[Title 20 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2003 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
20
Parts 400 to 499
Revised as of April 1, 2003
Employees' Benefits
Containing a codification of documents of general
applicability and future effect
As of April 1, 2003
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2003
For sale by the Superintendent of Documents, U.S. Government Printing
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 20:
Chapter III--Social Security Administration 3
Finding Aids:
Table of CFR Titles and Chapters........................ 1097
Alphabetical List of Agencies Appearing in the CFR...... 1115
Chapter III Index....................................... 1125
List of CFR Sections Affected........................... 1133
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 20 CFR 401.5 refers
to title 20, part 401,
section 5.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
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To determine whether a Code volume has been amended since its
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EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
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inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
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Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate
volumes. For the period beginning January 1, 2001, a ``List of CFR
Sections Affected'' is published at the end of each CFR volume.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I). A list of CFR titles, chapters,
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An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
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The full text of the Code of Federal Regulations, the LSA (List of
CFR Sections Affected), The United States Government Manual, the Federal
Register, Public Laws, Public Papers, Weekly Compilation of Presidential
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[[Page vii]]
The Office of the Federal Register also offers a free service on the
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Raymond A. Mosley,
Director,
Office of the Federal Register.
April 1, 2003.
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THIS TITLE
Title 20--Employees' Benefits is composed of three volumes. The
first volume, containing parts 1-399, includes all current regulations
issued by the Office of Workers' Compensation Programs, Department of
Labor and the Railroad Retirement Board. The second volume, containing
parts 400-499, includes all current regulations issued by the Social
Security Administration. The third volume, containing part 500 to End,
includes all current regulations issued by the Employees' Compensation
Appeals Board, the Employment and Training Administration, the
Employment Standards Administration, the Benefits Review Board, the
Office of the Assistant Secretary for Veterans' Employment and Training
(all of the Department of Labor) and the Joint Board for the Enrollment
of Actuaries. The contents of these volumes represent all current
regulations codified under this title of the CFR as of April 1, 2003.
An Index to chapter III appears in the second volume.
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[[Page 1]]
TITLE 20--EMPLOYEES' BENEFITS
(This book contains parts 400 to 499)
--------------------------------------------------------------------
Part
chapter iii--Social Security Administration................. 401
[[Page 3]]
CHAPTER III--SOCIAL SECURITY ADMINISTRATION
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Part Page
400 [Reserved]
401 Privacy and disclosure of official records
and information......................... 5
402 Availability of information and records to
the public.............................. 24
403 Testimony by employees and the production of
reords and information in legal
proceedings............................. 41
404 Federal old-age, survivors and disability
insurance (1950- )................... 45
410 Federal Coal Mine Health and Safety Act of
1969, Title IV--Black lung benefits
(1969- )............................. 583
411 The Ticket to Work and Self-Sufficiency
Program................................. 669
416 Supplemental security income for the aged,
blind, and disabled..................... 707
422 Organization and procedures................. 1048
423 Service of process.......................... 1076
424-428 [Reserved]
429 Administrative regulations.................. 1077
430 Personnel................................... 1081
431-497 [Reserved]
498 Civil monetary penalties, assessments and
recommended exclusions.................. 1081
499 [Reserved]
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PART 400 [RESERVED]
PART 401--PRIVACY AND DISCLOSURE OF OFFICIAL RECORDS AND INFORMATION--Table of Contents
Subpart A--General
Sec.
401.5 Purpose of the regulations.
401.10 Applicability.
401.15 Limitations on scope.
401.20 Scope.
401.25 Terms defined.
Subpart B--The Privacy Act
401.30 Privacy Act responsibilities.
401.35 Your right to request records.
401.40 How to get your own records.
401.45 Verifying your identity.
401.50 Granting notification of or access to a record.
401.55 Special procedures for notification of or access to medical
records.
401.60 Access or notification of program records about two or more
individuals.
401.65 How to correct your record.
401.70 Appeals of refusals to correct or amend records.
401.75 Rights of parents or legal guardians.
401.80 Accounting for disclosures.
401.85 Exempt systems.
401.90 Contractors.
401.95 Fees.
Subpart C--Disclosure of Official Records and Information
401.100 Disclosure of records with the consent of the subject of the
record.
401.105 Disclosure of personal information without the consent of the
subject of the record.
401.110 Disclosure of personal information in nonprogram records
without the consent of the subject of the record.
401.115 Disclosure of personal information in program records without
the consent of the subject of the record.
