii) A school, college, or university which has been accredited by a
State or by a State-recognized or nationally recognized accrediting
agency or body; or
(iii) A school, college, or university not so accredited but whose
credits are accepted, on transfer, by at least three institutions which
are so accredited, for credit on the same basis as if transferred from
an institution so accredited; or
(iv) A technical, trade, vocational, business, or professional
school accredited or licensed by the Federal, or a State government or
any political subdivision thereof, providing courses of not less than 3
months' duration that prepare the student for a livelihood in a trade,
industry, vocation, or profession.
(2) A student will be considered to be ``pursuing a full-time course
of study or training at an institution'' if he is enrolled in a
noncorrespondence course and is carrying a subject load which is
considered full time for day students under the institution's standards
and practices. However, a student will not be considered to be
``pursuing a full-time course of study or training'' if he is enrolled
in a course of study or training of less than 13 school weeks' duration.
A student beginning or ending a full-time course of study or training in
part of any month will be considered to be pursuing such course for the
entire month.
(3) A child is deemed not to have ceased to be a student:
(i) During any interim between school years, if the interim does not
exceed 4 months and he shows to the satisfaction of the Administration
that he has a bona fide intention of continuing to pursue a full-time
course of study or training during the semester or other enrollment
period immediately after the interim; or
(ii) During periods of reasonable duration during which, in the
judgment of the Administration, he is prevented by factors beyond his
control from pursuing his education.
(4) A student who completes 4 years of education beyond the high
school level, or whose 23rd birthday occurs
[[Page 540]]
during a semester or other enrollment period in which he is pursuing a
full-time course of study or training shall continue to be considered a
student for as long as he otherwise qualifies under this section until
the end of such period.
[37 FR 20639, Sept. 30, 1972, as amended at 41 FR 7091, Feb. 17, 1976]
Sec. 410.380 Determination of dependency; parent, brother, or sister.
An individual who is the miner's parent, brother, or sister (see
Sec. 410.340) will be determined to have been dependent on the miner if,
during the 1-year period immediately prior to such miner's death:
(a) Such individual and the miner were living in the same household
(see Sec. 410.393); and
(b) Such individual was totally dependent on the miner for support
(see Sec. 410.395(h)).
[37 FR 20640, Sept. 30, 1972]
Sec. 410.390 Time of determinations.
(a) Relationship and dependency of wife or child. With respect to
the wife or child of a miner entitled to benefits, and with respect to
the child of a widow entitled to benefits, the determination as to
whether an individual purporting to be a wife or child is related to or
dependent upon such miner or widow shall be based on the facts and
circumstances with respect to the period of time as to which such issue
of relationship or dependency is material. (See, for example,
Sec. 410.510(c).)
(b) Relationship and dependency of widow. The determination as to
whether an individual purporting to be the widow of a miner was related
to or dependent upon such miner is made after such individual
effectively files a claim for benefits (see Sec. 410.227) as a widow.
Such determination is based on the facts and circumstances with respect
to the time of the miner's death (except as provided in
Sec. 410.320(d)). A prior determination that such individual was
determined to be, or not to be, the wife of such miner, pursuant to
Secs. 410.310 and 410.350, for purposes of augmenting the miner's
benefits for a certain period (see Sec. 410.510(c)), is not
determinative of the issue of whether the individual is the widow of
such miner or of whether she was dependent on such miner.
(c) Relationship and dependency of surviving divorced wife. The
determination as to whether an individual purporting to be a surviving
divorced wife of a miner was related to or dependent upon such miner is
made when such individual effectively files a claim for benefits (see
Sec. 410.227) as a surviving divorced wife. Such determination is made
with respect to the time of the miner's death. A prior determination
that such individual was, or was not, the divorced wife of such miner,
pursuant to Secs. 410.311 and 410.351, for purposes of augmenting the
miner's benefits for a certain period (see Sec. 410.510(c)), is not
determinative of the issue of whether the individual is the surviving
divorced wife of such miner or of whether she was dependent on such
miner.
[37 FR 20640, Sept. 30, 1972]
Sec. 410.391 Legal impediment.
For purposes of this subpart C, legal impediment means an
impediment resulting from the lack of dissolution of a previous marriage
or otherwise arising out of such previous marriage or its dissolution,
or resulting from a defect in the procedure followed in connection with
the purported marriage ceremony--for example, the solemnization of a
marriage only through a religious ceremony in a country which requires a
civil ceremony for a valid marriage.
[36 FR 23756, Dec. 14, 1971]
Sec. 410.392 Domicile.
(a) For purposes of this subpart C, the term domicile means the
place of an individual's true, fixed, and permanent home to which,
whenever he is absent, he has the intention of returning.
(b) The domicile of a deceased miner or widow is determined as of
the time of his or her death.
(c) The domicile or a change in domicile of a beneficiary or other
individual is determined with respect to the period or periods of time
as to which the issue of domicile is material.
(d) If an individual was not domiciled in any State at the pertinent
time, the
[[Page 541]]
law of the District of Columbia is applied as if such individual were
then domiciled there.
[36 FR 23756, Dec. 14, 1971, as amended at 37 FR 20640, Sept. 30, 1972]
Sec. 410.393 ``Member of the same household''; ``living with''; ``living in the same household''; and ``living in the miner's household.''
(a) Defined. (1) The term member of the same household as used in
section 402(a)(2) of the Act (with respect to a wife); the term living
with as used in section 402(e) of the Act (with respect to a widow); and
the term living in the same household as used in Secs. 410.310(d) and
410.320(d) (with respect to certain wives and widows, respectively),
mean that a husband and wife were customarily living together as husband
and wife in the same place of abode.
(2) The term living in the miner's household as used in section
412(a)(5) of the Act (with respect to a parent, brother, or sister (see
Sec. 410.380)), means that the miner and such parent, brother, or
sister, were sharing the same residence.
(b) Temporary absence. The temporary absence from the same residence
of either the miner, or his wife, parent, brother, or sister (as the
case may be), does not preclude a finding that one was living with the
other, or that they were members of the same household, etc. The absence
of one such individual from the residence in which both had customarily
lived shall, in the absence of evidence to the contrary, be considered
temporary;
(1) If such absence was due to service in the Armed Forces of the
United States; or
(2) If the period of absence from his or her residence did not
exceed 6 months, and neither individual was outside the United States,
and the absence was due to business or employment reasons, or because of
confinement in a penal institution or in a hospital, nursing home, or
other curative institution; or
(3) In any other case, if the evidence establishes that despite such
absence they nevertheless reasonably expected to resume physically
living together at some time in the reasonably near future.
(c) Death during absence. Where the death of one of the parties
occurred while away from the residence for treatment or care of an
illness or an injury (e.g., in a hospital), the fact that the death was
foreseen as possible or probable does not in and of itself preclude a
finding that the parties were ``living with'' one another or were
``member[s] of the same household'' etc. at the time of death.
(d) Absences other than temporary. In situations other than those
described in paragraphs (b) and (c) of this section, the absence shall
not be considered temporary, and the parties may not be found to be
``living with'' one another or to be ``member[s] of the same household''
etc. A finding of temporary absence would not be justified where one of
the parties was committed to a penal institution for life or for a
period exceeding the reasonable life expectancy of either, or was under
a sentence of death; or where the parties had ceased to live in the same
place of abode because of marital or family difficulties and had not
resumed living together before death.
(e) Relevant period of time. (1) The determination as to whether a
widow had been ``living with'' her husband shall be based upon the facts
and circumstances as of the time of death of the miner.
(2) The determination as to whether a wife is a ``member of the same
household'' as her husband shall be based upon the facts and
circumstances with respect to the period or periods of time as to which
the issue of membership in the same household is material. (See
Sec. 410.510(c).)
(3) The determination as to whether a parent, brother, or sister was
``living in the miner's household'' shall take account only of the 1-
year period immediately prior to the miner's death. (See Sec. 410.380.)
[37 FR 20640, Sept. 30, 1972]
Sec. 410.394 [Reserved]
Sec. 410.395 Contributions and support.
(a) Support defined. The term support includes food, shelter,
clothing, ordinary medical expenses, and other ordinary and customary
items for the maintenance of the person supported.
[[Page 542]]
(b) Contributions defined. The term contributions refers to
contributions actually provided by the contributor from his own
property, or the use thereof, or by the use of his own credit.
(c) Regular contributions and substantial contributions defined. The
terms regular contributions and substantial contributions mean
contributions that are customary and sufficient to constitute a material
factor in the cost of the individual's support.
(d) Contributions and community property. When a wife receives, and
uses for her support, income from her services or property and such
income, under applicable State law, is the community property of herself
and the miner, no part of such income is a contribution by the miner to
his wife's support regardless of any legal interest the miner may have
therein. However, when a wife receives, and uses for her support, income
from the services and the property of the miner and, under applicable
State law, such income is community property, all of such income is
considered to be a contribution by the miner to his wife's support.
(e) Court order for support defined. References to support orders in
Secs. 410.330 (f)(1), 410.350(c), and 410.360(b) mean any court order,
judgment, or decree of a court of competent jurisdiction which requires
regular contributions that are a material factor in the cost of the
individual's support and which is in effect at the applicable time. If
such contributions are required by a court order, this condition is met
whether or not the contributions were actually made.
(f) Written agreement defined. The term written agreement in the
phrase substantial contributions * * * pursuant to a written agreement
(see Secs. 410.351 (b) and 410.361(b)) means an agreement signed by the
miner providing for substantial contributions by him for the
individual's support. It must be in effect at the applicable time but it
need not be legally enforceable.
(g) One-half support defined. The term one-half support means that
the miner made regular contributions, in cash or in kind, to the support
of a divorced wife (see Sec. 410.351(a)), or of a surviving divorced
wife (see Sec. 410.361 (a)), at the specified time or for the specified
period, and that the amount of such contributions equaled or exceeded
one-half the total cost of such individual's support at such time or
during such period.
(h) Totally dependent for support defined. The term totally
dependent on the miner for support as used in Sec. 410.380(b), means
that such miner made regular contributions to the support of his parent,
brother, or sister, as the case may be, and that the amount of such
contributions at least equaled the total cost of such individual's
support.
[37 FR 20641, Sept. 30, 1972]
Subpart D--Total Disability or Death Due to Pneumoconiosis
Sec. 410.401 Scope of subpart D.
(a) General. This subpart establishes the standards for determining
whether a coal miner is totally disabled due to pneumoconiosis, whether
he was totally disabled due to pneumoconiosis at the time of his death,
or whether his death was due to pneumoconiosis.
(b) Pneumoconiosis defined. Pneumoconiosis means:
(1) A chronic dust disease of the lung arising out of employment in
the Nation's coal mines, and includes coal workers' pneumoconiosis,
anthracosilicosis, anthracosis, anthrosilicosis, massive pulmonary
fibrosis, progressive massive fibrosis, silicosis, or
silicotuberculosis, arising out of such employment. For purposes of this
subpart, the term also includes the following conditions that may be the
basis for application of the statutory presumption of disability or
death due to pneumoconiosis under the circumstances prescribed in
section 411 (c) of the Act;
(2) Any other chronic respiratory or pulmonary impairment when the
conditions are met for the application of the presumption described in
Sec. 410.414(b) or Sec. 410.454(b), and
(3) Any respirable disease when the conditions are met for the
application of the presumption described in
[[Page 543]]
Sec. 410.462. The provisions for determining that a miner is or was
totally disabled due to pneumoconiosis or its sequelae are included in
Secs. 410.410 through 410.430 and in the Appendix following this subpart
D. The provisions for determining that a miner's death was due to
pneumoconiosis are included in Secs. 410.450 through 410.462. Certain
related provisions of general application are included in Secs. 410.470
through 410.476.
(c) Relation to the Social Security Act. Section 402(f) of the Act,
as amended, 30 U.S.C. 902(f), provides that regulations defining total
disability ``shall not provide more restrictive criteria than those
applicable under section 223(d) of the Social Security Act.'' Section
413(b) of the Act, 30 U.S.C. 923(b), also provides, in pertinent part,
that in ``carrying out the provisions of this part [that is, part B of
title IV of the Act], the Secretary [of Health, Education, and Welfare]
shall to the maximum extent feasible (and consistent with the provisions
of this part) utilize the * * * procedures he uses in determining
entitlement to disability insurance benefits under section 223 of the
Social Security Act * * *.''
Sec. 410.410 Total disability due to pneumoconiosis, including statutory presumption.
(a) Benefits are provided under the Act to coal miners ``who are
totally disabled due to pneumoconiosis arising out of employment in one
or more of the Nation's coal mines,'' and to the eligible survivors of
miners who are determined to have been totally disabled due to
pneumoconiosis at the time of their death. (For benefits to the eligible
survivors of miners whose deaths are determined to have been due to
pneumoconiosis, see Sec. 410.450.)
(b) To establish entitlement to benefits on the basis of a coal
miner's total disability due to pneumoconiosis, a claimant must submit
the evidence necessary to establish: (1) That he is a coal miner, that
he is totally disabled due to pneumoconiosis, and that his
pneumoconiosis arose out of employment in the Nation's coal mines; or
(2) that the deceased individual was a miner, that he was totally
disabled due to pneumoconiosis at the time of his death, and that his
pneumoconiosis arose out of employment in the Nation's coal mines.
(c) Total disability is defined in Sec. 410.412; the basic provision
on determining the existence of pneumoconiosis is in Sec. 410.414; and
the requirement that the pneumoconiosis must have arisen out of coal
mine employment is in Sec. 410.416. The statutory presumptions with
respect to the burden of proving the foregoing are in Secs. 410.414(b),
410.416(a), and 410.418, and the provision for determining the existence
of total disability when the presumption in Sec. 410.418 does not apply
is included in Sec. 410.422.
Sec. 410.412 ``Total disability'' defined.
(a) A miner shall be considered totally disabled due to
pneumoconiosis if:
(1) His pneumoconiosis prevents him from engaging in gainful work in
the immediate area of his residence requiring the skills and abilities
comparable to those of any work in a mine or mines in which he
previously engaged with some regularity and over a substantial period of
time (that is, ``comparable and gainful work''; see Secs. 410.424
through 410.426); and
(2) His impairment can be expected to result in death, or has lasted
or can be expected to last for a continuous period of not less than 12
months.
(b) A miner shall be considered to have been totally disabled due to
pneumoconiosis at the time of his death, if at the time of his death:
(1) His pneumoconiosis prevented him from engaging in gainful work
in the immediate area of his residence requiring the skills and
abilities comparable to those of any work in a mine or mines in which he
previously engaged with some regularity and over a substantial period of
time (that is, ``comparable and gainful work''; see Secs. 410.424
through 410.426); and
(2) His impairment was expected to result in death, or it lasted or
was expected to last for a continuous period of not less than 12 months.
[[Page 544]]
Sec. 410.414 Determining the existence of pneumoconiosis, including statutory presumption.
(a) General. A finding of the existence of pneumoconiosis as defined
in Sec. 410.110(o)(1) may be made under the provisions of Sec. 410.428
by:
(1) Chest roentgenogram (X-ray); or
(2) Biopsy; or
(3) Autopsy.
(b) Presumption relating to respiratory or pulmonary impairment. (1)
Even though the existence of pneumoconiosis is not established as
provided in paragraph (a) of this section, if other evidence
demonstrates the existence of a totally disabling chronic respiratory or
pulmonary impairment (see Secs. 410.412, 410.422, and 410.426), it may
be presumed, in the absence of evidence to the contrary (see paragraph
(b)(2) of this section), that a miner is totally disabled due to
pneumoconiosis, or that a miner was totally disabled due to
pneumoconiosis at the time of his death.
(2) This presumption may be rebutted only if it is established that
the miner does not, or did not, have pneumoconiosis, or that his
respiratory or pulmonary impairment did not arise out of, or in
connection with, employment in a coal mine.
(3) The provisions of this paragraph shall apply where a miner was
employed for 15 or more years in one or more of the Nation's underground
coal mines; in one or more of the Nation's other coal mines where the
environmental conditions were substantially similar to those in an
underground coal mine; or in any combination of both.
(4) However, where the evidence shows a work history reflecting many
years of such coal mine employment (although less than 15), as well as a
severe lung impairment, such evidence may be considered, in the exercise
of sound judgment, to establish entitlement in such case, provided that
a mere showing of a respiratory or pulmonary impairment shall not be
sufficient to establish such entitlement.
(c) Other relevant evidence. Even though the existence of
pneumoconiosis is not established as provided in paragraph (a) or (b) of
this section, a finding of total disability due to pneumoconiosis may be
made if other relevant evidence establishes the existence of a totally
disabling chronic respiratory or pulmonary impairment, and that such
impairment arose out of employment in a coal mine. As used in this
paragraph, the term other relevant evidence includes medical tests such
as blood gas studies, electrocardiogram, pulmonary function studies, or
physical performance tests, and any medical history, evidence submitted
by the miner's physician, his spouse's affidavits, and in the case of a
deceased miner, other appropriate affidavits of persons with knowledge
of the individual's physical condition, and other supportive materials.
In any event, no claim for benefits under part B of title IV of the Act
shall be denied solely on the basis of a negative chest roentgenogram
(X-ray).
Sec. 410.416 Determining origin of pneumoconiosis, including statutory presumption.
(a) If a miner was employed for 10 or more years in the Nation's
coal mines, and is suffering or suffered from pneumoconiosis, it will be
presumed, in the absence of persuasive evidence to the contrary, that
the pneumoconiosis arose out of such employment.
(b) In any other case, a miner who is suffering or suffered from
pneumoconiosis, must submit the evidence necessary to establish that the
pneumoconiosis arose out of employment in the Nation's coal mines. (See
Sec. 410.110(h), (i), (j), (k), (l), and (m).)
Sec. 410.418 Irrebuttable presumption of total disability due to pneumoconiosis.
There is an irrebuttable presumption that a miner is totally
disabled due to pneumoconiosis, or that a miner was totally disabled due
to pneumoconiosis at the time of his death, if he is suffering or
suffered from a chronic dust disease of the lung which:
(a) When diagnosed by chest roentgenogram (X-ray), yields one or
more large opacities (greater than 1 centimeter in diameter) and would
be classified in Category A, B, or C (that is, as complicated
pneumoconiosis), in:
(1) The ILO-U/C International Classification of Radiographs of
Pneumoconioses, 1971, or
[[Page 545]]
(2) The International Classification of the Radiographs of the
Pneumoconioses of the International Labour Office, Extended
Classification (1968) (which may be referred to as the ``ILO
Classification (1968)''), or
(3) The Classification of the Pneumoconiosis of the Union
Internationale Contra Cancer/Cincinnati (1968) (which may be referred to
as the ``UICC/Cincinnati (1968) Classification''); or
(b) When diagnosed by biopsy or autopsy, yields massive lesions in
the lung. The report of biopsy or autopsy will be accepted as evidence
of complicated pneumoconiosis if the histological findings show simple
pneumoconiosis and progressive massive fibrosis; or
(c) When established by diagnoses by means other than those
specified in paragraphs (a) and (b) of this section, would be a
condition which could reasonably be expected to yield the results
described in paragraph (a) or (b) of this section had diagnoses been
made as therein prescribed; Provided, however, That any diagnoses made
under this paragraph shall accord with generally accepted medical
procedures for diagnosing pneumoconiosis.
Sec. 410.422 Determining total disability: General criteria.
(a) A determination of total disability due to pneumoconiosis is
made in accordance with this section when a miner cannot be presumed to
be totally disabled due to pneumoconiosis (or to have been totally
disabled due to pneumoconiosis at the time of his death), under the
provisions of Sec. 410.418. In addition, when a miner has (or had) a
chronic respiratory or pulmonary impairment, a determination of whether
or not such impairment is (or was) totally disabling is also made in
accordance with this section for purposes of Sec. 410.414(b).
(b) A determination of total disability may not be made for purposes
of this part unless pneumoconiosis is (or is presumed to be) the
impairment involved.
(c) Whether or not the pneumoconiosis in a particular case renders
(or rendered) a miner totally disabled, as defined in Sec. 410.412, is
determined from all the facts of that case. Primary consideration is
given to the medical severity of the individual's pneumoconiosis (see
Sec. 410.424). Consideration is also given to such other factors as the
individual's age, education, and work experience (see Sec. 410.426).
Sec. 410.424 Determining total disability: Medical criteria only.
(a) Medical considerations alone shall justify a finding that a
miner is (or was) totally disabled where his impairment is one that
meets (or met) the duration requirement in Sec. 410.412(a)(2) or
Sec. 410.412(b)(2), and is listed in the Appendix to this subpart, or if
his impairment is medically the equivalent of a listed impairment.
However, medical considerations alone shall not justify a finding that
an individual is (or was) totally disabled if other evidence rebuts such
a finding, e.g., the individual is (or was) engaged in comparable and
gainful work (see Sec. 410.412).
(b) An individual's impairment shall be determined to be medically
the equivalent of an impairment listed in the appendix to this subpart
only if the medical findings with respect thereto are at least
equivalent in severity and duration to the listed findings of the listed
impairment. Any decision as to whether an individual's impairment is
medically the equivalent of an impairment listed in the Appendix to this
subpart, shall be based on medically accepted clinical and laboratory
diagnostic techniques, including a medical judgment furnished by one or
more physicians designated by the Administration, relative to the
question of medical equivalence.
Sec. 410.426 Determining total disability: Age, education, and work experience criteria.
(a) Pneumoconiosis which constitutes neither an impairment listed in
the appendix to this subpart (see Sec. 410.424), nor the medical
equivalent thereof, shall nevertheless be found totally disabling if
because of the severity of such impairment, the miner is (or was) not
only unable to do his previous coal mine work, but also cannot (or could
not), considering his age, his education, and work experience, engage
[[Page 546]]
in any other kind of comparable and gainful work (see
Sec. 410.412(a)(1)) available to him in the immediate area of his
residence. A miner shall be determined to be under a disability only if
his pneumoconiosis is (or was) the primary reason for his inability to
engage in such comparable and gainful work. Medical impairments other
than pneumoconiosis may not be considered.
The following criteria recognize that an impairment in the transfer
of oxygen from the lung alveoli to cellular level can exist in an
individual even though his chest roentgenogram (X-ray) or ventilatory
function tests are normal.
(b) Subject to the limitations in paragraph (a) of this section,
pneumoconiosis shall be found disabling if it is established that the
miner has (or had) a respiratory impairment because of pneumoconiosis
demonstrated on the basis of a ventilatory study in which the maximum
voluntary ventilation (MVV) or maximum breathing capacity (MBC), and 1-
second forced expiratory volume (FEV1), are equal to or less than
the values specified in the following table or by a medically equivalent
test:
------------------------------------------------------------------------
MVV
(MBC) FEV1
equal to equal to
Height (inches) or less or less
than L./ than I.
Min.
------------------------------------------------------------------------
57 or less.......................................... 52 1.4
58.................................................. 53 1.4
59.................................................. 54 1.4
60.................................................. 55 1.5
61.................................................. 56 1.5
62.................................................. 57 1.5
63.................................................. 58 1.5
64.................................................. 59 1.6
65.................................................. 60 1.6
66.................................................. 61 1.6
67.................................................. 62 1.7
68.................................................. 63 1.7
69.................................................. 64 1.8
70.................................................. 65 1.8
71.................................................. 66 1.8
72.................................................. 67 1.9
73 or more.......................................... 68 1.9
------------------------------------------------------------------------
(c) Where the values specified in paragraph (b) of this section are
not met, pneumoconiosis may nevertheless be found disabling if a
physical performance test establishes a chronic respiratory or pulmonary
impairment which is medically the equivalent of the values specified in
the table in paragraph (b) of this section. Any decision with respect to
such medical equivalence shall be based on medically accepted clinical
and laboratory diagnostic techniques including a medical judgment
furnished by one or more physicians designated by the Administration.
(d) Where a ventilatory study and/or a physical performance test is
medically contraindicated, or cannot be obtained, or where evidence
obtained as a result of such tests does not establish that the miner is
totally disabled, pneumoconiosis may nevertheless be found totally
disabling if other relevant evidence (see Sec. 410.414(c)) establishes
that the miner has (or had) a chronic respiratory or pulmonary
impairment, the severity of which prevents (or prevented) him not only
from doing his previous coal mine work, but also, considering his age,
his education, and work experience, prevents (or prevented) him from
engaging in comparable and gainful work.
(e) When used in this section, the term age refers to chronological
age and the extent to which it affects the miner's capacity to engage in
comparable and gainful work.
(f) When used in this section, the term education is used in the
following sense: Education and training are factors in determining the
employment capacity of a miner. Lack of formal schooling, however, is
not necessarily proof that a miner is an uneducated person. The kinds of
responsibilities with which he was charged when working may indicate
ability to do more than unskilled work even though his formal education
has been limited.
Sec. 410.428 X-ray, biopsy, and autopsy evidence of pneumoconiosis.
(a) A finding of the existence of pneumoconiosis as defined in
Sec. 410.110(o)(1) may be made under the provisions of Sec. 410.414(a)
if:
(1) A chest roentgenogram (X-ray) establishes the existence of
pneumoconiosis classified as Category 1, 2, 3, A, B, or C according to:
(i) The ILO-U/C International Classification of Radiographs of
Pneumoconioses, 1971; or
(ii) The International Classification of Radiographs of the
Pneumoconioses
[[Page 547]]
of the International Labour Office, Extended Classification (1968); or
(iii) The Classification of the Pneumoconioses of the Union
Internationale Contra Cancer/Cincinnati (1968).
