[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
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  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