401.120 Disclosures required by law.
401.125 Disclosures prohibited by law.
401.130 Freedom of Information Act.
401.135 Other laws.
401.140 General principles.
401.145 Safeguards against unauthorized redisclosure or use.
401.150 Compatible purposes.
401.155 Law enforcement purposes.
401.160 Health or safety.
401.165 Statistical and research activities.
401.170 Congress.
401.175 General Accounting Office.
401.180 Courts.
401.185 Other specific recipients.
401.190 Deceased persons.
401.195 Situations not specified in this part.
401.200 Blood donor locator service.
Appendix A to Part 401--Employee Standards of Conduct
Authority: Secs. 205, 702(a)(5), 1106, and 1141 of the Social
Security Act (42 U.S.C. 405, 902(a)(5), 1306, and 1320b-11); 5 U.S.C.
552 and 552a; 8 U.S.C. 1360; 26 U.S.C. 6103; 30 U.S.C. 923.
Source: 62 FR 4143, Jan. 29, 1997, unless otherwise noted.
Subpart A--General
Sec. 401.5 Purpose of the regulations.
(a) General. The purpose of this part is to describe the Social
Security Administration (SSA) policies and procedures for implementing
the requirements of the Privacy Act of 1974, 5 U.S.C. 552a and section
1106 of the Social Security Act concerning disclosure of information
about individuals, both with and without their consent. This part also
complies with other applicable statutes.
(b) Privacy. This part implements the Privacy Act by establishing
agency policies and procedures for the maintenance of records. This part
also establishes agency policies and procedures under which you can ask
us whether we maintain records about you or obtain access to your
records. Additionally, this part establishes policies and procedures
under which you may seek to have your record corrected or amended if you
believe that your record is not accurate, timely, complete, or relevant.
(c) Disclosure. This part also sets out the general guidelines which
we follow in deciding whether to make disclosures. However, we must
examine the facts of each case separately to decide if we should
disclose the information or keep it confidential.
Sec. 401.10 Applicability.
(a) SSA. All SSA employees and components are governed by this part.
SSA employees governed by this part include all regular and special
government employees of SSA; experts and consultants whose temporary
(not in
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excess of 1 year) or intermittent services have been procured by SSA by
contract pursuant to 5 U.S.C. 3109; volunteers where acceptance of their
services are authorized by law; those individuals performing gratuitous
services as permitted under conditions prescribed by the Office of
Personnel Management; and, participants in work-study or training
programs.
(b) Other entities. This part also applies to advisory committees
and councils within the meaning of the Federal Advisory Committee Act
which provide advice to: Any official or component of SSA; or the
President and for which SSA has been delegated responsibility for
providing services.
Sec. 401.15 Limitations on scope.
The regulations in this part do not--
(a) Make available to an individual records which are not retrieved
by that individual's name or other personal identifier.
(b) Make available to the general public records which are retrieved
by an individual's name or other personal identifier or make available
to the general public records which would otherwise not be available to
the general public under the Freedom of Information Act, 5 U.S.C. 552,
and part 402 of this title.
(c) Govern the maintenance or disclosure of, notification about or
access to, records in the possession of SSA which are subject to the
regulations of another agency, such as personnel records which are part
of a system of records administered by the Office of Personnel
Management.
(d) Apply to grantees, including State and local governments or
subdivisions thereof, administering federally funded programs.
(e) Make available records compiled by SSA in reasonable
anticipation of court litigation or formal administrative proceedings.
The availability of such records to the general public or to any subject
individual or party to such litigation or proceedings shall be governed
by applicable constitutional principles, rules of discovery, and
applicable regulations of the agency.
Sec. 401.20 Scope.
(a) Privacy. Sections 401.30 through 401.95, which set out SSA's
rules for implementing the Privacy Act, apply to all agency records
accessed by an individual's name or personal identifier subject to the
Privacy Act.
(b) Disclosure--(1) Program records. Regulations that apply to the
disclosure of information about an individual contained in SSA's program
records are set out in Secs. 401.100 through 401.200 of this part. These
regulations also apply to the disclosure of other Federal program
information which SSA maintains. That information includes:
(i) Health insurance records which SSA maintains for the Health Care
Financing Administration's (HCFA) programs under title XVIII of the
Social Security Act. We will disclose these records to HCFA. HCFA may
redisclose these records under the regulations applying to records in
HCFA's custody;
(ii) Black lung benefit records which SSA maintains for the
administration of the Federal Coal Mine Health and Safety Act; (However,
this information is not covered by section 1106 of the Social Security
Act.) and
(iii) Records kept by consultants. Information retained by a
medical, psychological or vocational professional concerning an
examination performed under contract in the social security program
shall not be disclosed except as permitted by this part.
(2) Nonprogram records. Section 401.110 sets out rules applicable to
the disclosure of nonprogram records, e.g., SSA's administrative and
personnel records.