A chest roentgenogram (X-ray) classified as Category Z under the ILO
Classification (1958) or Short Form (1968) will be reclassified as
Category 0 or Category 1 and only the latter accepted as evidence of
pneumoconiosis. A chest roentgenogram (X-ray) classified under any of
the foregoing classifications as Category 0, including subcategories o/-
, o/o, or o/1 under the UICC/Cincinnati (1968) Classification, is not
accepted as evidence of pneumoconiosis; or
(2) An autopsy shows the existence of pneumoconiosis, or
(3) A biopsy (other than a needle biopsy) shows the existence of
pneumoconiosis. Such biopsy would not be expected to be performed for
the sole purpose of diagnosing pneumoconiosis. Where a biopsy is
performed for other purposes, however (e.g., in connection with a lung
resection), the report thereof will be considered in determining the
existence of pneumoconiosis.
(b) The roentgenogram shall be of suitable quality for proper
classification of the pneumoconioses and conform to accepted medical
standards. It should represent a posterior-anterior view of the chest,
and such other views as the Administration may require, taken at a
preferred distance of 6 feet (a minimum of 5 feet is required) between
the focal point and the film on a 14 x 17 inch or 14 x 14 inch X-ray
film. Additional films or views should be obtained, if necessary, to
provide a suitable roentgenogram (X-ray) for proper classification
purposes.
(c) A report of autopsy or biopsy shall include a detailed gross
(macroscopic) and microscopic description of the lungs or visualized
portion of a lung. If an operative procedure has been performed to
obtain a portion of a lung, the evidence should include a copy of the
operative note and the pathology report of the gross and microscopic
examination of the surgical specimen. If any autopsy has been performed,
the evidence should include a complete copy of the autopsy report.
Sec. 410.430 Ventilatory studies.
Spirometric tests to measure ventilatory function must be expressed
in liters or liters per minute. The reported maximum voluntary
ventilation (MVV) or maximum breathing capacity (MBC) and 1-second
forced expiratory volume (FEV1) should represent the largest of at
least three attempts. The MVV or the MBC reported should represent the
observed value and should not be calculated from FEV1. The three
appropriately labeled spirometric tracings, showing distance per second
on the abscissa and the distance per liter on the ordinate, must be
incorporated in the file. The paper speed to record the FEV1 should
be at least 20 millimeters (mm.) per second. The height of the
individual must be recorded. Studies should not be performed during or
soon after an acute respiratory illness. If wheezing is present on
auscultation of the chest, studies must be performed following
administration of nebulized broncho-dilator unless use of the later is
contraindicated. A statement shall be made as to the individual's
ability to understand the directions, and cooperate in performing the
tests. If the tests cannot be completed the reason for such failure
should be explained.
Sec. 410.432 Cessation of disability.
(a) Where it has been determined that a miner is totally disabled
under Sec. 410.412, such disability shall be found to have ceased in the
month in which his impairment, as established by medical or other
relevant evidence, is no longer of such severity as to prevent him from
engaging in comparable and gainful work.
(b) Except where a finding is made as specified in paragraph (a) of
this section which results in an earlier month of cessation, if a miner
is requested to furnish necessary medical or other evidence or to
present himself for a necessary medical examination by a date specified
in the request or a date extended at the miner's request for good cause,
and the miner fails to comply with such request, the disability may be
found to have ceased in the month within which the date for compliance
falls, unless the Administration determines that there is a good cause
for such failure.
[[Page 548]]
(c) Before a determination is made that a miner's disability has
ceased, such miner shall be given notice and an opportunity to present
evidence including that from medical sources of his own choosing and
arguments and contention that his disability has not ceased.
Sec. 410.450 Death due to pneumoconiosis, including statutory presumption.
Benefits are provided under the Act to the eligible survivor of a
coal miner who was entitled to benefits at the time of his death, or
whose death is determined to have been due to pneumoconiosis. (For
benefits to the eligible survivors of a miner who is determined to have
been totally disabled due to pneumoconiosis at the time of his death,
regardless of the cause of death, see Secs. 410.410 through 410.430.)
Except as otherwise provided in Secs. 410.454 through 410.462, the
claimant must submit the evidence necessary to establish that the
miner's death was due to pneumoconiosis and that the pneumoconiosis
arose out of employment in the Nation's coal mines.
Sec. 410.454 Determining the existence of pneumoconiosis, including statutory presumption--survivor's claim.
(a) Medical findings. A finding of the existence of pneumoconiosis
as defined in Sec. 410.110(o)(1) may be made under the provisions of
Sec. 410.428 by:
(1) Chest roentgenogram; or
(2) Biopsy; or
(3) Autopsy.
(b) Presumption relating to respiratory or pulmonary impairment--
survivor's claim. (1) Even though the existence of pneumoconiosis is not
established as provided in paragraph (a) of this section, if other
evidence demonstrates the existence of a chronic respiratory or
pulmonary impairment from which the miner was totally disabled (see
Sec. 410.412) prior to his death, it will be presumed in the absence of
evidence to the contrary (see paragraph (b)(2) of this section) that the
death of the miner was due to pneumoconiosis.
(2) This presumption may be rebutted only if it is established that
the miner did not have pneumoconiosis, or that his respiratory or
pulmonary impairment did not arise out of, or in connection with,
employment in a coal mine.
(3) The provisions of this paragraph shall apply where a miner was
employed for 15 or more years in one or more of the Nation's underground
coal mines; in one or more of the Nation's other coal mines where the
environmental conditions were substantially similar to those in an
underground coal mine; or in any combination of both.
(4) However, where the evidence shows a work history reflecting many
years of such coal mine employment (although less than 15) as well as a
severe lung impairment, such evidence may be considered, in the exercise
of sound judgment, to establish entitlement in such case: Provided, That
a mere showing of a respiratory or pulmonary impairment shall not be
sufficient to establish such entitlement.
(c) Other relevant evidence. Even though the existence of
pneumoconiosis is not established as provided in paragraph (a) or (b) of
this section, a finding of death due to pneumoconiosis may be made if
other relevant evidence establishes the existence of a totally disabling
chronic respiratory or pulmonary impairment, and that such impairment
arose out of employment in a coal mine. As used in this paragraph, the
term other relevant evidence includes medical tests such as blood gas
studies, electrocardiogram, pulmonary function studies, or physical
performance tests, and any medical history, evidence submitted by the
miner's physician, his spouse's affidavits, and in the case of a
deceased miner, other appropriate affidavits of persons with knowledge
of the individual's physical condition, and other supportive materials.
In any event, no claim for benefits under part B of title IV of the Act
shall be denied solely on the basis of a negative chest roentgenogram
(X-ray).
Sec. 410.456 Determining origin of pneumoconiosis, including statutory presumption--survivor's claim.
(a) If a miner was employed for 10 years or more in the Nation's
coal mines, and suffered from pneumoconiosis, it will be presumed, in
the absence of persuasive evidence to
[[Page 549]]
the contrary, that the pneumoconiosis arose out of such employment.
(b) In any other case, the claimant must submit the evidence
necessary to establish that the pneumoconiosis from which the deceased
miner suffered, arose out of employment in the Nation's coal mines. (See
Sec. 410.110 (h), (i), (j), (k), (l), and (m).)
Sec. 410.458 Irrebuttable presumption of death due to pneumoconiosis-- survivor's claim.
There is an irrebuttable presumption that the death of a miner was
due to pneumoconiosis if he suffered from a chronic dust disease of the
lung which meets the requirements of Sec. 410.418.
Sec. 410.462 Presumption relating to respirable disease.
(a) Even though the existence of pneumoconiosis as defined in
Sec. 410.110 (o)(1) is not established as provided in Sec. 410.454(a),
if a deceased miner was employed for 10 years or more in the Nation's
coal mines and died from a respirable disease, it will be presumed, in
the absence of evidence to the contrary, that his death was due to
pneumoconiosis arising out of employment in a coal mine.
(b) Death will be found due to a respirable disease when death is
medically ascribed to a chronic dust disease, or to another chronic
disease of the lung. Death will not be found due to a respirable disease
where the disease reported does not suggest a reasonable possibility
that death was due to pneumoconiosis. Where the evidence establishes
that a deceased miner suffered from pneumoconiosis or a respirable
disease and death may have been due to multiple causes, death will be
found due to pneumoconiosis if it is not medically feasible to
distinguish which disease caused death or specifically how much each
disease contributed to causing death.
Sec. 410.470 Determination by nongovernmental organization or other governmental agency.
The decision of any nongovernmental organization or any other
governmental agency that an individual is, or is not, disabled for
purposes of any contract, schedule, regulation, or law, or that his
death was or was not due to a particular cause, shall not be
determinative of the question of whether or not an individual is totally
disabled due to pneumoconiosis, or was totally disabled due to
pneumoconiosis. As used in this section, the term other governmental
agency includes the Administration with respect to a determination or
decision relating to entitlement to disability insurance benefits under
section 223 of the Social Security Act, since the requirements for
entitlement under the latter Act differ from those relating to benefits
under this part. However, a final determination or decision that an
individual is disabled for purposes of section 223 of the Social
Security Act where the cause of such disability is pneumoconiosis, shall
be binding on the Administration on the issue of disability with respect
to claims under this part.
Sec. 410.471 Conclusion by physician regarding miner's disability or death.
The function of deciding whether or not an individual is totally
disabled due to pneumoconiosis, or was totally disabled due to
pneumoconiosis at the time of his death, or that his death was due to
pneumoconiosis, is the responsibility of the Administration. A statement
by a physician that an individual is, or is not, disabled, permanently
disabled, totally disabled, totally and permanently disabled, unable to
work, or a statement of similar import, being a conclusion upon the
ultimate issue to be decided by the Administration, shall not be
determinative of the question of whether or not an individual is under a
disability. However, all statements and other evidence (including
statements of the miner's physician) shall be considered in adjudicating
a claim. In considering statements of the miner's physician, appropriate
account shall be taken of the length of time he treated the miner.
Sec. 410.472 Consultative examinations.
Upon reasonable notice of the time and place thereof, any individual
filing a claim alleging to be totally disabled due to pneumoconiosis
shall present himself for and submit to reasonable physical examinations
or tests, at the expense of the Administration, by a
[[Page 550]]
physician or other professional or technical source designated by the
Administration or the State agency authorized to make determinations as
to disability. If any such individual fails or refuses to present
himself for any examination or test, such failure or refusal, unless the
Administration determines that there is good cause therefor, may be a
basis for determining that such individual is not totally disabled.
Religious or personal scruples against medical examination or test shall
not excuse an individual from presenting himself for a medical
examination or test. Any claimant may request that such test be
performed by a physician or other professional or technical source of
his choice, the reasonable expense of which shall be borne by the
Administration (see Sec. 410.240(h)). However, granting such request
does not preclude the Administration from requiring that additional or
supplemental tests be conducted by a physician or other professional or
technical source designated by the Administration.
Sec. 410.473 Evidence of continuation of disability.
An individual who has been determined to be totally disabled due to
pneumoconiosis, upon reasonable notice, shall, if requested to do so
(e.g., where there is an issue about the validity of the original
adjudication of disability) present himself for and submit to
examinations or tests as provided in Sec. 410.472, and shall submit
medical reports and other evidence necessary for the purposes of
determining whether such individual continues to be under a disability.
Sec. 410.474 Place and manner of submitting evidence.
Evidence in support of a claim for benefits based on disability
shall be filed in the manner and at the place or places prescribed in
subpart B of this part, or where appropriate, at the office of a State
agency authorized under agreement with the Secretary to make
determinations as to disability under title II of the Social Security
Act, or with an employee of such State agency authorized to accept such
evidence at a place other than such office.
Sec. 410.475 Failure to submit evidence.
An individual shall not be determined to be totally disabled unless
he furnishes such medical and other evidence thereof as is reasonably
required to establish his claim. Religious or personal scruples against
medical examinations, tests, or treatment shall not excuse an individual
from submitting evidence of disability.
Sec. 410.476 Responsibility to give notice of event which may affect a change in disability status.
An individual who is determined to be totally disabled due to
pneumoconiosis shall notify the Administration promptly if:
(a) His respiratory or pulmonary condition improves; or
(b) He engages in any gainful work or there is an increase in the
amount of such work or his earnings therefrom.
Sec. 410.490 Interim adjudicatory rules for certain part B claims filed by a miner before July 1, 1973, or by a survivor where the miner died before January 1, 1974.
(a) Basis for rules. In enacting the Black Lung Act of 1972, the
Congress noted that adjudication of the large backlog of claims
generated by the earlier law could not await the establishment of
facilities and development of medical tests not presently available to
evaluate disability due to pneumoconiosis, and that such claims must be
handled under present circumstances in the light of limited medical
resources and techniques. Accordingly, the Congress stated its
expectancy that the Secretary would adopt such interim evidentiary rules
and disability evaluation criteria as would permit prompt and vigorous
processing of the large backlog of claims consistent with the language
and intent of the 1972 amendments and that such rules and criteria would
give full consideration to the combined employment handicap of disease
and age and provide for the adjudication of claims on the basis of
medical evidence other than physical performance tests when it is not
feasible to provide such tests. The provisions of this section establish
such interim evidentiary rules and criteria. They take full account of
the
[[Page 551]]
congressional expectation that in many instances it is not feasible to
require extensive pulmonary function testing to measure the total extent
of an individual's breathing impairment, and that an impairment in the
transfer of oxygen from the lung alveoli to cellular level can exist in
an individual even though his chest roentgenogram (X-ray) or ventilatory
function tests are normal.
(b) Interim presumption. With respect to a miner who files a claim
for benefits before July 1, 1973, and with respect to a survivor of a
miner who dies before January 1, 1974, when such survivor timely files a
claim for benefits, such miner will be presumed to be totally disabled
due to pneumoconiosis, or to have been totally disabled due to
pneumoconiosis at the time of his death, or his death will be presumed
to be due to pneumoconiosis, as the case may be, if:
(1) One of the following medical requirements is met:
(i) A chest roentgenogram (X-ray), biopsy, or autopsy establishes
the existence of pneumoconiosis (see Sec. 410.428); or
(ii) In the case of a miner employed for at least 15 years in
underground or comparable coal mine employment, ventilatory studies
establish the presence of a chronic respiratory or pulmonary disease
(which meets the requirements for duration in Sec. 410.412(a)(2)) as
demonstrated by values which are equal to or less than the values
specified in the following table:
------------------------------------------------------------------------
Equal to or less
than--
-------------------
FEV1 MVV
------------------------------------------------------------------------
67'' or less........................................ 2.3 92
68''................................................ 2.4 96
69''................................................ 2.4 96
70''................................................ 2.5 100
71''................................................ 2.6 104
72''................................................ 2.6 104
73'' or more........................................ 2.7 108
------------------------------------------------------------------------
(2) The impairment established in accordance with paragraph (b)(1)
of this section arose out of coal mine employment (see Secs. 410.416 and
410.456).
(3) With respect to a miner who meets the medical requirements in
paragraph (b)(1)(ii) of this section, he will be presumed to be totally
disabled due to pneumoconiosis arising out of coal mine employment, or
to have been totally disabled at the time of his death due to
pneumoconiosis arising out of such employment, or his death will be
presumed to be due to pneumoconiosis arising out of such employment, as
the case may be, if he has at least 10 years of the requisite coal mine
employment.
(c) Rebuttal of presumption. The presumption in paragraph (b) of
this section may be rebutted if:
(1) There is evidence that the individual is, in fact, doing his
usual coal mine work or comparable and gainful work (see
Sec. 410.412(a)(1)), or
(2) Other evidence, including physical performance tests (where such
tests are available and their administration is not contraindicated),
establish that the individual is able to do his usual coal mine work or
comparable and gainful work (see Sec. 410.412(a)(1)).
(d) Application of presumption on readjudication. Any claim
initially adjudicated under the rules in this section will, if the claim
is for any reason thereafter readjudicated, be readjudicated under the
same rules.
(e) Failure of miner to qualify under presumption in paragraph (b)
of this section. Where it is not established on the basis of the
presumption in paragraph (b) of this section that a miner is (or was)
totally disabled due to pneumoconiosis, or was totally disabled due to
pneumoconiosis at the time of his death, or that his death was due to
pneumoconiosis, the claimant may nevertheless establish the requisite
disability or cause of death of the miner under the rules set out in
Secs. 410.412 to 410.462.
Pt. 410, Subpt. D, App.
Appendix to Subpart D
A miner with pneumoconiosis who meets or met one of the following
sets of medical specifications, may be found to be totally disabled due
to pneumoconiosis at the pertinent time, in the absence of evidence
rebutting such finding:
(1) Arterial oxygen tension at rest (sitting or standing) or during
exercise and simultaneously determined arterial pco2 equal to,
or less than, the values specified in the following table:
[[Page 552]]
------------------------------------------------------------------------
Arterial
po2 equal
Arterial pco2 (mm. Hg) to or less
than (mm.
Hg)
------------------------------------------------------------------------
30 or below................................................. 65
31.......................................................... 64
32.......................................................... 63
33.......................................................... 62
34.......................................................... 61
35.......................................................... 60
36.......................................................... 59
37.......................................................... 58
38.......................................................... 57
39.......................................................... 56
40 or above................................................. 55
------------------------------------------------------------------------
or
(2) Cor pulmonale with right-sided congestive failure as evidenced
by peripheral edema and liver enlargement, with:
(A) Right ventricular enlargement or outflow tract prominence on X-
ray or fluoroscopy; or
(B) ECG showing QRS duration less than 0.12 second and R of 5 mm. or
more in V1 and R/S of 1.0 or more in V1 and transition zone
(decreasing R/S) left of V1;
or
(3) Congestive heart failure with signs of vascular congestion such
as hepatomegaly or peripheral or pulmonary edema, with:
(A) Cardio-thoracic ratio of 55 percent or greater, or equivalent
enlargement of the transverse diameter of the heart, as shown on
teleroentgenogram (6-foot film); or
(B) Extension of the cardiac shadow (left ventricle) to the
vertebral column on lateral chest roentgenogram and total of S in
V1 or V2 and R in V5 or V6 of 35 mm. or more on ECG.
Subpart E--Payment of Benefits
Sec. 410.501 Payment periods.
Benefits are paid to beneficiaries during entitlement for payment
periods consisting of full calendar months.
Sec. 410.505 Payees.
(a) General. Benefits may be paid as appropriate, to a beneficiary
(see Sec. 410.110(r)), to a qualified dependent (see Sec. 410.511), or
to a representative payee on behalf of a beneficiary or dependent (see
Sec. 410.581ff). Also where an amount is payable under part B of title
IV of the Act for any month to two or more individuals who are members
of the same family, the Social Security Administration may, in its
discretion, certify to any two or more of such individuals joint payment
of the total benefits payable to them for such month.
(b) Joint payee dies before cashing check. Where a check has been
issued for joint payment to an individual and spouse residing in the
same household and one of them dies before the check is cashed, the
Social Security Administration may give the survivor permission to cash
the check. The permission is carried out by stamping the face of the
check. An official of the Social Security Administration or the Treasury
Disbursing Office must sign and name the survivor as the payee of the
check (see 31 CFR 360.8). Where the uncashed check is for benefits for a
month after the month of death, authority to cash the check will not be
given to the surviving payee unless the funds are needed to meet the
ordinary and necessary living expenses of the surviving payee.
(c) Adjustment or recovery of overpayment. Where a check
representing payment of benefits to an individual and spouse residing in
the same household is negotiated by the surviving payee in accordance
with the authorization in paragraph (b) of this section and where the
amount of the check exceeds the amount to which the surviving payee is
entitled, appropriate adjustment or recovery with respect to such excess
amount shall be made in accordance with section 204(a) of the Act (see
subpart F of part 404).
[43 FR 34780, Aug. 7, 1978]
Sec. 410.510 Computation of benefits.
(a) Basic rate. The benefit amount of each beneficiary entitled to a
benefit for a month is determined, in the first instance, by computing
the ``basic rate.'' The basic rate is equal to 50 percent of the minimum
monthly payment to which a totally disabled Federal employee in Grade
GS-2 would be entitled for such month under the Federal Employees'
Compensation Act, chapter 81, title 5 U.S.C. That rate for a month is
determined by:
(1) Ascertaining the lowest annual rate of pay (``step 1'') for
Grade GS-2 of
[[Page 553]]
the General Schedule applicable to such month (see 5 U.S.C. 5332);
(2) Ascertaining the monthly rate thereof by dividing the amount
determined in paragraph (a)(1) of this section by 12;
(3) Ascertaining the minimum monthly payment under the Federal
Employees' Compensation Act by multiplying the amount determined in
paragraph (a)(2) of this section by 0.75 (that is, by 75 percent) (see 5
U.S.C. 8112); and
(4) Ascertaining the basic rate under the Act by multiplying the
amount determined in paragraph (a)(3) of this section by 0.50 (that is,
by 50 percent).
(b) Basic benefit. When a miner or widow is entitled to benefits for
a month for which he or she has no dependents who qualify under subpart
C of this part, and when a surviving child of a miner or widow, or a
parent, brother, or sister of a miner, is entitled to benefits for a
month for which he or she is the only beneficiary entitled to benefits,
the amount of benefits to which such beneficiary is entitled is equal to
the basic rate as computed in accordance with this section (raised, if
not a multiple of 10 cents, to the next higher multiple of 10 cents (see
paragraph (d) of this section)). This amount is referred to as the basic
benefit.
(c) Augmented benefit. (1) When a miner or widow is entitled to
benefits for a month for which he or she has one or more dependents who
qualify under subpart C of this part, the amount of benefits to which
such miner or widow is entitled is increased. This increase is referred
to as an augmentation.
(2) Any request to the Administration that the benefits of a miner
or widow be augmented in accordance with this paragraph shall be in
writing on such form and in accordance with such instructions as are
prescribed by the Administration. Such request shall be filed with the
Administration in accordance with those provisions of subpart B of this
part dealing with the filing of claims as if such request were a claim
for benefits, and as if such dependent were the beneficiary referred to
therein. (See Sec. 410.220(f).) Ordinarily, such request is made as part
of the claim of the miner or widow for benefits.
(3) The benefits of a miner or widow are augmented to take account
of a particular dependent beginning with the first month in which such
dependent satisfies the conditions set forth in subpart C of this part,
and continues to be augmented through the month before the month in
which such dependent ceases to satisfy the conditions set forth in
subpart C of this part, except in the case of a child who qualifies as a
dependent because he is a student (see Sec. 410.370(c)). In the latter
case such benefits continue to be augmented through the month before the
first month during no part of which he qualifies as a student.
(4) The basic rate is augmented by 50 percent for one such
dependent, 75 percent for two such dependents, and 100 percent for three
or more such dependents (see paragraph (d) of this section).
(d) Benefit rates for miners and widows.
--------------------------------------------------------------------------------------------------------------------------------------------------------
October October October January
Beginning Beginning 1974 to 1973 to 1972 to 1972 to
October October September September September September 1971 1969-70
1976 1975 1975 1974 1973 1972
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1) Miner or widow with no dependents............................. $205.40 $196.80 $187.40 $177.60 $169.80 $161.50 $153.10 $144.50
(2) Miner or widow with one dependent............................. 308.10 295.20 281.10 266.40 254.70 242.20 229.60 216.70
(3) Miner or widow with two dependents............................ 359.50 344.40 328.00 310.80 297.10 282.60 267.90 252.80
(4) Miner or widow with three or more dependents.................. 410.80 393.50 374.80 355.20 339.50 322.90 306.10 288.90
--------------------------------------------------------------------------------------------------------------------------------------------------------
(e) Survivor benefit. (1) As used in this section, survivor means a
surviving child of a miner or widow, or, for months beginning May 1972,
a surviving parent, brother, or sister of a miner, who establishes
entitlement to benefits under the provisions of subpart B of this part.
(2) When one survivor is entitled to benefits for a month, his
benefit is the amount specified in paragraph (d)(1) of this section;
when two survivors are so
[[Page 554]]
entitled, the benefit of each is one-half the amount specified in
paragraph (d)(2) of this section; when three survivors are so entitled,
the benefit of each is one-third the amount specified in paragraph
(d)(3) of this section; when four survivors are so entitled, the benefit
of each is one-quarter of the amount specified in paragraph (d)(4) of
this section; and when more than four survivors are so entitled, the
benefit of each is determined by dividing the amount specified in
paragraph (d)(4) of this section by the number of such survivors.
(f) Computation and rounding. (1) Any computation prescribed by this
section is made to the third decimal place.
(2) Monthly benefits are payable in multiples of 10 cents.
Therefore, a monthly payment of amounts derived under paragraph (c)(4)
or (e)(2) of this section which is not a multiple of 10 cents is
increased to the next higher multiple of 10 cents.
(3) Since a fraction of a cent is not a multiple of 10 cents, such
an amount which contains a fraction in the third decimal place is raised
to the next higher multiple of 10 cents.
(g) Eligibility based on the coal mine employment of more than one
miner. Where an individual, for any month, is entitled (and/or qualifies
as a dependent for purposes of augmentation of benefits) based on the
disability or death due to pneumoconiosis arising out of the coal mine
employment of more than one miner, the benefit payable to or on behalf
of such individual shall be at a rate equal to the highest rate of
benefits for which entitlement is established by reason of eligibility
as a beneficiary, or by reason of his or her qualification as a
dependent for augmentation of benefit purposes.
[37 FR 20646, Sept. 30, 1972, as amended at 39 FR 12098, Apr. 3, 1974;
39 FR 41977, Dec. 4, 1974; 40 FR 56887, Dec. 5, 1975; 41 FR 53981, Dec.
10, 1976]
Sec. 410.511 Certification to dependent of augmentation portion of benefit.
(a) If the benefit of a miner or of a widow is augmented because of
one or more dependents (see Sec. 410.510(c)), and it appears to the
Administration that the best interest of such dependent would be served
thereby, the Administration may certify payment of the amount of such
augmentation (to the extent attributable to such dependents) (see
Secs. 410.510(c) and 410.536) to such dependent directly or to a
representing payee for the use and benefit of such dependent (see
Sec. 410.581ff).
(b) Any request to the Administration to certify separate payment of
the amount of an augmentation in accordance with paragraph (a) of this
section shall be in writing on such form and in accordance with such
instructions as are prescribed by the Administration, and shall be filed
with the Administration in accordance with those provisions of subpart B
of this part dealing with the filing of claims as if such requests were
a claim for benefits (see Sec. 410.220(f)).
(c) In determining whether it is in the best interest of such
dependent to certify separate payment of the amount of the augmentation
in benefits attributable to him, the Administration shall apply the
standards pertaining to representative payment in Secs. 410.581 through
410.590, and the instructions issued pursuant thereto.
(d) When the Administration determines (see Sec. 410.610(m)) that
the amount of a miner's benefit attributable to the miner's wife or
child should be certified for separate payment to a person other than
such miner, or that the amount of a widow's benefit attributable to such
widow's child should be certified for separate payment to a person other
than the widow, and the miner or widow disagrees with such determination
and alleges that separate certification is not in the best interest of
such dependent, the Administration shall reconsider that determination
(see Secs. 410.622 and 410.623).
(e) Any payment made under this section, if otherwise valid under
the Act, is a complete settlement and satisfaction of all claims,
rights, and interests in and to such payment.
[37 FR 20647, Sept. 30, 1972]
Sec. 410.515 Modification of benefit amounts; general.
Under certain conditions, the amount of monthly benefits as computed
in Sec. 410.510 must be modified to determine the amount actually to be
paid to a beneficiary. A modification of the
[[Page 555]]
amount of a monthly benefit is required in the following instances:
(a) Reduction. A reduction from a beneficiary's monthly benefit may
be required because of:
(1) In the case of benefits to a miner, parent, brother, or sister,
the excess earnings from wages and from net earnings from self-
employment (see Sec. 410.530) of such miner, parent, brother, or sister,
respectively; or
(2) Failure to report earnings from work in employment and self-
employment within the prescribed period of time (see Sec. 410.530); or
(3) The receipt by a beneficiary of payments made because of the
disability of the miner due to pneumoconiosis under State laws relating
to workmen's compensation (including compensation for occupational
disease), unemployment compensation, or disability insurance (see
Sec. 410.520).
(4) The fact that a claim for benefits from an additional
beneficiary is filed, or that such a claim is effective for a month
prior to the month of filing (see Sec. 410.535), or a dependent
qualifies under subpart C of this part for an augmentation portion of
the benefit of a miner or widow for a month for which another dependent
has previously qualified for an augmentation (see Sec. 410.536).
(b) Adjustment. An adjustment in a beneficiary's monthly benefit may
be required because an overpayment or underpayment has been made to such
beneficiary (see Secs. 410.560, 410.570, and 410.580).
(c) Nonpayment. No benefits under this part are payable to the
residents of a State which reduces its payments made to beneficiaries
pursuant to certain State laws (see Sec. 410.550).
(d) Suspension. A suspension of a beneficiary's monthly benefits may
be required when the Administration has information indicating that
reductions on account of the miner's excess earnings (based on criteria
in section 203(b) of the Social Security Act, 42 U.S.C. 403(b)) may
reasonably be expected.
(e) ``Rounding'' of benefit amounts. Monthly benefit rates are
payable in multiples of 10 cents. Any monthly benefit rate which, after
all applicable computations, augmentations, and/or reductions is not a
multiple of 10 cents, is increased to the next higher multiple of 10
cents. Since a fraction of a cent is not a multiple of 10 cents a
benefit rate which contains such a fraction in the third decimal is
raised to the next higher multiple of 10 cents.
[36 FR 23758, Dec. 14, 1971, as amended at 37 FR 20647, Sept. 30, 1972;
43 FR 34781, Aug. 7, 1978]
Sec. 410.520 Reductions; receipt of State benefit.
(a) As used in this section, the term State benefit means a payment
to a beneficiary made because of the disability of the miner due to
pneumoconiosis under State laws relating to workmen's compensation
(including compensation for occupational disease), unemployment
compensation, or disability insurance.
(b) Benefit payments to a beneficiary for a month are reduced (but
not below zero) by an amount equal to any payments of State benefits
received by such beneficiary for such month.
(c) Where a State benefit is paid periodically but not monthly, or
in a lump sum as a commutation of or a substitute for periodic benefits,
the reduction under this section is made at such time or times and in
such amounts as the Administration determines will approximate as nearly
as practicable the reduction required under paragraph (b) of this
section. In making such a determination, a weekly State benefit is
multiplied by 4\1/3\ and a biweekly benefit is multiplied by 2\1/6\, to
ascertain the monthly equivalent for reduction purposes.
(d) Amounts paid or incurred, or to be incurred, by the individual
for medical, legal, or related expenses in connection with his claim for
State benefits (defined in paragraph (a) of this section) or the injury
or occupational disease, if any, on which such award of State benefits
(or settlement agreement) is based, are excluded in computing the
reduction under paragraph (b) of this section, to the extent that they
are consonant with State law. Such medical, legal, or related expenses
may be evidenced by the State benefit award, compromise agreement, or
court order in the State benefit proceedings, or by such other evidence
as the Administration may require. Such other evidence may consist of:
[[Page 556]]
(1) A detailed statement by the individual's attorney, physician, or
the employer's insurance carrier; or
(2) Bills, receipts, or canceled checks; or
(3) Other clear and convincing evidence indicating the amount of
such expenses; or
(4) Any combination of the foregoing evidence from which the amount
of such expenses may be determinable.
Any expenses not established by evidence required by the Administration
will not be excluded.
[36 FR 23758, Dec. 14, 1971, as amended at 37 FR 20647, Sept. 30, 1972;
43 FR 34781, Aug. 7, 1978]
Sec. 410.530 Reductions; excess earnings.
Benefit payments to a miner, parent, brother, or sister are reduced
by an amount equal to the deductions which would be made with respect to
excess earnings under the provisions of section 203 (b), (f), (g), (h),
(j), and (l) of the Social Security Act (42 U.S.C. 403 (b), (f), (g),
(h), (j), and (l)), as if such benefit payments were benefits payable
under section 202 of the Social Security Act (42 U.S.C. 402). (See
Secs. 404.428 through 404.456 of this chapter.)
[37 FR 20647, Sept. 30, 1972]
Sec. 410.535 Reductions; effect of an additional claim for benefits.
Beginning with the month in which a person (other than a miner)
files a claim and becomes entitled to benefits, the benefits of other
persons entitled to benefits with respect to the same miner, are
adjusted downward, if necessary, so that no more than the permissible
amount of benefits (the maximum amount for the number of beneficiaries
involved) will be paid. Certain claims may also be effective
retroactively for benefits for months before the month of filing (see
Sec. 410.226). For any month before the month of filing, however,
otherwise correct benefits that have been previously certified by the
Administration for payment to other persons with respect to the same
miner may not be changed. Rather, the benefits of the person filing a
claim in the later month is reduced for each month of the retroactive
period to the extent that may be necessary so that the earlier and
otherwise correct payment to some other person is not made erroneous.
That is, for each month of the retroactive period, the amount payable to
the person filing the later claim is the difference, if any, between (a)
the total amount of benefits actually certified for payment to other
persons for that month and (b) the permissible amount of benefits (the
maximum amount for the number of beneficiaries involved) payable for
that month to all persons, including the person filing later.
[37 FR 20647, Sept. 30, 1972]
Sec. 410.536 Reductions; effect of augmentation of benefits based on subsequent qualification of individual.
(a) Ordinarily, a written request that the benefits of a miner or
widow be augmented on account of a qualified dependent (see
Sec. 410.510(c)) is made as part of the claim for benefits filed by such
miner or widow. However, it may also be made thereafter.
(b) In the latter case, beginning with the month in which such a
request is filed on account of a particular dependent and in which such
dependent qualifies for augmentation purposes under subpart C of this
part, the augmented benefits attributable to other qualified dependents
(with respect to the same miner or widow), if any, are adjusted
downward, if necessary, so that the permissible amount of augmented
benefits (the maximum amount for the number of dependents involved) will
not be exceeded.
(c) Where, based on the entitlement to benefits of a miner or widow,
a dependent would have qualified for augmentation purposes for a prior
month of such miner's or widow's entitlement had such request been filed
in such prior month, such request is effective for such prior month. For
any month before the month of filing such request, however, otherwise
correct benefits previously certified by the Administration may not be
changed. Rather, the amount of the augmented benefit attributable to the
dependent filing such request in the later month is reduced for each
month of the retroactive period to the extent that may be necessary, so
that no earlier payment for
[[Page 557]]
some other dependent is made erroneous. This means that for each month
of the retroactive period, the amount payable to the dependent filing
the later augmentation request is the difference, if any, between (1)
the total amount of augmented benefits certified for payment for other
dependents for that month, and (2) the permissible amount of augmented
benefits (the maximum amount for the number of dependents involved)
payable for that month for all dependents, including the dependent
filing later.
[37 FR 20647, Sept. 30, 1972]
Sec. 410.540 Reductions; more than one reduction event.
If a reduction for receipt of State benefits (see Sec. 410.520) and
a reduction on account of excess earnings (see Sec. 410.530) are
chargeable to the same month, the benefit for such month is first
reduced (but not below zero) by the amount of the State benefits (as
determined in accordance with Sec. 410.520(c)), and the remainder of the
benefit for such month, if any, is then reduced (but not below zero) by
the amount of excess earnings chargeable to such month.
Sec. 410.550 Nonpayment of benefits to residents of certain States.
No benefit shall be paid under this part to the residents of any
State which, after December 30, 1969, reduces the benefits payable to
persons eligible to receive benefits under this part, under its State
laws which are applicable to its general work force with regard to
workmen's compensation (including compensation for occupational
disease), unemployment compensation, or disability insurance benefits
which are funded in whole or in part out of employer contributions.
Sec. 410.560 Overpayments.
(a) General. As used in this subpart the term overpayment includes a
payment where no amount is payable under part B of title IV of the Act;
a payment in excess of the amount due under part B or part C of title IV
of the Act; a payment resulting from the failure to reduce benefits
under section 412(b) of the Act (see Secs. 410.520 and 410.530); a
payment to a resident of a State whose residents are not eligible for
payment (see Sec. 410.550); a payment of past due benefits to an
individual where such payment had not been reduced by the amount of
attorney's fees payable directly to an attorney (see Sec. 410.686(d));
and a payment resulting from the failure to terminate benefits of an
individual no longer entitled thereto. As used in this section, the term
beneficiary includes a qualified dependent for augmentation purposes and
the term benefit includes the amount of augmented benefits attributable
to a particular dependent (see Sec. 410.510(c)).
(b) Overpaid beneficiary is living. If the beneficiary to whom an
overpayment was made is, at the time of a determination of such
overpayment, entitled to benefits, or at any time thereafter becomes so
entitled, no benefit for any month is payable to such individual, except
as provided in paragraph (c) of this section, until an amount equal to
the amount of the overpayment has been withheld or refunded.
(c) Adjustment by withholding part of a monthly benefit. Adjustment
under paragraph (b) of this section may be effected by withholding a
part of the monthly benefit payable to a beneficiary where it is
determined that:
(1) Withholding the full amount each month would deprive the
beneficiary of income required for ordinary and necessary living
expenses;
(2) The overpayment was not caused by the beneficiary's
intentionally false statement or representation, or willful concealment
of, or deliberate failure to furnish, material information; and
(3) Recoupment can be effected in an amount of not less than $10 a
month and at a rate which would not extend the period of adjustment
beyond 3 years after the initiation of the adjustment action.
(d) Overpaid beneficiary dies before adjustment. If an overpaid
beneficiary dies before adjustment is completed under the provisions of
paragraph (b) of this section, the overpayment may be recovered
through--
(1) Repayment by the estate of the deceased overpaid beneficiary;
(2) Withholding benefit amounts due the estate of the deceased
overpaid beneficiary;
[[Page 558]]
(3) Withholding benefit amounts due any other individual because of
the black lung disease of the miner; or
(4) Any combination of the methods described in this paragraph.
(Sec. 204, Social Security Act, as amended, and sec. 413, Federal Coal
Mine Health and Safety Act of 1969, as amended; 49 Stat. 624, as amended
and 83 Stat. 793 (42 U.S.C. 404 and 30 U.S.C. 921, 923))
[36 FR 23758, Dec. 14, 1971, as amended at 46 FR 39588, Aug. 4, 1981; 47
FR 43674, Oct. 4, 1982]
Sec. 410.561 Notice of right to waiver consideration.
Whenever an initial determination is made that more than the correct
amount of payment has been made, notice of the provisions of section
204(b) of the Social Security Act regarding waiver of adjustment or
recovery shall be sent to the overpaid individual and to any other
individual against whom adjustment or recovery of the overpayment is to
be effected (see Sec. 410.561a).
[37 FR 20648, Sept. 30, 1972]
Sec. 410.561a When waiver of adjustment or recovery may be applied.
There shall be no adjustment or recovery in any case where an
incorrect payment under part B of title IV of the Act has been made with
respect to an individual:
(a) Who is without fault, and
(b) Adjustment or recovery would either:
(1) Defeat the purpose of title IV of the Act, or
(2) Be against equity and good conscience.
[37 FR 20648, Sept. 30, 1972]
Sec. 410.561b Fault.
Fault as used in without fault (see Sec. 410.561a) applies only to
the individual. Although the Administration may have been at fault in
making the overpayment, that fact does not relieve the overpaid
individual or any other individual from whom the Administration seeks to
recover the overpayment from liability for repayment if such individual
is not without fault. In determining whether an individual is at fault,
the Administration will consider all pertinent circumstances, including
his age, intelligence, education, and physical and mental condition.
What constitutes fault (except for reduction overpayments (see
Sec. 410.561e)) on the part of the overpaid individual or on the part of
any other individual from whom the Administration seeks to recover the
overpayment depends upon whether the facts show that the incorrect
payment to the individual resulted from:
(a) An incorrect statement made by the individual which he knew or
should have known to be incorrect; or
(b) Failure to furnish information which he knew or should have
known to be material; or
(c) With respect to the overpaid individual only, acceptance of a
payment which he either knew or could have been expected to know was
incorrect.
[37 FR 20648, Sept. 30, 1972]
Sec. 410.561c Defeat the purpose of title IV.
(a) General. Defeat the purpose of title IV for purposes of this
subpart, means defeat the purpose of benefits under this title, i.e., to
deprive a person of income required for ordinary and necessary living
expenses. This depends upon whether the person has an income or
financial resources sufficient for more than ordinary and necessary
needs, or is dependent upon all of his current benefits for such needs.
An individual's ordinary and necessary expenses include:
(1) Fixed living expenses, such as food and clothing, rent, mortgage
payments, utilities, maintenance, insurance (e.g., life, accident, and
health insurance including premiums for supplementary medical insurance
benefits under title XVIII of the Social Security Act), taxes,
installment payments, etc.;
(2) Medical, hospitalization, and other similar expenses;
(3) Expenses for the support of others for whom the individual is
legally responsible; and
(4) Other miscellaneous expenses which may reasonably be considered
as part of the individual's standard of living.
[[Page 559]]
(b) When adjustment or recovery will defeat the purpose of title IV.
Adjustment or recovery will defeat the purposes of title IV in (but is
not limited to) situations where the person from whom recovery is sought
needs substantially all of his current income (including black lung
benefits) to meet current ordinary and necessary living expenses.
[37 FR 20648, Sept. 30, 1972]
Sec. 410.561d Against equity and good conscience; defined.
Against equity and good conscience means that adjustment or recovery
of an incorrect payment will be considered inequitable if an individual,
because of a notice that such payment would be made or by reason of the
incorrect payment, relinquished a valuable right (example 1); or changed
his position for the worse (example 2). In reaching such a
determination, the individual's financial circumstances are irrelevant.
Example 1. After being awarded benefits, an individual resigned from
employment on the assumption he would receive regular monthly benefit
payments. It was discovered 3 years later than (due to Administration
error) his award was erroneous because he did not have pneumoconiosis.
Due to his age, the individual was unable to get his job back, and could
not get any other employment. In this situation, recovery or adjustment
of the incorrect payments would be against equity and good conscience
because the individual gave up a valuable right.
Example 2. A widow, having been awarded benefits for herself and
daughter, entered her daughter in college because the monthly benefits
made this possible. After the widow and her daughter received payments
for almost a year, the deceased worker was found not to have had
pneumoconiosis and all payments to the widow and child were incorrect.
The widow has no other funds with which to pay the daughter's college
expenses. Having entered the daughter in college and thus incurred a
financial obligation toward which the benefits had been applied, she was
in a worse position financially than if she and her daughter had never
been entitled to benefits. In this situation, the recovery of the
incorrect payments would be inequitable.
[37 FR 20648, Sept. 30, 1972]
Sec. 410.561e When an individual is ``without fault'' in a reduction- overpayment.
Except as provided in Sec. 410.561g, or elsewhere in this subpart,
an individual will be considered without fault in accepting a payment
which is incorrect because he failed to report an event relating to
excess earnings specified in section 203(b) of the Social Security Act,
or which is incorrect because a reduction in his benefits equal to the
amount of a deduction required under section 203(b) of the Social
Security Act is necessary (see Sec. 410.530), if it is shown that such
failure to report or such acceptance of the overpayment was due to one
of the following circumstances:
(a) Reasonable belief that only his net cash earnings (``take-home''
pay) are included in determining the annual earnings limitation or the
monthly earnings limitation under section 203(f) of the Social Security
Act (see Sec. 410.530).
(b) Reliance upon erroneous information from an official source
within the Social Security Administration (or other governmental agency
which the individual had reasonable cause to believe was connected with
the administration of benefits under part B of title IV of the Act) with
respect to the interpretation of a pertinent provision of the Act or
regulations pertaining thereto. For example, this circumstance could
occur where the individual is misinformed by such source as to the
interpretation of a provision in the Act or regulations relating to
reductions.
(c) The beneficiary's death caused the earnings limit applicable to
his earnings for purposes of reduction and the charging of excess
earnings to be reduced below $1,680 for a taxable year.
(d) Reasonable belief that in determining, for reduction purposes,
his earnings from employment and/or net earnings from self-employment in
the taxable year in which he became entitled to benefits, earnings in
such year prior to such entitlement would be excluded. However, this
provision does not apply if his earnings in the taxable year, beginning
with the first month of
[[Page 560]]
entitlement, exceeded the earnings limitation amount for such year.
(e) Unawareness that his earnings were in excess of the earnings
limitation applicable to the imposition of reductions and the charging
of excess earnings or that he should have reported such excess where
these earnings were greater than anticipated because of:
(1) Retroactive increases in pay, including backpay awards;
(2) Work at a higher pay rate than realized;
(3) Failure of the employer of an individual unable to keep accurate
records to restrict the amount of earnings or the number of hours worked
in accordance with a previous agreement with such individual;
(4) The occurrence of five Saturdays (or other workdays, e.g., five
Mondays) in a month and the earnings for the services on the fifth
Saturday or other workday caused the reductions.
(f) The continued issuance of benefit checks to him after he sent
notice to the Administration of the event which caused or should have
caused the reductions provided that such continued issuance of checks
led him to believe in good faith that he was entitled to checks
subsequently received.
(g) Lack of knowledge that bonuses, vacation pay, or similar
payments, constitute earnings for purposes of the annual earnings
limitation.
(h) Reasonable belief that earnings in excess of the earnings
limitation amount for the taxable year would subject him to reductions
only for months beginning with the first month in which his earnings
exceeded the earnings limitation amount. However, this provision is
applicable only if he reported timely to the Administration during the
taxable year when his earnings reached the applicable limitation amount
for such year.
(i) Reasonable belief that earnings from employment and/or net
earnings from self-employment after the attainment of age 72 in the
taxable year in which he attained age 72 would not cause reductions with
respect to benefits payable for months in that taxable year prior to the
attainment of age 72.
(j) Reasonable belief by an individual entitled to benefits that
earnings from employment and/or net earnings from self-employment after
the termination of entitlement in the taxable year in which the
termination event occurred would not cause reductions with respect to
benefits payable for months in that taxable year prior to the month in
which the termination event occurred.
(k) Failure to understand the deduction provisions of the Social
Security Act or the occurrence of unusual or unavoidable circumstances
the nature of which clearly shows that the individual was unaware of a
violation of such reduction provisions. However, these provisions do not
apply unless he made a bona fide attempt to restrict his annual earnings
or otherwise comply with the reduction provisions of the Act.
[37 FR 20648, Sept. 30, 1972]
Sec. 410.561f When an individual is ``without fault'' in an entitlement overpayment.
A benefit payment under part B of title IV of the Act to or on
behalf of an individual who fails to meet one or more requirements for
entitlement to such payment or the payment exceeds the amount to which
he is entitled, constitutes an entitlement overpayment. Where an
individual or other person on behalf of an individual accepts such
overpayment because of reliance on erroneous information from an
official source within the Administration (or other governmental agency
which the individual had reasonable cause to believe was connected with
the administration of benefits under part B of title IV of the Act) with
respect to the interpretation of a pertinent provision of the Act or
regulations pertaining thereto, such individual, in accepting such
overpayment, will be deemed to be without fault.
[37 FR 20649, Sept. 30, 1972]
Sec. 410.561g When an individual is at ``fault'' in a reduction- overpayment.
(a) Degree of care. An individual will not be without fault if the
Administration has evidence in its possession which shows either a lack
of good faith or failure to exercise a high degree of
[[Page 561]]
care in determining whether circumstances which may cause reductions
from his benefits should be brought to the attention of the
Administration by an immediate report or by return of a benefit check.
The high degree of care expected of an individual may vary with the
complexity of the circumstances giving rise to the overpayment and the
capacity of the particular payee to realize that he is being overpaid.
Accordingly, variances in the personal circumstances and situations of
individual payees are to be considered in determining whether the
necessary degree of care has been exercised by an individual to warrant
a finding that he was without fault in accepting a ``reduction-
overpayment.''
(b) Subsequent reduction-overpayments. An individual will not be
without fault where, after having been exonerated for a ``reduction-
overpayment'' and after having been advised of the correct
interpretation of the reduction provision, he incurs another
``reduction-overpayment'' under the same circumstances as the first
overpayment.
[37 FR 20649, Sept. 30, 1972]
Sec. 410.561h When adjustment or recovery of an overpayment will be waived.
(a) Adjustment or recovery deemed ``against equity and good
conscience.'' In the situations described in Secs. 410.561e (a), (b),
and (c), and 410.561f, adjustment or recovery will be waived since it
will be deemed such adjustment or recovery is ``against equity and good
conscience.'' Adjustment or recovery will also be deemed ``against
equity and good conscience'' in the situation described in
Sec. 410.561e(d), but only as to a month in which the individual's
earnings from wages do not exceed the total monthly benefits affected
for that month.
(b) Adjustment or recovery considered to ``defeat the purpose of
title IV'' or be ``against equity and good conscience'' under certain
circumstances. In the situation described in Sec. 410.561e(d) (except in
the case of an individual whose monthly earnings from wages in
employment do not exceed the total monthly benefits affected for a
particular month), and in the situations described in Sec. 410.561e (e)
through (k), adjustment or recovery shall be waived only where the
evidence establishes that adjustment or recovery would work a financial
hardship (see Sec. 410.561c) or would otherwise be inequitable (see
Sec. 410.561d).
[37 FR 20649, Sept. 30, 1972]
Sec. 410.563 Liability of a certifying officer.
No certifying or disbursing officer shall be held liable for any
amount certified or paid by him to any individual:
(a) Where adjustment or recovery of such amount is waived under
section 204(b) of the Social Security Act; or
(b) Where adjustment under section 204(a) of the Social Security Act
is not completed prior to the death of all individuals against whose
benefits or lump sums reductions are authorized; or
(c) Where a claim for recovery of an overpayment is compromised or
collection or adjustment action is suspended or terminated pursuant to
the Federal Claims Collection Act of 1966 (31 U.S.C. 951-953) (see
Sec. 410.565).
[37 FR 20649, Sept. 30, 1972]
Sec. 410.565 Collection and compromise of claims for overpayment.
(a) General effect of the Federal Claims Collection Act of 1966.
Claims by the Administration against an individual for recovery of
overpayments under part B of title IV of the Act, not exceeding the sum
of $20,000, exclusive of interest, may be compromised, or collection
suspended or terminated where such individual or his estate does not
have the present or prospective ability to pay the full amount of the
claim within a reasonable time (see paragraph (c) of this section) or
the cost of collection is likely to exceed the amount of recovery (see
paragraph (d) of this section) except as provided under paragraph (b) of
this section.
(b) When there will be no compromise, suspension or termination of
collection of a claim for overpayment--(1) Overpaid individual alive. In
any case where the overpaid individual is alive, a claim for overpayment
will not be compromised, nor will there be suspension or termination of
collection of the claim by the
[[Page 562]]
Administration if there is an indication of fraud, the filing of a false
claim, or misrepresentation on the part of such individual or on the
part of any other party having an interest in the claim.
(2) Overpaid individual deceased. In any case where the overpaid
individual is deceased (i) a claim for overpayment in excess of $5,000
will not be compromised, nor will there be suspension or termination of
collection of the claim by the Administration if there is an indication
of fraud: The filing of a false claim, or misrepresentation on the part
of such deceased individual, and (ii) a claim for overpayment regardless
of the amount will not be compromised, nor will there be suspension or
termination of collection of the claim by the Administration if there is
an indication that any person other than the deceased overpaid
individual had a part in the fraudulent action which resulted in the
overpayment.
(c) Inability to pay claim for recovery of overpayment. In
determining whether the overpaid individual is unable to pay a claim for
recovery of an overpayment under part B of title IV of the Act, the
Administration will consider such individual's age, health, present and
potential income (including inheritance prospects), assets (e.g., real
property, savings account), possible concealment or improper transfer of
assets, and assets or income of such individual which may be available
in enforced collection proceedings. The Administration will also
consider exemptions available to such individual under the pertinent
State or Federal law in such proceedings. In the event the overpaid
individual is deceased, the Administration will consider the available
assets of the estate, taking into account any liens or superior claims
against the estate.
(d) Cost of collection or litigative probabilities. Where the
probable costs of recovering an overpayment under part B of title IV of
the Act would not justify enforced collection proceedings for the full
amount of the claim or there is doubt concerning the Administration's
ability to establish its claim as well as the time which it will take to
effect such collection, a compromise or settlement for less than the
full amount will be considered.
(e) Amount of compromise. The amount to be accepted in compromise of
a claim for overpayment under part B of title IV of the Act shall bear a
reasonable relationship to the amount which can be recovered by enforced
collection proceedings giving due consideration to the exemptions
available to the overpaid individual under State or Federal law and the
time which such collection will take.
(f) Payment. Payment of the amount which the Administration has
agreed to accept as a compromise in full settlement of a claim for
recovery of an overpayment under part B of title IV of the Act must be
made within the time and in the manner set by the Administration. A
claim for such recovery of the overpayment shall not be considered
compromised or settled until the full payment of the compromised amount
has been made within the time and manner set by the Administration.
Failure of the overpaid individual or his estate to make such payment as
provided shall result in reinstatement of the full amount of the
overpayment less any amounts paid prior to such default.
Sec. 410.570 Underpayments.
(a) General. As used in this subpart, the term underpayment includes
a payment in an amount less than the amount of the benefit due for such
month, and nonpayment where some amount of such benefits are payable.
(b) Underpaid individual is living. If an individual to whom an
underpayment is due is living, the amount of such underpayment will be
paid to such individual either in a single payment (if he is not
entitled to a monthly benefit) or by increasing one or more monthly
benefit payments to which such individual is or becomes entitled.
(c) Underpaid individual dies before adjustment of underpayment. If
an individual to whom an underpayment is due dies before receiving
payment or negotiating a check or checks representing such payment, such
underpayment will be distributed to the living person (or persons) in
the highest order of priority as follows:
[[Page 563]]
(1) The deceased individual's surviving spouse who was either:
(i) Living in the same household (as defined in Sec. 410.393) with
the deceased individual at the time of such individual's death, or
(ii) In the case of a deceased miner, entitled for the month of
death to widow's black lung benefits.
(2) In the case of a deceased miner or widow, his or her child
entitled to benefits as the surviving child of such miner or widow for
the month in which such miner or widow died (if more than one such
child, in equal shares to each such child). As used in this
subparagraph, ``entitled to benefits as a surviving child'' refers to
the benefit described in Sec. 410.212, and not to the payment described
in Sec. 410.510(c).
(3) In the case of a deceased miner, his parent entitled to benefits
as the surviving parent of such miner for the month in which such miner
died (if more than one such parent, in equal shares to each such
parent).
(4) The surviving spouse of the deceased individual who does not
qualify under paragraph (c)(1) of this section.
(5) The child or children of the deceased individual who do not
qualify under paragraph (c)(2) of this section (if more than one such
child, in equal shares to each such child).
(6) The parent or parents of the deceased individual who do not
qualify under paragraph (c)(3) of this section (if more than one such
parent, in equal shares to each such parent).
(7) The legal representative of the estate of the deceased
individual as defined in paragraph (e) of this section.
(d) Person qualified to receive underpayment dies before receiving
payment. In the event that a person who is otherwise qualified to
receive an underpayment under the provisions of paragraph (c) of this
section, dies before receiving payment or before negotiating the check
or checks representing such payment, his share of the underpayment will
be divided among the remaining living person(s) in the same order of
priority. In the event that there is (are) no other such person(s), the
underpayment will be paid to the living person(s) in the next lower
order of priority under paragraph (c) of this section.
(e) Definition of legal representative. The term legal
representative, for the purpose of qualifying to receive an
underpayment, generally means the executor or the administrator of the
estate of the deceased beneficiary. However, it may also include an
individual, institution, or organization acting on behalf of an
unadministered estate: Provided, The person can give the Administration
good acquittance (as defined in paragraph (f) of this section). The
following persons may qualify as legal representative for purposes of
this section, provided they can give the Administration good
acquittance:
(1) A person who qualifies under a State's ``small estate'' statute;
or
(2) A person resident in a foreign country who, under the laws and
customs of that country, has the right to receive assets of the estate;
or
(3) A public administrator; or
(4) A person who has the authority, under applicable law, to collect
the assets of the estate of the deceased beneficiary.
(f) Definition of good acquittance. A person is considered to give
the Administration good acquittance when payment to that person will
release the Administration from further liability for such payment.
[36 FR 23758, Dec. 14, 1971, as amended at 37 FR 20650, Sept. 30, 1972]
Sec. 410.580 Relation to provisions for reductions or increases.
The amount of an overpayment or underpayment is the difference
between the amount actually paid to the beneficiary and the amount of
the payment to which the beneficiary was actually entitled. Such
overpayment or underpayment, for example, would be equal to the
difference between the amount of a benefit in fact paid to the
beneficiary and the amount of such benefit as reduced under section
412(b) of the Act, as increased pursuant to section 412(a)(1), or as
augmented under section 412(a)(3), of the Act. In effecting an
adjustment with respect to an overpayment, no amount can be considered
as having been withheld from a particular benefit which is in excess of
the amount of such benefit as so reduced. Overpayments and underpayments
simultaneously outstanding
[[Page 564]]
on account of the same beneficiary are first adjusted against one
another before adjustment pursuant to the other provisions of this
subpart.
Sec. 410.581 Payments on behalf of an individual.
When it appears to the Administration that the interest of a
beneficiary entitled to a payment under part B of title IV of the Act
would be served thereby, certification of payment may be made by the
Administration, regardless of the legal competency or incompetency of
the beneficiary entitled thereto, either for direct payment to such
beneficiary, or for his use and benefit to a relative or some other
person as the ``representative payee'' of the beneficiary. When it
appears that an individual who is receiving benefit payments may be
incapable of managing such payments in his own interest, the
Administration shall, if such individual is age 18 or over and has not
been adjudged legally incompetent, continue payments to such individual
pending a determination as to his capacity to manage benefit payments
and the selection of a representative payee. As used in Secs. 410.581
through 410.590, the term beneficiary includes the dependent of a miner
or widow who could qualify for certification of separate payment of an
augmentation portion of such miner's or widow's benefits (see
Secs. 410.510(c) and 410.511).
[37 FR 20650, Sept. 30, 1972]
Sec. 410.582 Submission of evidence by representative payee.
Before any amount shall be certified for payment to any relative or
other person as representative payee for and on behalf of a beneficiary,
such relative or other person shall submit to the Administration such
evidence as it may require of his relationship to, or his responsibility
for the care of, the beneficiary on whose behalf payment is to be made,
or of his authority to receive such payment. The Administration may, at
any time thereafter, require evidence of the continued existence of such
relationship, responsibility, or authority. If any such relative or
other person fails to submit the required evidence within a reasonable
period of time after it is requested, no further payments shall be
certified to him on behalf of the beneficiary unless for good cause
shown, the default of such relative or other person is excused by the
Administration, and the required evidence is thereafter submitted.
[37 FR 20650, Sept. 30, 1972]
Sec. 410.583 Responsibility of representative payee.
A relative or other person to whom certification of payment is made
on behalf of a beneficiary as representative payee shall, subject to
review by the Administration and to such requirements as it may from
time to time prescribe, apply the payments certified to him on behalf of
a beneficiary only for the use and benefit of such beneficiary in the
manner and for the purposes determined by him to be in the beneficiary's
best interest.
[37 FR 20650, Sept. 30, 1972]
Sec. 410.584 Use of benefits for current maintenance.
Payments certified to a relative or other person on behalf of a
beneficiary shall be considered as having been applied for the use and
benefit of the beneficiary when they are used for the beneficiary's
current maintenance. Where a beneficiary is receiving care in an
institution (see Sec. 410.586), current maintenance shall include the
customary charges made by the institution to individuals it provides
with care and services like those it provides the beneficiary and
charges made for current and foreseeable needs of the beneficiary which
are not met by the institution.
[37 FR 20650, Sept. 30, 1972]
Sec. 410.585 Conservation and investment of payments.
Payments certified to a relative or other person on behalf of a
beneficiary which are not needed for the current maintenance of the
beneficiary except as they may be used pursuant to Sec. 410.587, shall
be conserved or invested on the beneficiary's behalf. Preferred
investments are U.S. Savings Bonds, but such funds may also be invested
in accordance with the rules applicable to investment of trust estates
by trustees.
[[Page 565]]
For example, surplus funds may be deposited in an interest- or dividend-
bearing account in a bank or trust company, in a savings and loan
association, or in a credit union, if the account is either federally
insured or is otherwise insured in accordance with State law
requirements. Surplus funds deposited in an interest- or dividend-
bearing account in a bank or trust company, in a savings and loan
association, or in a credit union, must be in a form of account which
clearly shows that the representative payee has only a fiduciary, and
not a personal, interest in the funds. The preferred forms of such
accounts are as follows:
------------------------ (Name of beneficiary) by ----------------------
--, (Name of representative payee) representative payee; or ------------
------------ (Name of beneficiary) by ------------------------, (Name of
representative payee) trustee.
U.S. Savings Bonds purchased with surplus funds by a representative
payee for a minor should be registered as follows:
------------------------ (Name of beneficiary) --------------------
(Social Security No.), a minor, for whom -------------------- (Name of
payee) is representative payee for black lung benefits.
U.S. Savings Bonds purchased with surplus funds by a representative
payee for an incapacitated adult beneficiary should be registered as
follows:
------------------------, (Name of beneficiary) --------------------
(Social Security No.), for whom -------------------- (Name of payee) is
representative payee for black lung benefits.
A representative payee who is the legally appointed guardian or
fiduciary of the beneficiary may also register U.S. Savings Bonds
purchased with funds from the payment of benefits under part B of title
IV in accordance with applicable regulations of the U.S. Treasury
Department (31 CFR 315.5 through 315.8). Any other approved investment
of the beneficiary's funds made by the representative payee must clearly
show that the payee holds the property in trust for the beneficiary.
[41 FR 17892, Apr. 29, 1976]
Sec. 410.586 Use of benefits for beneficiary in institution.
Where a beneficiary is confined in a Federal, State, or private
institution because of mental or physical incapacity, the relative or
other person to whom payments are certified on behalf of the beneficiary
shall give highest priority to expenditure of the payments for the
current maintenance needs of the beneficiary, including the customary
charges made by the institution (see Sec. 410.584) in providing care and
maintenance. It is considered in the best interest of the beneficiary
for the relative or other person to whom payments are certified on the
beneficiary's behalf to allocate expenditure of the payments so
certified in a manner which will facilitate the beneficiary's earliest
possible rehabilitation or release from the institution or which
otherwise will help him live as normal a life as practicable in the
institutional environment.
[37 FR 20651, Sept. 30, 1972]
Sec. 410.587 Support of legally dependent spouse, child, or parent.
If current maintenance needs of a beneficiary are being reasonably
met, a relative or other person to whom payments are certified as
representative payee on behalf of the beneficiary may use part of the
payment so certified for the support of the legally dependent spouse, a
legally dependent child, or a legally dependent parent of the
beneficiary.
[37 FR 20651, Sept. 30, 1972]
Sec. 410.588 Claims of creditors.
A relative or other person to whom payments under part B of title IV
of the Act are certified as representative payee on behalf of a
beneficiary may not be required to use such payments to discharge an
indebtedness of the beneficiary which was incurred before the first
month for which payments are certified to a relative or other person on
the beneficiary's behalf. In no case, however, may such payee use such
payments to discharge such indebtedness of the beneficiary unless the
current and reasonably foreseeable future needs of the beneficiary are
otherwise provided for.
[37 FR 20651, Sept. 30, 1972]
[[Page 566]]
Sec. 410.589 Accountability.
A relative or other person to whom payments are certified as
representative payee on behalf of a beneficiary shall submit a written
report in such form and at such times as the Administration may require,
accounting for the payments certified to him on behalf of the
beneficiary unless such payee is a court-appointed fiduciary and, as
such, is required to make an annual accounting to the court, in which
case a true copy of each such account filed with the court may be
submitted in lieu of the accounting form prescribed by the
Administration. If any such relative or other person fails to submit the
required accounting within a reasonable period of time after it is
requested, no further payments shall be certified to him on behalf of
the beneficiary unless for good cause shown, the default of such
relative or other person is excused by the Administration, and the
required accounting is thereafter submitted.
[37 FR 20651, Sept. 30, 1972]
Sec. 410.590 Transfer of accumulated benefit payments.
A representative payee who has conserved or invested funds from
payments under part B of title IV of the Act certified to him on behalf
of a beneficiary shall, upon direction of the Administration, transfer
any such funds (including interest earned from investment of such funds)
to a successor payee appointed by the Administration, or, at the option
of the Administration, shall transfer such funds, including interest, to
the Administration for recertification to a successor payee or to the
beneficiary.
[37 FR 20651, Sept. 30, 1972]
Sec. 410.591 Eligibility for services and supplies under part C of title IV of the act.
The Social Security Administration will notify each miner entitled
to benefits on the basis of a claim filed under part B of the title IV
of the Act of his or her possible eligibility for medical services and
supplies under part C of title IV of the Act. Application for medical
benefits under part C will not jeopardize a person's eligibility for
part B benefits, regardless of the outcome of the claim for part C
benefits. The DOL regulations covering the time period in which the
miner must file with DOL for these benefits are published at 20 CFR part
725.
(Sec. 411, Federal Coal Mine Health and Safety Act of 1969, as amended;
85 Stat. 793, 30 U.S.C. 921)
[43 FR 34781, Aug. 7, 1978]
Subpart F--Determinations of Disability, Other Determinations,
Administrative Review, Finality of Decisions, and Representation of
Parties
Sec. 410.601 Determinations of disability.
(a) By State agencies. In any State which has entered into an
agreement with the Secretary providing therefor, determinations as to
whether a miner is under a total disability (as defined in Sec. 410.402)
due to pneumoconiosis (as defined in Sec. 410.110(o)), as to the date
total disability began, and as to the date total disability ceases,
shall be made by the State agency or agencies designated in such
agreement on behalf of the Secretary with respect to all individuals in
such State, or with respect to such class or classes of individuals in
the State as may be designated in the agreement.
(b) By the Administration. Determinations as to whether a miner is
under a total disability (as defined in Sec. 410.402), due to
pneumoconiosis (as defined in Sec. 410.110(o)), as to the date the total
disability began, and as to the date total disability ceases, shall be
made by the Administration on behalf of the Secretary with respect to
individuals in any State which has not entered into an agreement to make
such determinations, or with respect to any class or classes of
individuals to which such an agreement is not applicable, or with
respect to any individuals outside the United States. In addition, all
other determinations as to entitlement to and the amounts of benefits
shall be made
[[Page 567]]
by the Administration on behalf of the Secretary.
(c) Review by Administration of State agency determinations. The
Administration may review a determination made by a State agency that a
miner is under a total disability and, as a result of such review, may
determine that such individual is not under a total disability, or that
the total disability began on a date later than that determined by the
State agency, or that the total disability ceased on a date earlier than
that determined by the State agency.
(d) Initial determinations as to entitlement or termination of
entitlement. After any determination as to whether an individual is
under a total disability or has ceased to be under a total disability,
the Administration shall make an initial determination (see
Sec. 410.610) with respect to entitlement to benefits.
(e) Simultaneous claims. The adjudication of any claim under this
part shall not be delayed for the adjudication of any other benefit
claim by the same individual pending before the Administration.
[36 FR 23760, Dec. 14, 1971, as amended at 37 FR 20651, Sept. 30, 1972]
Sec. 410.610 Administrative actions that are initial determinations.
(a) Entitlement to benefits. The Administration, subject to the
limitations of a Federal-State agreement pursuant to section 413(b) of
the Act (see Sec. 410.601 (a)), shall make findings, setting forth the
pertinent facts and conclusions, and an initial determination with
respect to entitlement to benefits of any individual who has filed a
claim for benefits. The determination shall include the amount, if any,
to which the individual is entitled and, where applicable, such amount
as reduced (see Sec. 410.515), augmented or otherwise increased (see
Sec. 410.510).
(b) Modification of the amount of benefits. The Administration
shall, under the circumstances hereafter stated in this paragraph, make
findings, setting forth the pertinent facts and conclusions, and an
initial determination as to whether:
(1) There should be a reduction under section 412(b) (or section
412(a)(5)) of the Act, and if a reduction is to be made, the amount
thereof (see Sec. 410.515(a)); or
(2) There has been an overpayment (see Sec. 410.560) or an
underpayment (see Sec. 410.570) of benefits and, if so, the amount
thereof, and the adjustment to be made by increasing or decreasing the
monthly benefits to which a beneficiary is entitled (see
Sec. 410.515(b)), and, in the case of an underpayment due a deceased
beneficiary, the person to whom the underpayment should be paid.
(c) Termination of benefits. The Administration, subject to the
limitations of a Federal-State agreement pursuant to section 413(b) of
the Act (see Sec. 410.601 (a)), shall, with respect to a beneficiary who
has been determined to be entitled to benefits, make findings, setting
forth the pertinent facts and conclusions, and an initial determination
as to whether, under the applicable provisions of part B of title IV of
the Act, such beneficiary's entitlement to benefits has ended and, if
so, the effective date of such termination.
(d) Reinstatement of benefits. The Administration shall, with
respect to a beneficiary whose benefits have been determined to have
ended under paragraph (c) of this section, make findings, setting forth
the pertinent facts and conclusions, and an initial determination as to
whether the individual is entitled to a reinstatement of benefits thus
ended, and if so, the effective date of such reinstatement. Such
findings of fact and determination shall be made whenever a party makes
a written request for reinstatement or whenever evidence is received
which justifies such reinstatement (see for example Secs. 410.671
through 410.673).
(e) Augmentation of benefits. The Administration shall make
findings, setting forth the pertinent facts and conclusions, and an
initial determination, as to whether a beneficiary has or continues to
have dependents who, at the appropriate time, qualify under the
relationship, dependency, and other applicable requirements of subpart C
of this part, for purposes of entitling such beneficiary to an
augmentation of his benefits pursuant to Sec. 410.510(b).
(f) Other increases in benefit amounts. The Administration shall
make findings, setting forth the pertinent facts
[[Page 568]]
and conclusions, and an initial determination, as to whether a
beneficiary is entitled to an increase in benefits (other than an
augmentation) pursuant to section 412(a) of the Act.
(g) Applicant's failure to submit evidence. If an individual fails
to submit in support of his claim for benefits or request for
augmentation or other increase of benefits, such evidence as may be
requested by the Administration pursuant to Sec. 410.240 or any
provision of the Act, the Administration may make an initial
determination disallowing the individual's claim or his request for such
augmentation or other increase. The initial determination, however,
shall specify the conditions of entitlement to benefits or to an
augmentation or other increase of benefits that the individual has
failed to satisfy because of his failure to submit the requested
evidence (see Sec. 410.240).
(h) Failure to file or prosecute claim under applicable State
workmen's compensation law. The Administration shall make findings,
setting forth the pertinent facts and conclusions, and an initial
determination, as to whether an individual has failed to file or to
prosecute a claim under the applicable State workmen's compensation law
pursuant to Sec. 410.219.
(i) Withdrawal of claim or cancellation of withdrawal request. When
a request for withdrawal of a claim, or a request for cancellation of a
``request for withdrawal'' of a claim, is denied by the Administration,
the Administration shall make findings setting forth the pertinent facts
and conclusions and an initial determination of denial.
(j) Request for reimbursement for medical expenses--amount in
controversy $100 or more. The Administration shall, with respect to a
claimant who requests reimbursement for medical expenses (see
Sec. 410.240(h)), make findings, setting forth the pertinent facts and
conclusions and, where the amount in controversy is $100 or more, an
initial determination as to whether and the extent to which the expenses
for which the reimbursement request is made are medical expenses
reasonably incurred by the claimant in establishing his claim. (Also see
Sec. 410.615(e).)
(k) Waiver of adjustment or recovery of monthly benefits. The
Administration shall make findings, setting forth the pertinent facts
and conclusions, and an initial determination as to whether there shall
be no adjustment or recovery where an overpayment with respect to an
individual has been made (see Sec. 410.561).
(l) Need for representative payment. The Social Security
Administration shall make findings, setting forth the pertinent facts
and conclusions and an initial determination in accordance with section
205(j) of the Social Security Act (42 U.S.C. 405(j)), as to:
(1) Whether representative payment shall serve the interests of an
individual by reason of his incapacity to manage his benefit payments
(see Sec. 410.581) except that findings as to incapacity with respect to
an individual under age 18 or with respect to an individual adjudged
legally incompetent shall not be considered initial determinations; and,
(2) Who shall be appointed or continued as representative payee on
behalf of a beneficiary under this part.
(m) Separate certification of payment to dependent. Where the
benefit of a miner or of a widow is increased (``augmented'') because he
or she has a qualified dependent (see Sec. 410.510(c)), and it appears
to the Administration that it would be in the best interest of any such
dependent to have the amount of the augmentation (to the extent
attributable to such dependent) certified separately to such dependent
(see Sec. 410.511(a)) or to a representative payee on his behalf (see
Sec. 410.581), the Administration shall make findings, setting forth the
pertinent facts and conclusions, and an initial determination, as to
whether separate payment of an augmented amount should be certified (see
Sec. 410.511(a)).
(n) Support of parent, brother, or sister. The Administration shall
make findings, setting forth the pertinent facts and conclusions, and an
initial determination, as to whether a parent, brother, or sister, meets
the requirements for support from the miner set forth in the pertinent
provisions of section 412(a)(5) of the Act and whether proof of support
was submitted to the Administration within the time limits
[[Page 569]]
set forth in the Act or under the provisions described in
Sec. 410.214(d).
[36 FR 23760, Dec. 14, 1971, as amended at 37 FR 20651, Sept. 30, 1972;
41 FR 30114, July 22, 1976]
Sec. 410.615 Administrative actions that are not initial determinations.
Administrative actions which shall not be considered initial
determinations, but which may receive administrative review include, but
are not limited to, the following:
(a) The suspension of benefits pursuant to the criteria in section
203(h)(3) of the Social Security Act (42 U.S.C. 403 (h)(3)), pending
investigation and determination of any factual issue as to the
applicability of a reduction under section 412(b) of the Act equivalent
to the amount of a deduction because of excess earnings under section
203(b) of the Social Security Act (42 U.S.C. 403(b)) (see
Secs. 410.515(d) and 410.530).
(b) The denial of an application to be made representative payee for
and on behalf of a beneficiary under part B of title IV of the Act (see
Sec. 410.581).
(c) The certification of any two or more individuals of the same
family for joint payment of the total benefits payable to such
individuals (see Sec. 410.505).
(d) The withholding by the Administration in any month, for the
purpose of recovering an overpayment, of less than the full amount of
benefits otherwise payable in that month (see Sec. 410.560(c)).
(e) The authorization approving or regulating the amount of the fee
that may be charged or received by a representative for services before
the Administration (see Sec. 410.686b(e)).
(f) The disqualification or suspension of an individual from acting
as a representative in a proceeding before the Administration (see
Sec. 410.688).
(g) The determination by the Administration under the authority of
the Federal Claims Collection Act (31 U.S.C. 951-953) not to compromise
a claim for overpayment under part B of title IV of the Act, or not to
suspend or terminate collection of such a claim, or the determination to
compromise such a claim, including the compromise amount and the time
and manner of payment (see Sec. 410.565).
(h) Where the amount in controversy is less than $100, the denial of
a request for reimbursement of medical expenses (see Sec. 410.240(h))
which are claimed to have been incurred by the claimant in establishing
his claim for benefits, or the approval of such request for
reimbursement in an amount less than the amount requested. (Also see
Sec. 410.610(j).)
(i) The determination by the Social Security Administration that an
individual is not qualified for use of the expedited appeals process, as
provided in Sec. 410.629a.
(j) The denial by the Administration of a request to readjudicate a
claim and apply an Acquiescence Ruling.
[37 FR 20651, Sept. 30, 1972, as amended at 40 FR 53387, Nov. 18, 1975;
41 FR 30114, July 22, 1976; 55 FR 1019, Jan. 11, 1990]
Sec. 410.620 Notice of initial determination.
Written notice of an initial determination shall be mailed to the
party to the determination at his last known address, except that no
such notice shall be required in the case of a determination that a
party's entitlement to benefits has ended because of such party's death
(see Sec. 410.610(c)). If the initial determination disallows, in whole
or in part, the claim of a party, or if the initial determination is to
the effect that a party's entitlement to benefits has ended, or that a
reduction or adjustment is to be made in benefits, the notice of the
determination sent to the party shall state the specific reasons for the
determination. Such notice shall also inform the party of the right to
reconsideration (see Sec. 410.623). Where more than the correct amount
of payment has been made, see Sec. 410.561.
[37 FR 20652, Sept. 30, 1972]
Sec. 410.621 Effect of initial determination.
The initial determination shall be final and binding upon the party
or parties to such determination unless it is reconsidered in accordance
with Secs. 410.623 through 410.629, or it is revised in accordance with
Sec. 410.671.
[[Page 570]]
Sec. 410.622 Reconsideration and hearing.
Any party who is dissatisfied with an initial determination may
request that the Administration reconsider such determination, as
provided in Sec. 410.623. If a request for reconsideration is filed,
such action shall not constitute a waiver of the right to a hearing
subsequent to such reconsideration if the party requesting such
reconsideration is dissatisfied with the determination of the
Administration made on such reconsideration; and a request for a hearing
may thereafter be filed, as is provided in Sec. 410.630.
Sec. 410.623 Reconsideration; right to reconsideration.
The Administration shall reconsider an initial determination if a
written request for reconsideration is filed, as provided in
Sec. 410.624, by or for the party to the initial determination (see
Sec. 410.610). The Administration shall also reconsider an initial
determination if a written request for reconsideration is filed, as
provided in Sec. 410.624, by an individual as a widow, child, parent,
brother, sister, or representative of a decedent's estate, who makes a
showing in writing that his or her rights with respect to benefits, may
be prejudiced by such determination.
[37 FR 20652, Sept. 30, 1972]
Sec. 410.624 Time and place of filing request.
The request for reconsideration shall be made in writing and filed
at an office of the Social Security Administration within 60 days after
the date of receipt of notice of the initial determination, unless such
time is extended as specified in Sec. 410.668. For purposes of this
section, the date of receipt of notice of the initial determination
shall be presumed to be 5 days after the date of such notice, unless
there is a reasonable showing to the contrary.
[41 FR 47918, Nov. 1, 1976]
Sec. 410.625 Parties to the reconsideration.
The parties to the reconsideration shall be the person who was the
party to the initial determination (see Sec. 410.610) and any other
person referred to in Sec. 410.623 upon whose request the initial
determination is reconsidered.
Sec. 410.626 Notice of reconsideration.
If the request for reconsideration is filed by a person other than
the party to the initial determination, the Administration shall, before
such reconsideration, mail a written notice to such party at his last
known address, informing him that the initial determination is being
reconsidered. In addition, the Administration shall give such party a
reasonable opportunity to present such evidence and contentions as to
fact or law as he may desire relative to the determination.
Sec. 410.627 Reconsidered determination.
When a request for reconsideration has been filed, as provided in
Secs. 410.623 and 410.624, the Administration or the State agency, as
appropriate (see Sec. 410.601), shall reconsider the determination with
respect to disability or the initial determination in question and the
findings upon which it was based; and upon the basis of the evidence
considered in connection with the initial determination and whatever
other evidence is submitted by the parties or is otherwise obtained, the
Administration shall make a reconsidered determination affirming or
revising, in whole or in part, the findings and determination in
question.
Sec. 410.628 Notice of reconsidered determination.
Written notice of the reconsidered determination shall be mailed by
the Social Security Administration to the parties at their last known
addresses. The reconsidered determination shall state the specific
reasons therefor and inform the parties of their right to a hearing (see
Sec. 410.630), or, if appropriate, inform the parties of the
requirements for use of the expedited appeals process (see
Sec. 410.629a).
[40 FR 53387, Nov. 18, 1975]
Sec. 410.629 Effect of a reconsidered determination.
The reconsidered determination shall be final and binding upon all
parties to the reconsideration unless a hearing is requested in
accordance with Sec. 410.631 and a decision rendered or unless such
[[Page 571]]
determination is revised in accordance with Sec. 410.671, or unless the
expedited appeals process is used in accordance with Sec. 410.629a.
[40 FR 53388, Nov. 18, 1975]
Sec. 410.629a Expedited appeals process; conditions for use of such process.
In cases in which a reconsideration determination has been made or a
higher level of appeal has been reached, an expedited appeals process
may be used in lieu of the hearing and Appeals Council review, if the
following conditions are met:
(a) A reconsideration determination has been made by the Secretary;
and
(b) The individual is a party referred to in Sec. 410.629c; and
(c) The individual has filed a written request for the expedited
appeals process; and
(d) The individual has alleged, and the Secretary agrees, that the
only factor precluding a favorable determination with respect to a
matter referred to in Sec. 410.610, is a statutory provision which the
individual alleges to be unconstitutional; and
(e) Where more than one individual is a party referred to in
Sec. 410.629c, each and every party concurs in the request for the
expedited appeals process.
[40 FR 53388, Nov. 18, 1975]
Sec. 410.629b Expedited appeals process; place and time of filing request.
(a) Place of filing request. The request for the expedited appeals
process must be made in writing and filed:
(1) At an office of the Social Security Administration; or
(2) With a presiding officer.
(b) Time of filing request. The request for the expedited appeals
process must be filed at one of the following times:
(1) No later than 60 days after the date of receipt of notice of the
reconsidered determination, unless the time is extended in accordance
with the standards set out in Sec. 410.669 of this chapter. For purposes
of this paragraph, the date of receipt of notice of the reconsidered
determination shall be presumed to be 5 days after the date of such
notice, unless there is a reasonable showing to the contrary; or
(2) If a request for hearing has been timely filed (see
Sec. 410.631), at any time prior to the individual's receipt of notice
of the presiding officer's decision; or
(3) Within 60 days after the date of receipt of notice of the
presiding officer's decision or dismissal, unless the time is extended
in accordance with the standards set out in Sec. 410.669 of this
chapter. For purposes of this paragraph (b)(3), the date of receipt of
notice of the presiding officer's decision or dismissal shall be
presumed to be 5 days after the date of such notice, unless there is a
reasonable showing to the contrary; or
(4) If a request for review by the Appeals Council has been timely
filed (see Sec. 410.661), at any time prior to receipt by such
individual of notice of the Appeals Council's final action.
[40 FR 53388, Nov. 18, 1975, as amended at 41 FR 47918, Nov. 1, 1976]
Sec. 410.629c Expedited appeals process; parties.
The parties to the expedited appeals process shall be the person or
persons who were parties to the reconsideration determination in
question and, if appropriate, parties to the hearing.
[40 FR 53388, Nov. 18, 1975]
Sec. 410.629d Expedited appeals process; agreement requirements.
(a)(1) An authorized representative of the Secretary shall, if he
determines that all conditions for the use of the expedited appeals
process are met (see Sec. 410.629), prepare an agreement for signature
of the party (parties) and an authorized representative of the
Secretary.
(2)(i) Where a request for hearing has been filed, but prior to
issuance of a decision a request for the expedited appeals process is
filed, the Chief Administrative Law Judge of the Bureau of Hearings and
Appeals, or his designee, shall determine if the conditions required for
entering an agreement are met.
(ii) Where a hearing decision was the last action, or where a
request for review is pending before the Appeals Council, and a request
for the expedited appeals process is filed, the
[[Page 572]]
Chairman or Deputy Chairman of the Appeals Council, or the Chairman's
designee, shall determine if the conditions required for an agreement
are met.
(b) An agreement with respect to the expedited appeals process shall
provide that:
(1) The facts involved in the claim are not in dispute; and
(2) Except as indicated in paragraph (b)(3) of this section, the
Secretary's interpretation of the law is not in dispute; and
(3) The sole issue(s) in dispute is the application of a statutory
provision(s) which is described therein and which is alleged to be
unconstitutional by the party requesting use of such process; and
(4) Except for the provision challenged, the right(s) of the party
is established; and
(5) The determination or decision made by the Secretary is final for
purposes of section 205(g) of the Act.
[40 FR 53388, Nov. 18, 1975]
Sec. 410.629e Expedited appeals process; effect of agreement.
The agreement described in Sec. 410.629d, when signed, shall
constitute a waiver by the parties and the Secretary with respect to the
need of the parties to pursue the remaining steps of the administrative
appeals process, and the period for filing a civil action in a district
court of the United States, as provided in section 205(g) of the Social
Security Act, shall begin as of the date of receipt of notice by the
party (parties) that the agreement has been signed by the authorized
representative of the Secretary. Any civil action under the expedited
appeals process must be filed within 60 days after the date of receipt
of notice (a signed copy of the agreement will be mailed to the party
(parties) and will constitute notice) that the agreement has been signed
by the Secretary's authorized representative. For purposes of this
section, the date of receipt of notice of signing shall be presumed to
be 5 days after the date of the notice, unless there is a reasonable
showing to the contrary.
[49 FR 46369, Nov. 26, 1984]
Sec. 410.629f Effect of a request that does not result in agreement.
If a request for the expedited appeals process does not meet all the
conditions for the use of the process, the Secretary shall so advise the
party (parties) and shall treat the request as a request for
reconsideration, a hearing, or Appeals Council review, whichever is
appropriate.
[40 FR 53388, Nov. 18, 1975]
Sec. 410.630 Hearing; right to hearing.
An individual has a right to a hearing about any matter designated
in Sec. 410.610, if:
(a) An initial determination and a reconsideration of the initial
determination have been made by the Administration; and
(b) The individual is a party referred to in Sec. 410.632 or
Sec. 410.633; and
(c) The individual has filed a written request for a hearing under
the provisions described in Sec. 410.631.
Sec. 410.631 Time and place of filing request.
The request for hearing shall be made in writing and filed at an
office of the presiding officer, or the Appeals Council. Except where
the time is extended as provided in Sec. 410.669, the request for
hearing must be filed:
(a) Within 60 days after the date of receipt of notice of the
reconsidered determination by such individual. For purposes of this
section, the date of receipt of notice of the reconsidered
determinations shall be presumed to be 5 days after the date of such
notice, unless there is a reasonable showing to the contrary; or
(b) Where an effective date (not more than 30 days later than the
date of mailing) is expressly indicated in such notice, within 60 days
after such effective date.
[41 FR 47918, Nov. 1, 1976]
Sec. 410.632 Parties to a hearing.
The parties to a hearing shall be the person or persons who were
parties to the initial determination in question and the
reconsideration. Any other individual may be made a party if such
individual's rights with respect to benefits may be prejudiced by the
decision,
[[Page 573]]
upon notice given to him by the Administrative Law Judge to appear at
the hearing or otherwise present such evidence and contentions as to
fact or law as he may desire in support of his interest.
Sec. 410.633 Additional parties to the hearing.
The following individuals, in addition to those named in
Sec. 410.632, may also be parties to the hearing. A widow, child,
parent, brother, sister, or representative of a decedent's estate, who
makes a showing in writing that such individual's rights with respect to
benefits may be prejudiced by any decision that may be made, may be a
party to the hearing.
[37 FR 20652, Sept. 30, 1972]
Sec. 410.634 Administrative Law Judge.
The hearing provided for in this subpart F shall, except as herein
provided, be conducted by an Administrative Law Judge designated by the
Director of the Bureau of Hearings and Appeals of the Administration or
his delegate. In an appropriate case, the Director may designate another
Administrative Law Judge or a member or members of the Appeals Council
to conduct a hearing, in which case the provisions of this subpart F
governing the conduct of a hearing by an Administrative Law Judge shall
be applicable thereto.
Sec. 410.635 Disqualification of Administrative Law Judge.
No Administrative Law Judge shall conduct a hearing in a case in
which he is prejudiced or partial with respect to any party, or where he
has any interest in the matter pending for decision before him. Notice
of any objection which a party may have to the Administrative Law Judge
who will conduct the hearing, shall be made by such party at his
earliest opportunity. The Administrative Law Judge shall consider such
objection and shall, in his discretion, either proceed with the hearing
or withdraw. If the Administrative Law Judge withdraws, another
Administrative Law Judge shall be designated by the Director of the
Bureau of Hearings and Appeals of the Administration or his delegate to
conduct the hearing. If the Administrative Law Judge does not withdraw,
the objecting party may, after the hearing, present his objections to
the Appeals Council, as provided in Secs. 410.660 through 410.664 as
reasons why the Administrative Law Judge's decision should be revised or
a new hearing held before another Administrative Law Judge.
Sec. 410.636 Time and place of hearing.
The Administrative Law Judge (formerly called ``hearing examiner'')
shall fix a time and a place within the United States for the hearing,
written notice of which, unless waived by a party, shall be mailed to
the parties at their last known addresses or given to them by personal
service, not less than 10 days prior to such time. As used in this
section and in Sec. 410.647, the United States means the 50 States, the
District of Columbia, the Commonwealth of Puerto Rico, and the Virgin
Islands. Written notice of the objections of any party to the time and
place fixed for a hearing shall be filed by the objecting party with the
Administrative Law Judge at the earliest practicable opportunity (before
the time set for such hearing). Such notice shall state the reasons for
the party's objection and his choice as to the time and place within the
United States for the hearing. The Administrative Law Judge may, for
good cause, fix a new time and/or place within the United States for the
hearing.
[37 FR 20652, Sept. 30, 1972]
Sec. 410.637 Hearing on new issues.
At any time after a request for hearing has been made, as provided
in Sec. 410.631, but prior to the mailing of notice of the decision, the
Administrative Law Judge may, in his discretion, either on the
application of a party or his own motion, in addition to the matters
brought before him by the request for hearing, give notice that he will
also consider any specified new issue (see Sec. 410.610) whether
pertinent to the same or a related matter, and whether arising
subsequent to the request for hearing, which may affect the rights of
such party to benefits under this part even though the Administration
has not made an initial and reconsidered determination with respect to
such new issue: Provided, That notice of the
[[Page 574]]
time and place of the hearing on any new issue shall, unless waived, be
given to the parties within the time and manner specified in
Sec. 410.636: And provided further, That the determination involved is
not one within the jurisdiction of a State agency under a Federal-State
agreement entered into pursuant to section 413(b) of the Act. Upon the
giving of such notice, the Administrative Law Judge shall, except as
otherwise provided, proceed to hearing on such new issue in the same
manner as he would on an issue on which an initial and reconsidered
determination has been made by the Administration and a hearing
requested with respect thereto by a party entitled to such hearing.
Sec. 410.638 Change of time and place for hearing.
The Administrative Law Judge may change the time and place for the
hearing, either on his own motion or for good cause shown by a party.
The Administrative Law Judge may adjourn or postpone the hearing, or he
may reopen the hearing for the receipt of additional evidence at any
time prior to the mailing of notice to the party of the decision in the
case. Reasonable notice shall be given to the parties of any change in
the time or place of hearing or of an adjournment or a reopening of the
hearing.
Sec. 410.639 Subpenas.
When reasonably necessary for the full presentation of a case, an
Administrative Law Judge (formerly called ``hearing examiner'') or a
member of the Appeals Council, may, either upon his own motion or upon
the request of a party, issue subpenas for the attendance and testimony
of witnesses and for the production of books, records, correspondence,
papers, or other documents which are relevant and material to any matter
in issue at the hearing. Parties who desire the issuance of a subpena
shall, not less than 5 days prior to the time fixed for the hearing,
file with the Administrative Law Judge or at a district office of the
Administration a written request therefor, designating the witnesses or
documents to be produced, and describing the address or location thereof
with sufficient particularity to permit such witnesses or documents to
be found. The request for a subpena shall state the pertinent facts
which the party expects to establish by such witnesses or documents and
whether such facts could be established by other evidence without the
use of a subpena. Subpenas, as provided for above, shall be issued in
the name of the Secretary, and the Administration shall pay the cost of
the issuance and the fees and mileage of any witness so subpenaed, as
provided in section 205(d) of the Social Security Act.
[37 FR 20652, Sept. 30, 1972]
Sec. 410.640 Conduct of hearing.
Hearings shall be open to the parties and to such other persons as
the Administrative Law Judge deems necessary and proper. The
Administrative Law Judge shall inquire fully into the matters at issue
and shall receive in evidence the testimony of witnesses and any
documents which are relevant and material to such matters. If the
Administrative Law Judge believes that there is relevant and material
evidence available which has not been presented at the hearing, the
Administrative Law Judge may adjourn the hearing or, at any time prior
to the mailing of notice of the decision, reopen the hearing for the
receipt of such evidence. The order in which evidence and allegations
shall be presented and the procedure at the hearing generally, except as
these regulations otherwise expressly provide, shall be in the
discretion of the Administrative Law Judge and of such nature as to
afford the parties a reasonable opportunity for a fair hearing.
Sec. 410.641 Evidence.
Evidence may be received at the hearing even though inadmissible
under rules of evidence applicable to court procedures.
Sec. 410.642 Witnesses.
Witnesses at the hearing shall testify under oath or affirmation or
as directed by the Administrative Law Judge, unless they are excused by
the Administrative Law Judge for cause.
[[Page 575]]
The Administrative Law Judge may examine the witnesses and shall allow
the parties or their representatives to do so. If the Administrative Law
Judge conducts the examination of a witness, he may allow the parties to
suggest matters as to which they desire the witness to be questioned,
and the Administrative Law Judge shall question the witness with respect
to such matters if they are relevant and material to any issue pending
for decision before him.
Sec. 410.643 Oral argument and written allegations.
The parties, upon their request, shall be allowed a reasonable time
for the presentation of oral argument or for the filing of briefs or
other written statements of allegations as to facts or law. Where there
is more than one party to the hearing, copies of any brief or other
written statement shall be filed in sufficient number that they may be
made available to any party.
Sec. 410.644 Record of hearing.
A complete record of the proceedings at the hearing shall be made.
The record shall be transcribed in any case which is certified to the
Appeals Council without decision by the Administrative Law Judge (see
Secs. 410.654 and 410.657 to 410.659 inclusive), in any case where a
civil action is commenced against the Secretary (see Sec. 410.666), or
in any other case when directed by the Administrative Law Judge or the
Appeals Council.
Sec. 410.645 Joint hearings.
When two or more hearings are to be held, and the same or
substantially similar evidence is relevant and material to the matters
in issue at each such hearing, the Administrative Law Judge (formerly
called ``hearing examiner'') may fix the same time and place for each
hearing and conduct all such hearings jointly. However, where there is
no common issue of law or fact involved in two or more hearings and any
party objects to a joint hearing, a joint hearing may not be held. Where
joint hearings are held, a single record of the proceedings shall be
made and the evidence introduced in one case may be considered as
introduced in the others, and a separate or joint decision shall be
made, as appropriate.
[37 FR 20652, Sept. 30, 1972]
Sec. 410.646 Consolidated issues.
When one or more additional issues are raised by the Administrative
Law Judge pursuant to Sec. 410.637, such issues may, in the discretion
of the Administrative Law Judge, be consolidated for hearing and
decision with other issues pending before him upon the same request for
a hearing, whether or not the same or substantially similar evidence is
relevant and material to the matters in issue. A single decision may be
made upon all such issues.
Sec. 410.647 Waiver of right to appear and present evidence.
(a) General. Any party to a hearing shall have the right to appear
before the Administrative Law Judge (formerly called ``hearing
examiner''), personally or by representative, and present evidence and
contentions. If all parties are unwilling, unable, or waive their right
to appear before the Administrative Law Judge, personally or by
representative, it shall not be necessary for the Administrative Law
Judge to conduct an oral hearing as provided in Secs. 410.636 to
410.646, inclusive. A waiver of the right to appear and present evidence
and allegations as to facts and law shall be made in writing and filed
with the Administrative Law Judge. Such waiver may be withdrawn by a
party at any time prior to the mailing of notice of the decision in the
case. Even though all of the parties have filed a waiver of the right to
appear and present evidence and contentions at a hearing before the
Administrative Law Judge, the Administrative Law Judge may,
nevertheless, give notice of a time and place and conduct a hearing as
provided in Secs. 410.636 to 410.646, inclusive, if he believes that the
personal appearance and testimony of the party or parties would assist
him to ascertain the facts in issue in the case.
(b) Record as basis for decision. Where all of the parties have
waived their right to appear in person or through a representative and
the Administrative Law Judge does not schedule an oral hearing, the
decision shall be based on
[[Page 576]]
the record. Where a party residing outside the United States at a place
not readily accessible to the United States does not indicate that he
wishes to appear in person or through a representative before an
Administrative Law Judge, and there are no other parties to the hearing
who wish to appear, the Administrative Law Judge may decide the case on
the record. In any case where the decision is to be based on the record,
the Administrative Law Judge shall make a record of the relevant written
evidence, including applications, written statements, certificates,
affidavits, reports, and other documents which were considered in
connection with the initial determination and reconsideration, and
whatever additional relevant and material evidence the party or parties
may present in writing for consideration by the Administrative Law
Judge. Such documents shall be considered as all of the evidence in the
case.
[37 FR 20652, Sept. 30, 1972]
Sec. 410.648 Dismissal of request for hearing; by application of party.
With the approval of the Administrative Law Judge at any time prior
to the mailing of notice of the decision, a request for a hearing may be
withdrawn or dismissed upon the application of the party or parties
filing the request for such hearing. A party may request a dismissal by
filing a written notice of such request with the Administrative Law
Judge or orally stating such request at the hearing.
Sec. 410.649 Dismissal by abandonment of party.
With the approval of the Administrative Law Judge, a request for
hearing may also be dismissed upon its abandonment by the party or
parties who filed it. A party shall be deemed to have abandoned a
request for hearing if neither the party nor his representative appears
at the time and place fixed for the hearing and either (a) prior to the
time for hearing such party does not show good cause as to why neither
he nor his representative can appear or (b) within 10 days after the
mailing of a notice to him by the Administrative Law Judge to show
cause, such party does not show good cause for such failure to appear
and failure to notify the Administrative Law Judge prior to the time
fixed for hearing that he cannot appear.
Sec. 410.650 Dismissal for cause.
The presiding officer may, on his own motion, dismiss a hearing
request, either entirely or as to any stated issue, under any of the
following circumstances:
(a) Res judicata. Where there has been a previous determination or
decision by the Secretary with respect to the rights of the same party
on the same facts pertinent to the same issue or issues which has become
final either by judicial affirmance or, without judicial consideration,
upon the claimant's failure timely to request reconsideration, hearing,
or review, or to commence a civil action with respect to such
determination or decision (see Secs. 410.624, 410.631, 410.661, and
410.666).
(b) No right to hearing. Where the party requesting a hearing is not
a proper party under Sec. 410.632 or Sec. 410.633 or does not otherwise
have a right to a hearing under Sec. 410.630. This would include, but is
not limited to, an individual claiming as a representative payee
appointed pursuant to Sec. 410.581 (see Sec. 410.615).
(c) Hearing request not timely filed. Where the party has failed to
file a hearing request timely pursuant to Sec. 410.631 and the time for
filing such request has not been extended as provided in Sec. 410.669.
(d) Death of party. Where the party who filed the hearing request
dies and there is no information before the presiding officer or the
Social Security Administration showing that an individual who is not a
party may be prejudiced by the Social Security Administration's
determination which is the subject of the request for hearing: Provided;
That if, within 60 days after the date notice of such dismissal is
mailed to the original party at his last known address any such other
individual states in writing that he desires a hearing on such claim and
shows that he
[[Page 577]]
may be prejudiced by the Social Security Administration's initial
determination, then the dismissal of the request for hearing shall be
vacated.
[36 FR 23760, Dec. 14, 1971, as amended at 37 FR 20653, Sept. 30, 1972;
41 FR 54753, Dec. 15, 1976]
Sec. 410.651 Notice of dismissal and right to request review thereon.
Notice of the Administrative Law Judge's dismissal action shall be
given to the parties or mailed to them at their last known addresses.
Such notice shall advise the parties of their right to request review of
the dismissal action by the Appeals Council (see Sec. 410.660).
Sec. 410.652 Effect of dismissal.
The dismissal of a request for hearing shall be final and binding
unless vacated (see Sec. 410.653).
Sec. 410.653 Vacation of dismissal of request for hearing.
A presiding officer or the Appeals Council may, on request of the
party and for good cause shown, vacate any dismissal of a request for
hearing at any time within 60 days after the date of receipt of the
notice of dismissal by the party requesting the hearing at his last
known address. For purposes of this section, the date of receipt of the
dismissal notice shall be presumed to be 5 days after the date of such
notice, unless there is a reasonable showing to the contrary. In any
case where a presiding officer has dismissed the hearing request, the
Appeals Council may, on its own motion, within 60 days after the mailing
of such notice, review such dismissal and may, in its discretion vacate
such dismissal.
[41 FR 54753, Dec. 15, 1976]
Sec. 410.654 Administrative Law Judge's decision or certification to Appeals Council.
As soon as practicable after the close of a hearing, the
Administrative Law Judge, except as herein provided, shall make a
decision in the case or certify the case with a recommended decision to
the Appeals Council for decision (see Secs. 410.657 through 410.659). If
the Administrative Law Judge makes a decision in the case, such decision
shall be based upon the evidence adduced at the hearing (Secs. 410.636
through 410.646, inclusive) or otherwise included in the hearing record
(see Sec. 410.647). The decision shall be made in writing and contain
findings of fact and a statement of reasons. A copy of the decision
shall be mailed to the parties at their last known addresses.
Sec. 410.655 Effect of Administrative Law Judge's decision.
The decision of the Administrative Law Judge provided for in
Sec. 410.654, shall be final and binding upon all parties to the hearing
unless it is reviewed by the Appeals Council (see Secs. 410.663 through
410.665) or unless it is revised in accordance with Sec. 410.671, or
unless the expedited appeals process is used, in accordance with
Sec. 410.629a. If a party's request for review of the Administrative Law
Judge's decision is denied (see Sec. 410.662) or is dismissed (see
Sec. 410.667), such decision shall be final and binding upon all parties
to the hearing unless a civil action is filed in a district court of the
United States, as is provided in section 205(g) of the Social Security
Act, as incorporated in the Federal Coal Mine Health and Safety Act by
section 413(b) of that Act (see Sec. 410.670a), or unless the decision
is revised in accordance with Sec. 410.671.
[40 FR 53388, Nov. 18, 1975]
Sec. 410.656 Removal of hearing to Appeals Council.
The Appeals Council on its own motion may remove to itself any
request for hearing pending before an Administrative Law Judge. The
hearing on any matter so removed to the Appeals Council shall be
conducted in accordance with the requirements of Secs. 410.637 to
410.653, inclusive. Notice of such removal shall be mailed to the
parties at their last known addresses.
Sec. 410.657 Appeals Council proceedings on certification and review; procedure before Appeals Council on certification by the Administrative Law Judge.
When a case has been certified to the Appeals Council by an
Administrative Law Judge with his recommended decision (see
Sec. 410.654), the Administrative
[[Page 578]]
Law Judge shall mail notice of such action to the parties at their last
known addresses. The parties shall be notified of their right to file
with the Appeals Council within 10 days from the date of mailing of the
recommended decision, briefs or other written statements of exceptions
or allegations as to applicable fact and law, except in the case of
suspension or disqualification (see Sec. 410.694(b)). Upon request of
any party made within such 10-day period, a 10-day extension of time for
filing such briefs or statements shall be granted and, upon a showing of
good cause, such 10-day period may be extended, as appropriate. Where
there is more than one party, copies of such briefs or written
statements shall be filed in sufficient number that they may be made
available to any party requesting a copy or any other party designated
by the Appeals Council. Copies or a statement of the contents of the
documents or other written evidence received in evidence in the hearing
record, and a copy of the transcript of oral evidence adduced at the
hearing, if any, or a condensed statement thereof shall be made
available to any party upon request, upon payment of the cost, or if
such cost is not readily determinable, the estimated amount thereof,
unless, for good cause shown, such payment is waived. When a case has
been certified to the Appeals Council by an Administrative Law Judge for
decision any party shall be given, upon his request, a reasonable
opportunity to appear before the Appeals Council for the purpose of
presenting oral argument.
Sec. 410.658 Evidence in proceeding before Appeals Council.
Evidence in addition to that admitted into the hearing record by the
Administrative Law Judge may not be received as evidence except where it
appears to the Appeals Council that such additional evidence may affect
its decision. If no additional material is presented, but such evidence
is available and may affect its decision, the Appeals Council shall
receive such evidence or designate an Administrative Law Judge or member
of the Appeals Council before whom the evidence shall be introduced.
Before such additional evidence is received, notice that evidence will
be received with respect to certain matters shall be mailed to the
parties, unless such notice is waived, at their last known addresses,
and the parties shall be given a reasonable opportunity to present
evidence which is relevant and material to such matters. When the
additional evidence is presented to an Administrative Law Judge or a
member of the Appeals Council, a transcript or a condensed statement of
such evidence shall be made available to any party upon request, upon
payment of the cost, or if such cost is not readily determinable, the
estimated amount thereof, unless, for good cause shown, such payment is
waived.
Sec. 410.659 Decision of Appeals Council.
The decision of the Appeals Council, when a case has been certified
to it by an Administrative Law Judge along with his recommended
decision, shall be made in accordance with the provisions of
Sec. 410.665.
Sec. 410.660 Right to request review of Administrative Law Judge's decision or dismissal.
If an Administrative Law Judge has made a decision, as provided in
Sec. 410.654, or dismissed a request for hearing, as provided in
Secs. 410.648 through 410.650, any party thereto may request the Appeals
Council to review such decision or dismissal.
Sec. 410.661 Time and place of filing request.
The request for review shall be made in writing and filed with an
office of the Social Security Administration, or with a presiding
officer, or the Appeals Council. Such request shall be accompanied by
whatever documents or other evidence the party desires the Appeals
Council to consider in its review. The request for review must be filed
within 60 days after the date of receipt of notice of the presiding
officer's decision or dismissal, unless the time is extended as provided
in Sec. 410.669. For purposes of this section, the date of receipt of
notice of the presiding officer's decision or dismissal shall be
presumed
[[Page 579]]
to be 5 days after the date of such notice, unless there is a reasonable
showing to the contrary.
[41 FR 54753, Dec. 15, 1976]
Sec. 410.662 Action by Appeals Council on review.
The Appeals Council may dismiss (see Sec. 410.667) or, in its
discretion, deny or grant a party's request for review of a presiding
officer's decision, or may, on its own motion, within 60 days after the
date of the notice of such decision, reopen such decision for review or
for the purpose of dismissing the party's request for hearing for any
reason for which it could have been dismissed by the presiding officer
(see Secs. 410.648 through 410.650). Notice of the action by the Appeals
Council shall be mailed to the party at his last known address.
[41 FR 54753, Dec. 15, 1976]
Sec. 410.663 Procedure before Appeals Council on review.
(a) Availability of documents or other written statements. Whenever
the Appeals Council determines to review a presiding officer's decision
(except when the case is remanded to a presiding officer in accordance
with Sec. 410.665), the Appeals Council shall make available to any
party upon request, copies or a statement of the contents of the
documents or other written evidence upon which the presiding officer's
decision was based, and a copy of the transcript of oral evidence, if
any, or a condensed statement thereof, upon payment of the cost, or if
such cost is not readily determinable, the estimated amount thereof,
unless for
[[Page 580]]
good cause shown, such payment is waived.
(b) Filing briefs or other written statements. The parties shall be
given, upon request, a reasonable opportunity to file briefs or other
written statements of allegations as to fact and law. Copies of each
brief or other written statements, where there is more than one party,
shall be filed in sufficient number that they may be made available to
any party requesting a copy and to any other party designated by the
Appeals Council.
(c) Appearance to present oral argument. Any party may request an
appearance before the Appeals Council for the purpose of presenting oral
argument. Such request shall be granted where the Appeals Council
determines that a significant question of law or policy is presented or
where the Appeals Council is of the opinion that such oral argument
would be beneficial in rendering a proper decision in the case. Where
the request for appearance is granted, the party will be notified of the
time and place for the appearance at least 10 days prior to the date of
the scheduled appearance.
[41 FR 53790, Dec. 9, 1976]
Sec. 410.664 Evidence admissible on review.
(a) Admissibility of additional evidence. Evidence in addition to
that introduced at the hearing before the presiding officer, or
documents before the presiding officer where such hearing was waived
(see Sec. 410.647), may not be admitted except where it appears to the
Appeals Council that such evidence is relevant and material to an issue
before it and thus may affect its decision.
(b) Receipt of evidence by Presiding Officer. Where the Appeals
Council determines that additional evidence is needed for a sound
decision, it will remand the case to a presiding officer for receipt of
the evidence, further proceedings, and a new decision, except where the
Appeals Council can obtain the evidence more expeditiously and the
rights of the claimant will not be adversely affected.
(c) Receipt of evidence by Appeals Council. Where the Appeals
Council obtains the evidence itself, before such evidence is admitted
into the record, notice that evidence will be received with respect to
certain issues shall be mailed to the parties, unless such notice is
waived, at their last known addresses, and the parties shall be given a
reasonable opportunity to comment thereon and to present evidence which
is relevant and material to such issues.
(d) Copies of evidence. When additional evidence is presented to a
presiding officer or to the Appeals Council, a transcript or a condensed
statement of such evidence shall be made available to any party upon
request, upon payment of the cost, or if such cost is not readily
determinable, the estimated amount thereof, unless, for good cause
shown, such payment is waived.
[41 FR 53790, Dec. 9, 1976]
Sec. 410.665 Decision by Appeals Council or remanding of case.
(a) General. If a case is certified to the Appeals Council by an
Administrative Law Judge (see Sec. 410.654), the Appeals Council shall
make a decision. If the Appeals Council decides to review an
Administrative Law Judge's decision as provided in Sec. 410.662, the
Appeals Council may, upon such review, affirm, modify, or reverse the
decision of the Administrative Law Judge, or vacate such decision and
remand the case to an Administrative Law Judge either for rehearing and
the issuance of a decision thereon or to take further testimony in the
case and return it to the Appeals Council with a recommended decision
for decision by the Appeals Council. Where a case has been remanded by a
court for further consideration, the Appeals Council may proceed then to
make the decision or it may in turn remand the case to an Administrative
Law Judge with directions to return the case upon completion of the
necessary action to the Appeals Council with a recommended decision for
decision by the Appeals Council.
(b) Case remanded to an Administrative Law Judge. Where a case is
remanded to an Administrative Law Judge, he shall initiate such
additional proceedings and take such other action (under Secs. 410.632
through 410.655) as is directed by the Appeals Council in its order of
remand. The Administrative Law Judge may take any additional action not
inconsistent with the order of remand. Upon completion of all action
called for by the order of remand and any other action initiated by the
Administrative Law Judge, the Administrative Law Judge shall promptly
(1) issue a decision in writing which contains findings of fact and a
statement of reasons, or (2) when so directed by the Appeals Council,
return the case with his recommended decision to the Appeals Council for
its decision. A copy of the decision shall be mailed to each party at
his last known address. When a recommended decision is issued, the
Administrative Law Judge shall also notify each party of his right to
file with the Appeals Council within 10 days from the the date of
mailing of the recommended decision, briefs or other written statements
of exceptions and allegations as to applicable fact and law, except in
the case of suspension or disqualification (see Sec. 410.694(b)). Upon
request of any party made within such 10-day period, a 10-day extension
of time for filing such briefs or statements shall be granted and, upon
a showing of good cause, such 10-day period may be extended, as
appropriate.
(c) Decision by Appeals Council. A decision of the Appeals Council
shall be based upon the evidence received into the hearing record and
such further evidence as the Appeals Council may receive as provided in
Secs. 410.657, 410.658, 410.663, and 410.664. This decision shall be
made in writing and contain findings of fact, and a statement of
reasons. A copy of the decision shall be mailed to each party at his
last known address.
Sec. 410.666 Effect of Appeals Council's decision or refusal to review.
The Appeals Council may deny a party's request for review or it may
grant review and either affirm or reverse the Administrative Law Judge's
decision. The decision of the Appeals Council, or the decision of the
Administrative Law Judge where the request for review of such decision
is denied (see Sec. 410.662), shall be final and binding upon all
parties to the hearing unless a civil action is filed in a district
court of the United States under the provisions of section 205(g) of the
Social Security Act, as incorporated by section 413(b) of the Act (see
Sec. 410.670a), or unless the decision is revised under the provisions
described in Sec. 410.671.
[37 FR 20653, Sept. 30, 1972]
Sec. 410.667 Dismissal by Appeals Council.
The Appeals Council may dismiss a request for review or proceedings
before it under any of the following circumstances:
(a) Upon request of party. Proceedings pending before the Appeals
Council may, with the approval of the Appeals Council, be discontinued
and dismissed
[[Page 581]]
upon written application of the party or parties who filed the request
for review to withdraw such request.
(b) Death of party. Proceedings before the Appeals Council, whether
on request for review or review on the motion of the Appeals Council,
may be dismissed upon the death of a party only if the record
affirmatively shows that there is no prejudiced individual who wishes to
continue the action.
(c) Request for review not timely filed. A request for review of a
decision by an Administrative Law Judge shall be dismissed where the
party has failed to file a request for review within the time specified
in Sec. 410.661 and the time for filing such request has not been
extended as provided in Sec. 410.669.
Sec. 410.668 Extension of time to request reconsideration.
If a party to an initial determination desires to file a request for
reconsideration after the time for filing such request has passed (see
Sec. 410.624), such party may file a petition with the Administration
for an extension of time for the filing of such request. Such petition
shall be in writing and shall state the reasons why the request for
reconsideration was not filed within the required time. For good cause
shown, the component of the Administration which has jurisdiction over
the proceedings (see Sec. 410.601) may extend the time for filing the
request for reconsideration.
Sec. 410.669 Extension of time to request hearing or review or begin civil action.
(a) General. Any party to a reconsidered determination, a decision
of an Administrative Law Judge (formerly called hearing examiner), or a
decision of the Appeals Council (resulting from an initial determination
as described in Sec. 410.610), may petition for an extension of time for
filing a request for hearing or review or for commencing a civil action
in a district court of the United States, although the time for filing
such request or commencing such action (see Secs. 410.631 and 410.661
and section 205(g) of the Social Security Act as incorporated by section
413(b) of the Act), has passed. If an extension of the time fixed by
Sec. 410.631 for requesting a hearing before an Administrative Law Judge
is sought, the petition may be filed with an Administrative Law Judge.
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, an Administrative Law Judge or the Appeals Council, as the case
may be, may extend the time for filing such request or action.
(b) Where civil action commenced against wrong defendant. If a party
to a decision of the Appeals Council, or to a decision of the
Administrative Law Judge where the request for review of such decision
is denied (see Sec. 410.662), timely commences a civil action in a
district court as provided by section 205(g) of the Social Security Act
as incorporated by section 413(b) 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 Administration shall mail notice to such party 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) of the Social Security Act against the Secretary shall be deemed
to be extended to and including the 60th day following the date of
mailing of such notice.
[37 FR 20653, Sept. 30, 1972]
Sec. 410.670 Review by Appeals Council.
Where an Administrative Law Judge 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.
Sec. 410.670a Judicial review.
A civil action may be commenced in a district court of the United
States
[[Page 582]]
with respect to a decision of the Appeals Council, or to a decision of
the Administrative Law Judge (formerly called hearing examiner) where
the request for review of such decision is denied by the Appeals
Council, as provided in section 205 (g) and (h) of the Social Security
Act, as incorporated by section 413(b) of the Act.
[37 FR 20653, Sept. 30, 1972]
Sec. 410.670b Interim provision for the adjudication of certain claims filed prior to May 19, 1972.
(a) General. Section 6 of the Black Lung Benefits Act of 1972 added
a section 431 to title IV of the Federal Coal Mine Health and Safety Act
of 1969 which requires the Secretary to review, under the terms of the
1972 amendments, all claims for benefits which were filed prior to May
19, 1972 (the date of enactment of the 1972 amendments), and which were
either pending before the Administration on that date, or which had been
previously disallowed. Therefore, notwithstanding any other provision of
this subpart, and in keeping with the objective of providing for
effective and expeditious processing of the large backlog of claims that
have to be reexamined under the 1972 amendments, all such claims for
benefits will be adjudicated under the terms of the amended Act in
accordance with this section.
(b) Cases remanded by the Federal courts. (1) Those claims described
in paragraph (a) of this section which are remanded to the Secretary by
the Federal courts are reviewed in the Bureau of Hearings and Appeals.
(2) A decision will be rendered by an Administrative Law Judge
(formerly called hearing examiner) in all such claims which can be
allowed under the 1972 amendments on the evidence then of record. Such
decision shall be considered the Administrative Law Judge's decision
referred to in Sec. 410.654, and a party to the decision may request
review thereof by the Appeals Council in accordance with Secs. 410.660
and 410.661.
(3) A copy of such Administrative Law Judge's decision shall be
mailed to such party at his last known address. The date of mailing of
such decision will replace the date of any prior notice of an initial
determination for purposes of Sec. 410.672.
(4) Those claims described in paragraph (a) of this section which
are remanded to the Secretary by the Federal courts and which cannot be
allowed in the Bureau of Hearings and Appeals under the 1972 amendments
on the evidence then of record, shall be remanded to the
Administration's Bureau of Disability Insurance for a new determination.
(c) Claims pending in the Bureau of Hearings and Appeals. (1) Those
claims described in paragraph (a) of this section which are pending
before an Administrative Law Judge or the Appeals Council and which can
be allowed under the 1972 amendments on the evidence then of record will
be decided by an Administrative Law Judge or the Appeals Council, and
this decision will constitute the decision referred to in Sec. 410.654
or Sec. 410.665(c).
(2) A copy of such Administrative Law Judge's decision shall be
mailed to such party at his last known address. The date of mailing of
such decision will replace the date of any prior notice of an initial
determination for purposes of Sec. 410.672. Such claims pending before
an Administrative Law Judge or the Appeals Council which cannot be
allowed under the 1972 amendments on the evidence then of record shall
be remanded to the Administration's Bureau of Disability Insurance for a
new determination.
(d) Claims pending in, or remanded to the Bureau of Disability
Insurance. (1) Those claims described in paragraph (a) of this section
in which no timely request for hearing has been filed, or in which an
Administrative Law Judge or the Appeals Council has previously rendered
or affirmed a decision of disallowance, or which have been remanded by
the Bureau of Hearings and Appeals in accordance with paragraph (b) or
(c) of this section, shall be reviewed in the Bureau of Disability
Insurance and a new determination made.
(2) Written notice of such determination shall be mailed to the
party at his last known address. If such new determination is adverse to
the party in whole or in part, the notice shall explain the basis for
the determination.
[[Page 583]]
It shall also advise the party of his right to request further
consideration of the determination by the Bureau of Disability Insurance
if he has additional evidence or contentions as to fact or law to
submit. The effective date of such notice shall be a date 30 days later
than the date of mailing and shall be expressly indicated in such
notice.
(3) Before this effective date, the party may request further
consideration of the determination by the Bureau of Disability Insurance
if he has additional evidence or contentions as to fact or law to
submit. If such further consideration is requested timely, the new
determination referred to in paragraph (d)(1) of this section shall not
go into effect. Rather, his claim will be further considered as
requested and a further determination made. Written notice of the latter
determination will be mailed to the party at his last known address. If
this determination is adverse to the party in whole or in part, the
notice shall explain the basis for the determination. The effective date
of such notice shall be the date of mailing.
(4) The effective date of the determination referred to in paragraph
(d)(2) or (d)(3) of this section shall replace the date of any prior
notice of an initial determination for purposes of Sec. 410.672.
(5) A determination made as provided in paragraph (d)(1) or (d)(3)
of this section shall be final and binding upon all parties to such
determination unless a hearing is requested within 6 months of the
effective date of the notice of the determination, except where a
previously filed hearing request or request for review by the Appeals
Council or by a court is still pending, in which case the claim will be
referred to an Administrative Law Judge for a hearing.
(6) Those claims described in paragraph (a) of this section in which
no initial determination has been made shall be adjudicated under the
1972 amendments in accordance with the other provisions of this part.
[37 FR 20653, Sept. 30, 1972]
Sec. 410.670c Application of circuit court law.
The procedures which follow apply to administrative determinations
or decisions on claims involving the application of circuit court law.
(a) The Administration will apply a holding in a United States Court
of Appeals decision which it determines conflicts with its
interpretation of a provision of the Social Security Act or regulations
unless the Government seeks further review or the Administration
relitigates the issue presented in the decision in accordance with
paragraphs (c) and (d) of this section. The Administration will apply
the holding to claims at all levels of administrative adjudication
within the applicable circuit unless the holding, by its nature, applies
only at certain levels of adjudication.
(b) When the Administration determines that a United States Court of
Appeals holding conflicts with the Administration's interpretation of a
provision of the Social Security Act or regulations and the Government
does not seek further review or is unsuccessful on further review, the
Administration will issue a Social Security Acquiescence Ruling that
describes the administrative case and the court decision, identifies the
issue(s) involved, and explains how the Administration will apply the
holding, including, as necessary, how the holding relates to other
decisions within the applicable circuit. These rulings will generally be
effective on the date of their publication in the Federal Register and
will apply to all determinations and decisions made on or after that
date. If the Administration makes a determination or decision between
the date of a circuit court decision and the date an Acquiescence Ruling
is published, the claimant may request application of the published
ruling to the prior determination or decision. The claimant must first
demonstrate that application of the ruling could change the prior
determination or decision. A claimant may so demonstrate by submitting a
statement which cites the ruling and indicates what finding or statement
in the rationale of the prior determination or decision conflicts with
the ruling. If the claimant can so
[[Page 584]]
demonstrate, the Administration will readjudicate the claim at the level
at which it was last adjudicated in accordance with the ruling. Any
readjudication will be limited to consideration of the issue(s) covered
by the ruling and any new determination or decision on readjudication
will be subject to administrative and judicial review in accordance with
this subpart. A denial of a request for readjudication will not be
subject to further administrative or judicial review. If a claimant
files a request for readjudication within the sixty day appeal period
and that request is denied, the Administration shall extend the time to
file an appeal on the merits of the claim to sixty days after the date
that the request for readjudication is denied.
(c) After the Administration has published a Social Security
Acquiescence Ruling to reflect a holding of a United States Court of
Appeals on an issue, the Administration may decide under certain
conditions to relitigate that issue within the same circuit. The
Administration will relitigate only when the conditions specified in
paragraphs (c) (2) and (3) of this section are met, and, in general, one
of the events specified in paragraph (c)(1) of this section occurs.
(1) Activating events: (i) An action by both Houses of Congress
indicates that a court case on which an Acquiescence Ruling was based
was decided inconsistently with congressional intent, such as may be
expressed in a joint resolution, an appropriations restriction, or
enactment of legislation which affects a closely analogous body of law;
(ii) A statement in a majority opinion of the same circuit indicates
that the court might no longer follow its previous decision if a
particular issue were presented again;
(iii) Subsequent circuit court precedent in other circuits supports
the Administration's interpretation of the Social Security Act or
regulations on the issue(s) in question; or
(iv) A subsequent Supreme Court decision presents a reasonable legal
basis for questioning a circuit court holding upon which the
Administration bases a Social Security Acquiescence Ruling.
(2) The General Counsel of the Department of Health and Human
Services, after consulting with the Department of Justice, concurs that
relitigation of an issue and application of the Administration's
interpretation of the Social Security Act or regulations at the
administrative level within the circuit would be appropriate.
(3) The Administration publishes a notice in the Federal Register
that it intends to relitigate an issue, and that it will apply its
interpretation of the Social Security Act or regulations at the
administrative level within the circuit. The notice will explain why the
Administration made this decision.
(d) When the Administration decides to relitigate an issue, it will
provide a notice explaining its action to all affected claimants. In
adjudicating claims subject to relitigation, decisionmakers throughout
the SSA administrative review process will apply the Administration's
interpretation of the Social Security Act and regulations, but will also
state in written determinations or decisions how the claims would have
been decided under the circuit standard. Claims not subject to
relitigation will continue to be decided under the Acquiescence Ruling
in accordance with the circuit standard. So that affected claimants can
be readily identified and any subsequent decision of the circuit court
or the Supreme Court can be implemented quickly and efficiently, the
Administration will maintain a listing of all claimants who receive this
notice and will provide them the relief ordered by the court.
(e) The Administration will rescind as obsolete a Social Security
Acquiescence Ruling and apply its interpretation of the Social Security
Act or regulations by publishing a notice in the Federal Register when
any of the following events occurs:
(1) The Supreme Court overrules or limits a circuit court holding
that was the basis of an Acquiescence Ruling;
(2) A circuit court overrules or limits itself on an issue that was
the basis of an Acquiescence Ruling;
(3) A Federal law is enacted that removes the basis for the holding
in a decision of a circuit court that was the subject of an Acquiescence
Ruling; or
[[Page 585]]
(4) The Administration subsequently clarifies, modifies or revokes
the regulation or ruling that was the subject of a circuit court holding
that the Administration determined conflicts with its interpretation of
the Social Security Act or regulations, or it subsequently publishes a
new regulation(s) addressing an issue(s) not previously included in its
regulations when that issue(s) was the subject of a circuit court
holding that conflicted with its interpretation of the Social Security
Act or regulations and that holding was not compelled by the statute or
Constitution.
[55 FR 1019, Jan. 11, 1990]
Sec. 410.671 Revision for error or other reason; time limitation generally.
(a) Initial, revised or reconsidered determination. Except as
otherwise provided in Sec. 410.675, an initial, revised or reconsidered
determination (see Secs. 410.610 and 410.627) may be revised by the
appropriate component of the Administration having jurisdiction over the
proceedings (Sec. 410.601), on its own motion or upon the petition of
any party for a reason, and within the time period, prescribed in
Sec. 410.672.
(b) Decision or revised decision of an Administrative Law Judge or
the Appeals Council. Either upon the motion of the Administrative Law
Judge or the Appeals Council, as the case may be, or upon the petition
of any party to a hearing, except as otherwise provided in Sec. 410.675,
any decision of an Administrative Law Judge provided for in Sec. 410.654
or any revised decision may be revised by such Administrative Law Judge,
or by another Administrative Law Judge if the Administrative Law Judge
who issued the decision is unavailable, or by the Appeals Council for a
reason and within the time period prescribed in Sec. 410.672. Any
decision of the Appeals Council provided for in Sec. 410.665 or any
revised decision of the Appeals Council, may be revised by the Appeals
Council for a reason and within the time period prescribed in
Sec. 410.672. For the purpose of this paragraph (b), an Administrative
Law Judge 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.
Sec. 410.672 Reopening initial, revised or reconsidered determinations of the Administration and decisions of an Administrative Law Judge or the Appeals Council; finality of determinations and decisions.
An initial, revised or reconsidered determination of the
Administration or a decision, or revised decision of an Administrative
Law Judge or of the Appeals Council which is otherwise final under
Sec. 410.621, Sec. 410.629, Sec. 410.655, or Sec. 410.666 may be
reopened:
(a) Within 12 months from the date of the notice of the initial
determination (see Sec. 410.620), 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 Sec. 410.620) 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, revised, 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; 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--
(i) By reason of an unexplained absence from his or her residence
for a period of 7 years (see Sec. 410.240(g)(2)); or
(ii) By location or identification of his or her body; or
(5) Such initial, revised, 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.
[36 FR 23760, Dec. 14, 1971, as amended at 49 FR 46370, Nov. 26, 1984]
[[Page 586]]
Sec. 410.673 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 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.
Sec. 410.674 Finality of suspension of benefit payments for entire
taxable year because of earnings.
Notwithstanding the provisions in Sec. 410.672, 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(b)(1)(B) of the Social Security Act.
Sec. 410.675 Time limitation for revising finding suspending benefit payments for entire taxable year because of earnings.
No determination of the Administration or decision of an
Administrative Law Judge or the Appeals Council shall be revised after
the expiration of the normal period for requesting reconsideration,
hearing or review, with respect to such determination or decision (see
Secs. 410.624, 410.631, 410.661, and 410.666) 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(h)(1)(B) of the Social Security Act.
Sec. 410.675a Late completion of timely investigation.
The Administration may revise a determination or decision after the
applicable time period in Sec. 410.672(a) or Sec. 410.672(b) expires if
the Administration begins an investigation to determine whether to
revise the determination or decision before the applicable time period
expires. The Administration may begin the investigation based either on
a request by the party or an action by the Administration. The
investigation is a process of gathering facts after a determination or
decision has been reopened to determine if a revision of the
determination or decision is applicable.
(a) If the Administration has diligently pursued the investigation
to its conclusion, the Administration may revise the determination or
decision. The revision may be favorable or unfavorable to the party.
Diligently pursued means that in light of the facts and circumstances of
a particular case, the necessary action was undertaken and carried out
as promptly as the circumstances permitted. Diligent pursuit will be
presumed to have been met if the Administration concludes the
investigation and if necessary, revises the determination or decision
within 6 months from the date the Administration begins the
investigation.
(b) If the Administration has not diligently pursued the
investigation to its conclusion, the administration will revise the
determination or decision if a revision is applicable and if it will be
favorable to the party. The Administration will not revise the
determination or decision if it will be unfavorable to the party.
[49 FR 46370, Nov. 26, 1984]
Sec. 410.676 Notice of revision.
(a) When any determination or decision is revised, as provided in
Sec. 410.671 or Sec. 410.675, 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 section, the notice of revision shall inform the
parties of their right to a hearing as provided in Sec. 410.678.
(c)(1) Where an Administrative Law Judge or the Appeals Council
proposes to revise a decision under paragraph (a) of this section 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 Administrative Law
Judge or the Appeals Council, as the case may be, to revise such
decision,
[[Page 587]]
and unless hearing is waived, a hearing with respect to such proposed
revision shall be granted as provided in this subpart F.
(2) If a revised decision is appropriate, such decision shall be
rendered by the Administrative Law Judge 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 an Administrative Law Judge, any
party thereto may request review by the Appeals Council (Secs. 410.660
and 410.661) or the Appeals Council may review the decision on its own
motion (Sec. 410.662).
Sec. 410.677 Effect of revised determination.
The revision of a determination or decision shall be final and
binding upon all parties thereto unless a party authorized to do so (see
Sec. 410.676) files a written request for a hearing with respect to a
revised determination in accordance with Sec. 410.678 or a revised
decision is reviewed by the Appeals Council as provided in this subpart
F, or such revised determination or decision is further revised in
accordance with Sec. 410.672.
Sec. 410.678 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 Social Security Administration, or with a presiding
officer, or the Appeals Council, within 60 days after the date of
receipt of notice of the revised determination. Upon the filing of such
a request, a hearing with respect to such revision shall be held (see
Secs. 410.631 through 410.653) and a decision made in accordance with
the provisions of Sec. 410.654. For purposes of this section, the date
of receipt of notice of the revised determination shall be presumed to
be 5 days after the date of such notice, unless there is a reasonable
showing to the contrary.
[41 FR 47918, Nov. 1, 1976]
Sec. 410.679 Finality of findings with respect to other claims for benefits based on the disability or death of a miner.
Findings of fact made in a determination or decision in a claim by
one party for benefits may be revised in determining or deciding another
claim for benefits based on the disability or death of the same miner,
even though such findings may not be revised in the former claim because
of the provisions of Sec. 410.672.
Sec. 410.680 Imposition of reductions.
The imposition of reductions constitutes an initial determination
with respect to each month for which a reduction is imposed. A finding
that a reduction 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, pending
a determination as to the applicability of a reduction equivalent to the
amount of a deduction because of excess earnings under section 203(b) of
the Social Security Act shall not, however, constitute an initial
determination (see Sec. 410.615(a)).
Sec. 410.681 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.
Sec. 410.682 General applicability.
The provisions of Secs. 410.672, 410.673, and 410.679 to 410.681,
inclusive, shall be applicable notwithstanding any provisions to the
contrary in this subpart F.
Sec. 410.683 Certification of payment; determination or decision providing for payment.
When a determination or decision has been made under any provision
of Secs. 410.610 to 410.678, inclusive, to the effect that a payment or
payments of benefits should be made to any person, the Administration
shall, except as hereafter provided, certify to the U.S. Treasury
Department the name and address of the person to be paid, the amount of
the payment or payments and the time at which such payment or payments
should be made.
[[Page 588]]
Sec. 410.683a [Reserved]
Sec. 410.683b Transfer or assignment.
The Administration shall not certify 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 person
entitled to the payment under the Act.
[37 FR 20654, Sept. 30, 1972]
Sec. 410.684 Representation of party; appointment of representative.
A party in an action leading to an initial or reconsidered
determination, hearing, or review, as provided in Secs. 410.610 to
410.678, inclusive, may appoint as his representative in any such
proceeding only an individual who is qualified under Sec. 410.685 to act
as a representative. Where the individual appointed by a party to
represent him is not an attorney, written notice of the appointment must
be given, 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 Administration, with a hearing
examiner, or with the Appeals Council of the Administration, as the case
may be. 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.
Sec. 410.685 Qualifications of representative.
(a) Attorney. Any attorney in good standing who (1) 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, (2) has not been disqualified or suspended from
acting as a representative in proceedings before the Social Security
Administration, and (3) is not, pursuant to any provision of law,
otherwise prohibited from acting as a representative, may be appointed
as a representative in accordance with Sec. 410.684.
(b) Person other than attorney. Any person (other than an attorney
described in paragraph (a) of this section) who (1) is of good
character, in good repute, and has the necessary qualifications to
enable him to render valuable assistance to an individual in connection
with his claim, (2) has not been disqualified or suspended from acting
as a representative in proceedings before the Social Security
Administration, and (3) is not, pursuant to any provision of law,
otherwise prohibited from acting as a representative, may be appointed
as a representative in accordance with Sec. 410.684.
[36 FR 23760, Dec. 14, 1971, as amended at 37 FR 17707, Aug. 30, 1972]
Sec. 410.686 Authority of representative.
A representative, appointed and qualified as provided in
Secs. 410.684 and 410.685, may make or give, on behalf of the party he
represents, any request or notice relative to any proceeding before the
Administration under Part B of title IV of the Act, including
reconsideration, hearing and review, except that such representative may
not execute a claim for benefits, unless he is a person designated in
Sec. 410.222 as authorized to execute a claim. A representative shall be
entitled to present or elicit 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. (For fees to representatives for services
performed before the Administration for an individual, see
Sec. 410.686b.)
[37 FR 20654, Sept. 30, 1972]
Sec. 410.686a Proceedings before a State or Federal court.
(a) Representation of claimant in court proceeding. Any service
rendered by any representative in any proceeding before
[[Page 589]]
any State or Federal court shall not be considered services in any
proceeding before the Social Security Administration for purposes of
Secs. 410.686 and 410.686b. However, if the representative has also
rendered services in connection with the claim in any proceeding before
the Administration, as defined in Sec. 410.686e, he must specify what,
if any, amount of the fee he desires to charge is for services performed
before the Administration, and if he charges any fee for such services,
he must file the petition and furnish all of the information required by
Sec. 410.686c(a).
(b) Attorney fee allowed by a Federal court. In any case where a
Federal court in any proceeding under part B of title IV of the Act
renders a judgment favorable to a claimant who was represented before
the court by an attorney, and the court, pursuant to section 206(b) of
the Social Security Act, allows to the attorney as part of its judgment
a fee not in excess of 25 percent of the total of past-due benefits to
which the claimant is entitled by reason of the judgment, the
Administration may certify the amount of such fee for payment to such
attorney out of, but not in addition to, the amount of the past-due
benefits payable (see Sec. 410.686d(a)). No other fee may be certified
for direct payment to such attorney for such representation.
(c) Past-due benefits defined. The term past-due benefits as used in
paragraph (b) of this section means the total accumulated amount of
benefits payable under part B of title IV of the Act by reason of the
court's judgment through the month prior to the month of the judgment
favorable to the claimant who was represented by the attorney.
[37 FR 17707, Aug. 30, 1972]
Sec. 410.686b Fee for services performed for an individual before the Social Security Administration.
(a) General. A fee for services performed for an individual before
the Social Security Administration in any proceeding under part B of
title IV of the Act may be charged and received only as provided in
paragraph (b) of this section.
(b) Charging and receiving fee. An individual who desires to charge
or receive a fee for services rendered for an individual in any
proceeding under part B of title IV of the Act before the Administration
(see Sec. 410.686e), and who is qualified under Sec. 410.685, must file
a written petition therefor in accordance with Sec. 410.686c(a). The
amount of the fee he may charge or receive, if any, shall be determined
on the basis of the factors described in Sec. 410.686c(b) by an
authorized official of the appropriate component of the Administration,
where the services were concluded by an initial, reconsidered, or
revised determination, or by the Bureau of Hearings and Appeals where
there is a decision or action by a hearing examiner or the Appeals
Council of the Social Security Administration, as the case may be. Every
such fee which is charged or received must be approved as provided in
this section and no fee shall be charged or received which is in excess
of the amount so approved. This rule shall be applicable whether the fee
is charged to or received from a party to the proceeding or someone
else. Pursuant to section 206(a) of the Social Security Act, in the case
of a representative qualified as an attorney under Sec. 410.685(a), the
Administration may certify the amount of such fee, subject to the
limitations in Sec. 410.686d(b), for payment out of, but not in addition
to, the amount of past-due benefits payable.
(c) Past-due benefits defined. The term past-due benefits as used in
paragraph (b) of this section means the total accumulated amount of
benefits payable under part B of title IV of the Act by reason of the
favorable determination through the month prior to the month such
determination is effectuated.
(d) Notice of fee determination. Written notice of a fee
determination made in accordance with paragraph (b) of this section
shall be mailed to the representative and the claimant at their last
known addresses. Such notice shall inform the parties of the amount of
the fee authorized, the basis of the determination, the fact that the
Administration assumes no responsibility for payment except that
pursuant to section 206(a) of the Social Security Act the Administration
may certify payment to an attorney, and that each party may request an
administrative
[[Page 590]]
review of the determination within 30 days of the date of the notice.
(e) Administrative review of fee determination--(1) Request timely
filed. Administrative review of a fee determination will be granted if
either the representative or the claimant files a written request for
such review at an office of the Social Security Administration within 30
days after the date of the notice of the fee determination. The party
requesting the review shall send a copy of the request to the other
party. An authorized official of the Social Security Administration who
did not participate in the fee determination in question will review the
determination. Written notice of the decision made on the administrative
review shall be mailed to the representative and the claimant at their
last known addresses.
(2) Request not timely filed. Where the representative or the
claimant files a request for administrative review, in accordance with
paragraph (e)(1) of this subsection, but files such request more than 30
days after the date of the notice of the fee determination, the person
making the request shall state in writing the reasons why it was not
filed within the 30-day period. The Social Security Administration will
grant the review only if it determines that there was good cause for not
filing the request timely. For purposes of this section, good cause is
defined as any circumstance or event which would prevent the
representative or the claimant from filing the request for review within
such 30-day period or would impede his efforts to do so. Examples of
such circumstances include the following:
(i) The representative or claimant was seriously ill or had a
physical or mental impairment and such illness prevented him from
contacting the Social Security Administration in person or in writing;
(ii) There was a death or serious illness in the individual's
family;
(iii) Pertinent records were destroyed by fire or other accidental
cause;
(iv) The representative or claimant was furnished incorrect or
incomplete information by the Social Security Administration about his
right to request review;
(v) The individual failed to receive timely notice of the fee
determination;
(vi) The individual transmitted the request to another government
agency in good faith within such 30-day period and the request did not
reach the Social Security Administration until after such period had
expired.
[37 FR 17708, Aug. 30, 1972, as amended at 41 FR 10425, Mar. 11, 1976]
Sec. 410.686c Petition for approval of fee.
(a) Filing of petition. In accordance with Sec. 410.686b, to obtain
approval of a fee for services performed before the Social Security
Administration in any proceeding under the Act, a representative, upon
completion of the proceedings in which he rendered services, must file
at an office of the Social Security Administration a written petition
which shall contain the following information:
(1) The dates his services began and ended;
(2) An itemization of services rendered by him in a proceeding under
the Act, with the amount of time spent in hours, or parts thereof, on
each type of service;
(3) The amount of the fee he desires to charge for services
performed;
(4) The amount of fee requested or charged for services rendered in
the same matter before any State or Federal court;
(5) The amount and itemization of expenses incurred for which
reimbursement has been made or is expected;
(6) The special qualifications which enabled him to render valuable
serv-ices to the claimant (this requirement does not apply where the
representative is an attorney); and
(7) A statement showing that a copy of the petition was sent to the
person represented.
(b) Factors considered in evaluating a petition for fee. In
evaluating a request for approval of a fee, the purpose of the coal
miner's benefits program--to provide a measure of economic security for
the beneficiaries thereof--will be considered, together with the
following factors:
(1) The services performed (including type of service);
(2) The complexity of the case;
[[Page 591]]
(3) The level of skill and competence required in rendition of the
services;
(4) The amount of time spent on the case;
(5) The results achieved. (While consideration is always to be given
to the amount of benefits, if any, which are payable in a case, the
amount of fee will not be based on the amount of such benefits alone but
on a consideration of all of the factors listed in this section. The
benefits payable in a given claim are governed by specific statutory
provisions and by the occurrence of termination, deduction, or
nonpayment events specified in the law, factors which are unrelated to
efforts of the representative. In addition, the amount of accrued
benefits payable in a given claim is affected by the length of time that
has elapsed since the claimant became entitled to benefits.);
(6) The level of administrative review to which the claim was
carried within the Social Security Administration and the level of such
review at which the representative entered the proceedings; and
(7) The amount of the fee requested for services rendered, excluding
the amount of any expenses incurred, but including any amount previously
authorized or requested.
(c) Time limit for filing petition for approval of attorney fee. In
order for an attorney to receive direct payment of a fee authorized by
the Social Security Administration from a claimant's past-due benefits
(see Sec. 410.686d(b)), the petition for approval of a fee, or written
notice of the intent to file a petition, should be filed with the Social
Security Administration within 60 days of the date the notice of the
determination favorable to the claimant is mailed. Where no such
petition is filed within 60 days after the date such notice is mailed,
written notice shall be sent to the attorney and the claimant, at their
last known addresses, that the Social Security Administration will
certify for payment to the claimant all the past-due benefits unless the
attorney files within 20 days from the date of such notice a written
petition for approval of a fee pursuant to paragraphs (a) and (b) of
this section, or a written request for an extension of time. The
attorney shall send to the claimant a copy of any request for an
extension of time. Where the petition is not filed within this time, or
by the last day of any extension approved, the Social Security
Administration may certify the funds for payment to the claimant. Any
fee charged thereafter remains subject to Social Security Administration
approval but collection of any such approved fee shall be a matter
between the attorney and his client.
[37 FR 17708, Aug. 30, 1972; 37 FR 18525, Sept. 13, 1972, as amended at
41 FR 10425, Mar. 11, 1976]
Sec. 410.686d Payment of fees.
(a) Fees allowed by a Federal court. Subject to the limitations in
Sec. 410.686a (b), the Administration shall certify for payment direct
to attorneys, out of past-due benefits as defined in Sec. 410.686a(c),
the amount of fee allowed by a Federal court in a proceeding under part
B of title IV of the Act.
(b) Fees authorized by the Social Security Administration--(1)
Attorneys. Except as provided in Sec. 410.686c(c), in any case where the
Social Security Administration makes a determination favorable to a
claimant who was represented by an attorney as defined in
Sec. 410.685(a) in a proceeding before the Social Security
Administration and as a result of such determination past-due benefits,
as defined in Sec. 410.686b (c), are payable, the Social Security
Administration shall certify for payment to the attorney, out of such
benefits, whichever of the following is the smallest:
(i) Twenty-five percent of the total of such past-due benefits;
(ii) The amount of attorney's fee set by the Social Security
Administration, or
(iii) The amount agreed upon between the attorney and the claimant.
(2) Persons other than attorneys. The Administration assumes no
responsibility for the payment of any fee which a representative as
defined in Sec. 410.685(b) (person other than an attorney) has been
authorized to charge in accordance with the provisions of Sec. 410.686b
and will not deduct such fee from benefits payable under the Act to any
beneficiary.
(c) Responsibility of the Social Security Administration. The Social
Security Administration assumes no responsibility
[[Page 592]]
for the payment of a fee based on a revised determination where the
request for administrative review was not filed timely. (See paragraph
(b) of this section for payment of attorney fees authorized by the
Social Security Administration.)
[37 FR 17708, Aug. 30, 1972, as amended at 41 FR 10426, Mar. 11, 1976]
Sec. 410.686e Services rendered for an individual in a proceeding before the Administration under Part B of title IV of the Act.
Services rendered for an individual in a proceeding before the
Administration under part B of title IV of the Act consist of services
performed for an individual in connection with any claim before the
Secretary of Health, Education, and Welfare under part B of title IV of
the Act, including any services in connection with any asserted right
calling for an initial or reconsidered determination by the
Administration, and a decision or action by a hearing examiner or by the
Appeals Council of the Bureau of Hearings and Appeals of the
Administration, whether such determination, decision, or action is
rendered before or after remand of a claim by a court. Such services
include, but are not limited to, services in connection with a claim for
benefits; a request for modification of the amount of benefits; the
reinstatement of benefits; proof of support; and proof of employment as
a coal miner.
[37 FR 17708, Aug. 30, 1972]
Sec. 410.687 Rules governing the representation and advising of claimants and parties.
No attorney or other representative shall:
(a) With intent to defraud, in any matter willfully and knowingly
deceive, mislead, or threaten by word, circular, letter, or
advertisement, either oral or written, or any claimant or prospective
claimant or beneficiary with respect to benefits or any other initial or
continued right under the Act; or
(b) Knowingly charge or collect, or make any agreement to charge or
collect, directly or indirectly, any fee in connection with any claim
except under the circumstances prescribed in Sec. 410.686b, or knowingly
charge, demand, receive, or collect for services rendered before a
Federal court in connection with a claim under part B of title IV of the
Act, any amount in excess of that allowed by a court as described in
Sec. 410.686a(b).
(c) Knowingly make or participate in the making or presentation of
any false statement, representation, or claim as to any material fact
affecting the right of any person to benefits under part B of title IV
of the Act, or as to the amount of any benefits; or
(d) Divulge, except as may be authorized by regulations now or
hereafter prescribed by the Secretary, any information furnished or
disclosed to him by the Administration relating to the claim or
prospective claim of another person (see Sec. 410.120).
[37 FR 17709, Aug. 30, 1972]
Sec. 410.687a Effective date.
The provisions of Secs. 410.686a, 410.686b, 410.686c, 410.686d, and
410.686e, shall be effective upon publication in the Federal Register
(8-31-72), with respect to all claims processed thereafter, and shall
apply to all legal services rendered in connection with those claims for
which a fee has not been fully paid before this effective date,
notwithstanding the fact that fee contracts for such services may have
been entered into, or services rendered, before this effective date.
[37 FR 17709, Aug. 30, 1972]
Sec. 410.688 Disqualification or suspension of an individual from acting as a representative in proceedings before the Administration.
Whenever it appears that an individual has violated any of the rules
in Sec. 410.687, or has been convicted of a violation under section 206
of the Social Security Act, or has otherwise refused to comply with the
Secretary's rules and regulations governing representation of claimants
before the Administration, the Deputy Commissioner, or the Director (or
Deputy Director) of the Bureau of Retirement and Survivors Insurance of
the Administration may institute proceedings as herein provided to
suspend or disqualify such
[[Page 593]]
individual from acting as a representative in proceedings before the
Administration.
[37 FR 17709, Aug. 30, 1972]
Sec. 410.689 Notice of charges.
The Deputy Commissioner, or the Director (or Deputy Director) of the
Bureau of Retirement and Survivors Insurance of the Administration will
prepare a notice containing a statement of charges that constitutes the
basis for the proceeding against the individual. This notice will be
delivered to the individual charged, either by certified or registered
mail to his last known address or by personal delivery, and will advise
the individual charged to file an answer, within 30 days from the date
the notice was mailed, or was delivered to him personally, indicating
why he should not be suspended or disqualified from acting as a
representative before the Administration. This 30-day period may be
extended for good cause shown, by the Deputy Commissioner, or the
Director (or Deputy Director) of the Bureau of Retirement and Survivors
Insurance. The answer must be in writing under oath (or affirmation) and
filed with the Social Security Administration, Bureau of Hearings and
Appeals, Post Office Box 2518, Washington, DC 20013, with a copy to the
Bureau of Retirement and Survivors Insurance, 6401 Security Boulevard,
Baltimore, MD 21235, within the prescribed time limitation. If an
individual charged does not file an answer within the time prescribed,
he shall not have the right to present evidence. However, see
Sec. 410.692(g) relating to statements with respect to sufficiency of
the evidence upon which the charges are based or challenging the
validity of the proceedings.
[36 FR 23760, Dec. 14, 1971, as amended at 37 FR 17709, Aug. 30, 1972]
Sec. 410.690 Withdrawal of charges.
If an answer is filed or evidence is obtained that establishes, to
the satisfaction of the Deputy Commissioner, or the Director (or Deputy
Director) of the Bureau of Retirement and Survivors Insurance of the
Administration, that reasonable doubt exists about whether the
individual charged should be suspended or disqualified from acting as a
representative before the Administration, the charges may be withdrawn.
The notice of withdrawal shall be mailed to the individual charged at
his last known address.
Sec. 410.691 Referral to Bureau of Hearings and Appeals for hearing and decision.
If action is not taken to withdraw the charges before the expiration
of 15 days after the time within which an answer may be filed, the
record of the evidence in support of the charges shall be referred to
the Bureau of Hearings and Appeals of the Administration with a request
for a hearing and a decision on the charges.
Sec. 410.692 Hearing on charges.
(a) Hearing officer. Upon receipt of the notice of charges, the
record, and the request for hearing (see Sec. 410.691), the Director,
Bureau of Hearings and Appeals of the Administration or his delegate
shall designate an Administrative Law Judge to act as a hearing officer
to hold a hearing on the charges. No hearing officer shall conduct a
hearing in a case in which he is prejudiced or partial with respect to
any party or where he has any interest in the matter pending for
decision before him. Notice of any objection which a party to the
hearing may have to the hearing officer who has been designated to
conduct the hearing shall be made at the earliest opportunity. The
hearing officer shall consider the objection(s) and shall, in his
discretion, either proceed with the hearing or withdraw. If the hearing
officer withdraws, another hearing officer shall be designated as
provided in this section to conduct the hearing. If the hearing officer
does not withdraw, the objecting party may, after the hearing, present
his objections to the Appeals Council as reason why he believes the
hearing officer's decision should be revised or a new hearing held
before another hearing officer.
(b) Time and place of hearing. The hearing officer shall notify the
individual charged and the Deputy Commissioner, or the Director (or
Deputy Director) of the Bureau of Retirement
[[Page 594]]
and Survivors Insurance of the Administration, of the time and place for
a hearing on the charges. The notice of the hearing shall be mailed to
the individual charged at his last known address and to the Deputy
Commissioner, or the Director (or Deputy Director) of the Bureau of
Retirement and Survivors Insurance, not less than 20 days prior to the
date fixed for the hearing.
(c) Change of time and place for hearing. The hearing officer may
change the time and place for the hearing (see paragraph (b) of this
section) either on his own motion or at the request of a party for good
cause shown. The hearing officer may adjourn or postpone the hearing, or
he may reopen the hearing for the receipt of additional evidence at any
time prior to the mailing of notice of the decision in the case (see
Sec. 410.693). Reasonable notice shall be given to the parties of any
change in the time or place of hearing or of any adjournment or
reopening of the hearing.
(d) Parties. A person against whom charges have been preferred under
the provisions of Sec. 410.688 shall be a party to the hearing. The
Deputy Commissioner, or the Director (or Deputy Director) of the Bureau
of Retirement and Survivors Insurance of the Administration, shall also
be a party to the hearing.
(e) Subpenas. Any party to the hearing may request the hearing
officer or a member of the Appeals Council to issue subpenas for the
attendance and testimony of witnesses and for the production of books,
records, correspondence, papers, or other documents which are relevant
and material to any matter in issue at the hearing. The hearing officer
may on his own motion issue subpenas for the same purposes when he deems
such action reasonably necessary for the full presentation of the facts.
Any party who desires the issuance of a subpena shall, not less than 5
days prior to the time fixed for the hearing, file with the hearing
officer a written request therefor, designating the witnesses or
documents to be produced, and describing the address or location thereof
with sufficient particularity to permit such witnesses or documents to
be found. The request for a subpena shall state the pertinent facts
which the party expects to establish by such witness or document and
whether such facts could be established by other evidence without the
use of a subpena. Subpenas, as provided for above, shall be issued in
the name of the Secretary of Health, Education, and Welfare, and the
Social Security Administration shall pay the cost of the issuance and
the fees and mileage of any witness so subpenaed, as provided in section
205(d) of the Social Security Act.
(f) Conduct of the hearing. The hearing shall be open to the parties
and to such other persons as the hearing officer or the individual
charged deems necessary or proper. The hearing officer shall inquire
fully into the matters at issue and shall receive in evidence the
testimony of witnesses and any documents which are relevant and material
to such matters: Provided, however, That if the individual charged has
filed no answer he shall have no right to present evidence but in the
discretion of the hearing officer may appear for the purpose of
presenting a statement of his contentions with regard to the sufficiency
of the evidence or the validity of the proceedings upon which his
suspension or disqualification, if it occurred, would be predicated or,
in his discretion, the hearing officer may make or recommend a decision
(see Sec. 410.693) on the basis of the record referred in accordance
with Sec. 410.691. If the individual has filed an answer and if the
hearing officer believes that there is relevant and material evidence
available which has not been presented at the hearing, the hearing
officer may at any time prior to the mailing of notice of the decision,
or submittal of a recommended decision, reopen the hearing for the
receipt of such evidence. The order in which the evidence and the
allegations shall be presented and the conduct of the hearing shall be
at the discretion of the hearing officer.
(g) Evidence. Evidence may be received at the hearing, subject to
the provision herein, even though inadmissible under the rules of
evidence applicable to court procedure. The hearing officer shall rule
on the admissibility of evidence.
[[Page 595]]
(h) Witnesses. Witnesses at the hearing shall testify under oath or
affirmation. The witnesses of a party may be examined by such party or
by his representative, subject to interrogation by the other party or by
his representative. The hearing officer may ask such questions as he
deems necessary. He shall rule upon any objection made by either party
as to the propriety of any question.
(i) Oral and written summation. The parties shall be given, upon
request, a reasonable time for the presentation of an oral summation and
for the filing of briefs or other written statements of proposed
findings of fact and conclusions of law. Copies of such briefs or other
written statements shall be filed in sufficient number that they may be
made available to any party in interest requesting a copy and to any
other party designated by the Appeals Council.
(j) Record of hearing. A complete record of the proceedings at the
hearing shall be made and transcribed in all cases.
(k) Representation. The individual charged may appear in person and
he may be represented by counsel or other representative.
(l) Failure to appear. If after due notice of the time and place for
the hearing, a party to the hearing fails to appear and fails to show
good cause as to why he could not appear, such party shall be considered
to have waived his right to be present at the hearing. The hearing
officer may hold the hearing so that the party present may offer
evidence to sustain or rebut the charges.
(m) Dismissal of charges. The hearing officer may dismiss the
charges in the event of the death of the individual charged.
(n) Cost of transcript. On the request of a party, a transcript of
the hearing before the hearing officer will be prepared and sent to the
requesting party upon the payment of cost, or if the cost is not readily
determinable, the estimated amount, thereof, unless for good cause such
payment is waived.
[36 FR 23760, Dec. 14, 1971, as amended at 37 FR 17709, Aug. 30, 1972]
Sec. 410.693 Decision by hearing officer.
(a) General. As soon as practicable after the close of the hearing,
the hearing officer shall issue a decision (or certify the case with a
recommended decision to the Appeals Council for decision under the rules
and procedures described in Secs. 410.657 through 410.659) which shall
be in writing and contain findings of fact and conclusions of law. The
decision shall be based upon the evidence of record. If the hearing
officer finds that the charges have been sustained, he shall either:
(1) Suspend the individual for a specified period of not less than 1
year, nor more than 5 years, from the date of the decision, or
(2) Disqualify the individual from further practice before the
Administration until such time as the individual may be reinstated under
Sec. 410.699.
A copy of the decision shall be mailed to the individual charged at his
last known address and to the Deputy Commissioner, or the Director (or
Deputy Director) of the Bureau of Retirement and Survivors Insurance,
together with notice of the right of either party to request the Appeals
Council to review the decision of the hearing officer.
(b) Effect of hearing officer's decision. The hearing officer's
decision shall be final and binding unless reversed or modified by the
Appeals Council upon review (see Sec. 410.697).
(1) If the final decision is that the individual is disqualified
from practice before the Administration, he shall not be permitted to
represent an individual in a proceeding before the Administration until
authorized to do so under the provisions of Sec. 410.699.
(2) If the final decision suspends the individual for a specified
period of time, he shall not be permitted to represent an individual in
a proceeding before the Administration during the period of suspension
unless authorized to do so under the provisions of Sec. 410.699.
Sec. 410.694 Right to request review of the hearing officer's decision.
(a) General. After the hearing officer has issued a decision, either
of the parties (see Sec. 410.692) may request the Appeals Council to
review the decision.
[[Page 596]]
(b) Time and place of filing request for review. The request for
review shall be made in writing and filed with the Appeals Council
within 30 days from the date of mailing the notice of the hearing
officer's decision, except where the time is extended for good cause.
The requesting party shall certify that a copy of the request for review
and of any documents that are submitted therewith (see Sec. 410.695)
have been mailed to the opposing party.
Sec. 410.695 Procedure before Appeals Council on review of hearing officer's decision.
The parties shall be given, upon request, a reasonable time to file
briefs or other written statements as to fact and law and to appear
before the Appeals Council for the purpose of presenting oral argument.
Any brief or other written statement of contentions shall be filed with
the Appeals Council, and the presenting party shall certify that a copy
has been mailed to the opposing party.
Sec. 410.696 Evidence admissible on review.
(a) General. Evidence in addition to that introduced at the hearing
before the hearing officer may not be admitted except where it appears
to the Appeals Council that the evidence is relevant and material to an
issue before it, and subject to the provisions in this section.
(b) Individual charged filed answer. Where it appears to the Appeals
Council that additional relevant material is available and the
individual charged filed an answer to the charges (see Sec. 410.689),
the Appeals Council shall require the production of such evidence and
may designate a hearing officer or member of the Appeals Council to
receive such evidence. Before additional evidence is admitted into the
record, notice that evidence will be received with respect to certain
issues shall be mailed to the parties, and each party shall be given a
reasonable opportunity to comment on such evidence and to present other
evidence which is relevant and material to the issues unless such notice
is waived.
(c) Individual charged did not file answer. Where the individual
charged filed no answer to the charges (see Sec. 410.689), evidence in
addition to that introduced at the hearing before the hearing officer
may not be admitted by the Appeals Council.
Sec. 410.697 Decision by Appeals Council on review of hearing officer's decision.
The decision of the Appeals Council shall be based upon evidence
received into the hearing record (see Sec. 410.692(j)) and such further
evidence as the Appeals Council may receive (see Sec. 410.696) and shall
either affirm, reverse, or modify the hearing officer's decision. The
Appeals Council, in modifying a hearing officer's decision suspending
the individual for a specified period shall in no event reduce a period
of suspension to less than 1 year, or in modifying a hearing officer's
decision to disqualify an individual shall in no event impose a period
of suspension of less than 1 year. Where the Appeals Council affirms or
modifies a hearing officer's decision, the period of suspension or
disqualification shall be effective from the date of the Appeals
Council's decision. Where a period of suspension or disqualification is
initially imposed by the Appeals Council, such suspension or
disqualification shall be effective from the date of the Appeals
Council's decision. The decision of the Appeals Council will be in
writing and a copy of the decision will be mailed to the individual at
his last known address and to the Deputy Commissioner, or the Director
(or Deputy Director) of the Bureau of Retirement and Survivors
Insurance.
[36 FR 23760, Dec. 14, 1971, as amended at 37 FR 17709, Aug. 30, 1972]
Sec. 410.698 Dismissal by Appeals Council.
The Appeals Council may dismiss a request for the review of any
proceedings instituted under Sec. 410.688 pending before it in any of
the following circumstances:
(a) Upon request of party. Proceedings pending before the Appeals
Council may be discontinued and dismissed upon written application of
the party or parties who filed the request for review provided there is
no party who objects to discontinuance and dismissal.
[[Page 597]]
(b) Death of party. Proceedings before the Appeals Council may be
dismissed upon death of a party against whom charges have been
preferred.
(c) Request for review not timely filed. A request for review of a
hearing officer's decision shall be dismissed when the party has failed
to file a request for review within the time specified in Sec. 410.694
and such time is not extended for good cause.
Sec. 410.699 Reinstatement after suspension or disqualification.
(a) General. An individual shall be automatically reinstated to
serve as representative before the Administration at the expiration of
any period of suspension. In addition, after 1 year from the effective
date of any suspension or disqualification, an individual who has been
suspended or disqualified from acting as a representative in proceedings
before the Administration may petition the Appeals Council for
reinstatement prior to the expiration of a period of suspension or
following a disqualification order. The petition for reinstatement shall
be accompanied by any evidence the individual wishes to submit. The
Appeals Council shall notify the Deputy Commissioner, or the Director
(or Deputy Director) of the Bureau of Retirement and Survivors
Insurance, of the receipt of the petition and grant him 30 days in which
to present a written report of any experiences which the Administration
may have had with the suspended or disqualified individual during the
period subsequent to the suspension or disqualification. A copy of any
such report shall be made available to the suspended or disqualified
individual.
(b) Basis of action. A request for revocation of a suspension or a
disqualification shall not be granted unless the Appeals Council is
reasonably satisfied that the petitioner is not likely in the future to
conduct himself contrary to the provisions of the rules and regulations
of the Administration.
(c) Notice. Notice of the decision on the request for reinstatement
shall be mailed to the petitioner and a copy shall be mailed to the
Deputy Commissioner, or the Director (or Deputy Director) of the Bureau
of Retirement and Survivors Insurance.
(d) Effect of denial. If a petition for reinstatement is denied, a
subsequent petition for reinstatement shall not be considered prior to
the expiration of 1 year from the date of notice of the previous denial.
Sec. 410.699a Penalties for fraud.
The penalty for any person found guilty of willfully making any
false or misleading statement or representation for the purpose of
obtaining any benefit or statement or payment under this part shall be:
(a) A fine of up to $1,000, or
(b) Imprisonment for not more than 1 year, or
(c) Both (a) and (b).
(Sec. 411, Federal Coal Mine Health and Safety Act of 1969, as amended;
85 Stat. 793, 30 U.S.C. 921)
[43 FR 34781, Aug. 7, 1978]
Subpart G--Rules for the Review of Denied and Pending Claims Under the
Black Lung Benefits Reform Act (BLBRA) of 1977
Sec. 410.700 Background.
(a) The Black Lung Benefits Reform Act of 1977 broadens the
definitions of miner and pneumoconiosis and modifies the evidentiary
requirements necessary to establish entitlement to black lung benefits.
Section 435 of the Black Lung Benefits Reform Act of 1977 requires that
each claimant whose claim has been denied or is pending be given the
opportunity to have the claim reviewed under this Act. The purpose of
the subpart G is to explain the changes and the procedures, and rules
which are applicable with regard to the Social Security Administration's
review of part B claims in light of the BLBRA of 1977.
(b) Two Government agencies are responsible for the review of
claims. The Department of Health, Education, and Welfare, Social
Security Administration, upon the request of the claimant, is
responsible for the review of claims
[[Page 598]]
filed with the Social Security Administration under part B of title IV
of the Federal Coal Mine Health and Safety Act of 1969, as amended,
except those claims filed under section 415 of the Act. The Department
of Labor, Office of Workers' Compensation Programs is responsible for
the review of the following claims:
(1) Claims filed under part C of title IV of the Federal Coal Mine
Health and Safety Act of 1969, as amended;
(2) Part B claims filed under section 415 of the Act; and
(3) Those part B claims for which the claimant elects review by DOL.
The Department of Labor regulations explaining the review procedures for
these claims are published at 20 CFR part 727.
Sec. 410.701 Jurisdiction for determining entitlement under Part B.
In order for the Social Security Administration to approve a claim
under this subpart G, the evidence on file must show, in a living
miner's claim, that the miner was totally disabled due to pneumoconiosis
prior to July 1, 1973. In a survivor's claim, the evidence must show (1)
that the deceased miner was either totally disabled due to
pneumoconiosis at the time of death, or that death was due to
pneumoconiosis, and that death occurred prior to January 1, 1974, or (2)
that the miner was entitled to part B benefits at the time of death, and
that the survivor filed for benefits either within 6 months of such
death or before January 1, 1974, whichever is later, regardless of when
such death occurred.
Sec. 410.702 Definitions and terms.
The following definitions shall apply with regard to review under
this subpart G.
(a) Denied Claim defined. Denied claim means: (1) Any claim that was
filed with the Social Security Administration under part B of title IV
of the Act; and
(2) Entitlement to benefits was not established; and
(3) The time limit for any further appeal has expired.
(b) Pending Claim defined. Pending claim means: (1) Any claim that
was filed with the Social Security Administration under part B of title
IV of the Act; and
(2) Entitlement to benefits has not been established; and
(3) The time limit for any appeal has not expired or action is still
pending on an appeal which was requested timely, or on which an
extension of time to request appeal has been granted.
(c) Withdrawn Claim defined. Withdrawn claim means: Any claim that
was filed with the Social Security Administration under part B of title
IV of the Act which has been previously withdrawn at the request of the
claimant. This claim shall not be considered a pending or denied claim.
(d) Pneumoconiosis defined. In addition to the definition of
pneumoconiosis contained in Secs. 410.110(o) and 410.401(b),
pneumoconiosis means a chronic dust disease of the lung and its
sequelae, including respiratory and pulmonary impairments, arising out
of coal mine employment.
(e) Evidence on file defined. Evidence on file is information in the
black lung claims file, in the social security title II and title XVI
disability claims files, or in a person's earnings record, as of March
1, 1978.
(f) Determining total disability--the working miner. A miner shall
be considered totally disabled when pneumoconiosis prevents the miner
from engaging in gainful employment requiring the skills and abilities
comparable to those of any employment in a mine or mines in which he or
she previously engaged with some regularity and over a substantial
period of time.
(1) In the case of a living miner if there are changed circumstances
of employment indicative of reduced ability to perform the miner's usual
coal mine work, such miner's employment in a mine shall not be used as
conclusive evidence that the miner is not totally disabled.
(2) A deceased miner's employment in a mine at the time of death
shall not be used as conclusive evidence that the miner was not totally
disabled.
(3) Any miner not totally disabled by complicated pneumoconiosis who
has been determined to be eligible for benefits as a result of a claim
filed while
[[Page 599]]
the miner is engaged in coal mine employment shall be entitled to such
benefits if his or her employment terminates within one year after the
date the determination becomes final.
(g) Survivor entitlement for deceased miner--25 years or more coal
mine employment. If a miner died on or before March 1, 1978, and had
worked for 25 years or more in one or more coal mines before June 30,
1971, the eligible survivors of the miner shall be enititled to the
payment of benefits at the same rate as that under section 412(a)(2) of
the Act, unless it is established that at the time of the miner's death
the miner was not partially or totally disabled due to pneumoconiosis.
(h) Miner defined. A miner is any person who works or has worked in
or around a coal mine or coal preparation facility in the extraction,
preparation or transportation of coal, and any person who works or has
worked in coal mine construction or maintenance in or around a coal mine
or coal preparation facility. A coal mine construction or transportation
worker shall be considered a miner to the extent such individual is or
was exposed to coal dust as a result of his or her employment in or
around a coal mine or preparation facility. In the case of an individual
employed in coal transportation or coal mine construction, there shall
be a rebuttable presumption that such individual was exposed to coal
dust during all periods of such employment occurring in or around a coal
mine or coal preparation facility for purposes of determining whether
such individual is or was a miner. The presumption may be rebutted by
evidence which demonstrates that the individual was not regularly
exposed to coal dust during his or her employment in or around a coal
mine or preparation facility or that the individual was not regularly
employed in or around a coal mine or coal preparation facility. An
individual employed by a coal mine operator, regardless of the nature of
such individual's employment, shall be considered a miner unless such
individual was not employed in or around a coal mine or coal preparation
facility. A person who is or was a self employed miner, independent
contractor, or coal mine worker, as described in this paragraph, shall
be considered a miner for the purposes of this subpart.
(i) X-ray rereading prohibition. Where there is other evidence, such
as the kind in Sec. 410.414(c), that a miner has a pulmonary or
respiratory impairment, a board certified or board eligible
radiologist's interpretation of a chest X-ray taken by a radiologist or
qualified technician will be accepted if: (1) It is of a quality
sufficient to demonstrate the presence of pneumoconiosis and; (2) it was
submitted in support of a claim, unless it is established that the claim
has been fraudulently represented.
(j) Acceptance of autopsy reports. Unless there is reason to believe
that an autopsy report is not accurate, or that the condition of the
miner is being fraudulently misrepresented, an autopsy report concerning
the presence of pneumoconiosis and the stage of advancement of the
disease will be accepted if it is already on file.
(k) Acceptance of affidavits-miner deceased. Where there is no
medical evidence or other relevant evidence (see Sec. 410.414(c)) to
establish total disability or death due to pneumoconiosis of a deceased
miner, affidavits from the spouse and other individuals having knowledge
of the deceased miner's physical condition will be sufficient to
establish total disability or death due to pneumoconiosis if they are
already on file.
[43 FR 34781, Aug. 7, 1978, as amended at 44 FR 10058, Feb. 16, 1979]
Sec. 410.703 Adjudicatory rules for determining entitlement to benefits.
(a) General. Section 402(f)(2) of the Act provides that the criteria
and standards to be applied to a claim reviewed under section 435 of the
Act, for determining whether a miner is or was totally disabled due to
pneumoconiosis or died due to pneumoconiosis, shall be no more
restrictive than the criteria applicable to a claim filed with the
Social Security Administration on or before June 30, 1973, under part B
of title IV of the Act. In keeping with this provision, the interim
evidentiary rules and disability criteria contained in Sec. 410.490 will
be applicable for this review.
[[Page 600]]
(b) Payment provisions. The DOL has sole responsibility for
assigning liability for payment purposes. The DOL regulations relating
to the amount of benefits payable, the manner of payment and all other
provisions published at 20 CFR part 725 shall be applicable to a claim
approved under this subpart.
(c) Date from which benefits are payable. Benefits for claims
reviewed under this subpart G for which entitlement to benefits is
established under the BLBRA of 1977 are payable on a retroactive basis
for a period which begins no earlier than January 1, 1974.
Sec. 410.704 Review procedures.
(a) Notification. Each claimant who has filed a claim for benefits
under part B of title IV of the Act, and whose claim is either pending
before the Social Security Administration or the courts or has been
denied on or before March 1, 1978, will be mailed a notice advising
that, upon the request of the claimant, the claim shall be:
(1) Reviewed by the DHEW, Social Security Administration or DOL,
Office of Workers' Compensation Programs to see whether entitlement to
benefits may be established under the BLBRA of 1977; and
(2) If review by the Social Security Administration is requested,
the review will be made on the basis of the evidence on file as of March
1, 1978; and
(3) If review by the Office of Workers' Compensation Programs is
requested, the Office of Workers' Compensation Programs will provide an
opportunity for additional evidence to be submitted for consideration
prior to a determination.
(b) Where the claimant is mentally incompetent or physically
incapable, or is a minor, review of the claim may be elected by those
people described in Sec. 410.222. Where the original claimant is
deceased, any person who may be entitled to benefits as a survivor of
the claimant, including those described in Sec. 410.570(c), may elect
review of the claim.
(c) Effect of review of a pending part B claim under the BLBRA of
1977 on the pending claim. Part B claims pending before the Social
Security Administration or the courts will continue to be processed
under the old law at the same time that these claims are being reviewed
by the Social Security Administration, at the claimant's request, under
the BLBRA of 1977. Claimants would then have two separate and
independent claims for benefits pending. Where claims for benefits are
reviewed, upon request, under this subpart G and it is determined that
entitlement to benefits is established under the BLBRA of 1977, part C
benefits may be paid back to January 1, 1974. Where pending part B
claims continue to be processed under the old law and it is determined
that the claimant is entitled to benefits under the old law, then the
benefits may include payment for periods prior to January 1, 1974. Part
C benefits payable to an individual for periods beginning with January
1, 1974, are offset by part B benefits payable for the same periods to
the individual. Election by claimants to have their pending claims
reviewed under the BLBRA of 1977 for payment of benefits back to January
1, 1974, will not affect the processing of their pending part B claims
under the old law for payment of benefits prior to January 1, 1974.
(d) Response to notification. A request for review by the Social
Security Administration or the Office of Workers' Compensation Programs,
must be received by the Social Security Administration within 6 months
from the date on which the notice is mailed. Upon receipt, the request
will be dated and made a part of the claims file. If a request for
review by the Social Security Administration or the Office of Workers'
Compensation Program is not received by the Social Security
Administration within 6 months from the date the notice is mailed, the
claimant shall be considered to have waived the right of review afforded
by this subpart G unless good cause can be established for not
responding within this time period. Good cause may be established in the
following situations:
(1) Circumstances beyond the individual's control, such as extended
illness, mental or physical incapacity, or communication difficulties;
or
(2) Incorrect or incomplete information furnished the individual by
the Social Security Administration; or
[[Page 601]]
(3) Unusual or unavoidable circumstances, the nature of which
demonstrate that the individual could not reasonably be expected to have
been aware of the need to respond within this time period.
Good cause for failure to respond timely does not exist when there is
evidence of record that the individual was informed that he or she
should respond timely and the individual failed to do so because of
negligence or intent not to respond.
(e) Changing election. After a claimant has elected review by the
Social Security Administration, he or she may change the election any
time prior to the date an initial determination is made. If a claimant
has elected review by the Office of Workers' Compensation Programs. The
claimant may change the election if the Social Security Administration
has not yet forwarded the file to the Office of Workers' Compensation
Programs. Once the file is forwarded to the Office of Workers'
Compensation Programs, a claimant's right to change the election from
the Office of Workers' Compensation Programs to the Social Security
Administration is governed by the regulations of DOL.
(f) Social Security Administration review elected. (1) If review by
the Social Security Administration is requested, a complete review of
the evidence on file will be made to see if the file establishes
entitlement to benefits under the BLBRA of 1977. Evidence on file is
information in the black lung claims file, in the social security title
II and title XVI disability claims files, or in a person's earnings
record, as of March 1, 1978. In the case of a pending claim which is
being appealed, this review will not be delayed because of the pending
claim. If it is determined that eligibility to benefits can be
established, the claims file, including all evidence and other pertinent
material in the claims file, will be transferred to the Office of
Worker's Compensation Programs for processing and assignment of
liability in accordance with regulations published by DOL at 20 CFR part
727. The decision of the Social Security Administration approving the
claim will be binding upon the Office of Worker's Compensation Programs
as an initial determination of the claim. The Social Security
Administration will notify the claimant of its approval. If the claimant
disagrees with any part of the Social Security Administration's
determination of approval, the claimant may request review of this
determination by the Office of Worker's Compensation Programs. The
Social Security Administration has no authority under the BLBRA of 1977
to process an appeal of any determination made by it in reviewing these
denied and pending part B claims.
(2) If it is determined that the evidence on file is insufficient to
support an award of benefits, the claims file, including all evidence
and other pertinent material in the claims file, will be transferred to
the Office of Worker's Compensation Programs for further review in
accordance with regulations published at 20 CFR part 727. The Social
Security Administration will notify the claimant of this action.
(g) DOL, Office of Workers' Compensation Programs review elected. If
review by the Office of Workers' Compensation Programs is requested, the
claims file and all pertinent material will be forwarded to the Office
of Workers' Compensation Programs, without review by the Social Security
Administration, for processing by the Office of Workers' Compensation
Programs in accordance with regulations published at 20 CFR part 727.
[43 FR 34781, Aug. 7, 1978, as amended at 44 FR 10058, Feb. 16, 1979; 44
FR 12164, Mar. 6, 1979]
Sec. 410.705 Duplicate claims.
(a) Approved by the Social Security Administration--denied or
pending with the Office of Workers' Compensation Programs. A person
whose part B claim for benefits was approved by the Social Security
Administration and who also filed a part C claim with the Office of
Workers' Compensation Programs which is pending or has been denied shall
be entitled to a review of the part C claim by the Office of Workers'
Compensation Programs under the BLBRA of 1977.
(b) Denied or pending with the Social Security Administration--
approved by the Office of Workers' Compensation Programs. A person who
has filed a part B
[[Page 602]]
claim with the Social Security Administration which is pending or has
been denied and who has also filed a part C claim with the Office of
Workers' Compensation Programs, which has been approved, shall be
entitled, upon request, to a review of the pending or denied part B
claim in light of the BLBRA of 1977 by either the Social Security
Administration or the Office of Workers' Compensation Programs, in
accordance with this subpart.
(c) Pending or denied by the Social Security Administration and the
Office of Workers' Compensation Programs. A person who has filed a claim
both with the Social Security Administration and the Office of Workers'
Compensation Programs and whose claims are either pending with or have
been denied by both agencies shall have the claim reviewed under the
BLBRA of 1977 by the Social Security Administration if such review is
requested by the claimant. If the claim is not approved by the Social
Security Administration it shall be forwarded to the Office of Workers'
Compensation Programs for further review as provided in
Sec. 410.704(e)(2). During the pendency of review proceedings by the
Social Security Administration, if any, no action shall be taken by the
Secretary of Labor with respect to the part C claim which is pending or
has been denied by DOL. If the claimant does not respond to notification
of his or her right to review by the Social Security Administration
within 6 months of the notice (see Sec. 410.704(c)) unless the period is
enlarged for good cause shown, the Office of Workers' Compensation
Programs shall proceed under DOL's regulations at 20 CFR part 727 to
review the claim originally filed with the Secretary of Labor. If the
claimant, upon notification by the Social Security Administration of his
or her right to review (see Sec. 410.704(a)) requests that the claim
originally filed with the Social Security Administration be forwarded to
the Office of Workers' Compensation Programs for review, or if more than
one claim has been filed with the Secretary of Labor by the same
claimant, such claims shall be merged and processed with the first claim
filed with the Office of Workers' Compensation Programs.
Sec. 410.706 Effect of the Social Security Administration determination of entitlement.
Under section 435 of the BLBRA of 1977 a determination of
entitlement made by the Social Security Administration under this
subpart G is binding on the Office of Workers' Compensation Programs as
an initial determination of eligibility.
Sec. 410.707 Hearings and appeals.
The review of any determination made by the Social Security
Administration of a claim under this subpart will be made by the Office
of Workers' Compensation Programs. If the Social Security Administration
does not approve the claim following its review under this subpart, the
claim will be referred to the Office of Worker's Compensation Programs,
and the Office of Workers' Compensation Programs will automatically
review the claim. The Office of Workers' Compensation Programs will
provide an opportunity for the claimant to submit additional evidence if
it is needed to approve the claim. See Sec. 410.704(e)(2) of this
subpart. If the Social Security Administration approves the claim but
the claimant disagrees with any part of the Social Security
Administration's determination, he or she may request the Office of
Workers' Compensation Programs to review the Social Security
Administration's determination. See Sec. 410.704 (e)(1) of this subpart.
Pt. 416