[62 FR 4143, Jan. 29, 1997, as amended at 65 FR 16812, Mar. 30, 2000]
Sec. 401.25 Terms defined.
Access means making a record available to a subject individual.
Act means the Social Security Act.
Agency means the Social Security Administration.
Commissioner means the Commissioner of Social Security.
Disclosure means making a record about an individual available to or
releasing it to another party.
FOIA means the Freedom of Information Act.
[[Page 7]]
Individual when used in connection with the Privacy Act or for
disclosure of nonprogram records, means a living person who is a citizen
of the United States or an alien lawfully admitted for permanent
residence. It does not include persons such as sole proprietorships,
partnerships, or corporations. A business firm which is identified by
the name of one or more persons is not an individual. When used in
connection with the rules governing program information, individual
means a living natural person; this does not include corporations,
partnerships, and unincorporated business or professional groups of two
or more persons.
Information means information about an individual, and includes, but
is not limited to, vital statistics; race, sex, or other physical
characteristics; earnings information; professional fees paid to an
individual and other financial information; benefit data or other claims
information; the social security number, employer identification number,
or other individual identifier; address; phone number; medical
information, including psychological or psychiatric information or lay
information used in a medical determination; and information about
marital and family relationships and other personal relationships.
Maintain means to establish, collect, use, or disseminate when used
in connection with the term record; and, to have control over or
responsibility for a system of records when used in connection with the
term system of records.
Notification means communication to an individual whether he is a
subject individual. (Subject individual is defined further on in this
section.)
Program Information means personal information and records collected
and compiled by SSA in order to discharge its responsibilities under
titles I, II, IV part A, X, XI, XIV, XVI and XVIII of the Act and parts
B and C of the Federal Coal Mine Health and Safety Act.
Record means any item, collection, or grouping of information about
an individual that is maintained by SSA including, but not limited to,
information such as an individual's education, financial transactions,
medical history, and criminal or employment history that contains the
individual's name, or an identifying number, symbol, or any other means
by which an individual can be identified. When used in this part, record
means only a record which is in a system of records.
Routine use means the disclosure of a record outside SSA, without
the consent of the subject individual, for a purpose which is compatible
with the purpose for which the record was collected. It includes
disclosures required to be made by statutes other than the Freedom of
Information Act, 5 U.S.C. 552. It does not include disclosures which the
Privacy Act otherwise permits without the consent of the subject
individual and without regard to whether they are compatible with the
purpose for which the information is collected, such as disclosures to
the Bureau of the Census, the General Accounting Office, or to Congress.
Social Security Administration (SSA) means (1) that Federal agency
which has administrative responsibilities under titles, I, II, X, XI,
XIV, XVI, and XVIII of the Act; and (2) units of State governments which
make determinations under agreements made under sections 221 and 1633 of
the Act.
Social Security program means any program or provision of law which
SSA is responsible for administering, including the Freedom of
Information Act and Privacy Act. This includes our responsibilities
under parts B and C of the Federal Coal Mine Health and Safety Act.
Statistical record means a record maintained for statistical
research or reporting purposes only and not maintained to make
determinations about a particular subject individual.
Subject individual means the person to whom a record pertains.
System of records means a group of records under our control from
which information about an individual is retrieved by the name of the
individual or by an identifying number, symbol, or other identifying
particular. Single records or groups of records which are not retrieved
by a personal identifier are not part of a system of records. Papers
maintained by individual Agency employees which are prepared,
maintained, or discarded at the discretion of the employee and which are
not subject to the Federal Records Act, 44 U.S.C. 2901, are not part of
a system of
[[Page 8]]
records; provided, that such personal papers are not used by the
employee or the Agency to determine any rights, benefits, or privileges
of individuals.
We and our mean the Social Security Administration.
Subpart B--The Privacy Act
Sec. 401.30 Privacy Act responsibilities.
(a) Policy. Our policy is to protect the privacy of individuals to
the fullest extent possible while nonetheless permitting the exchange of
records required to fulfill our administrative and program
responsibilities, and responsibilities for disclosing records which the
general public is entitled to have under the Freedom of Information Act,
5 U.S.C. 552, and 20 CFR part 402.
(b) Maintenance of Records. We will maintain no record unless:
(1) It is relevant and necessary to accomplish an SSA function which
is required to be accomplished by statute or Executive Order;
(2) We obtain the information in the record, as much as it is
practicable, from the subject individual if we may use the record to
determine an individual's rights, benefits or privileges under Federal
programs;
(3) We inform the individual providing the record to us of the
authority for our asking him or her to provide the record (including
whether providing the record is mandatory or voluntary, the principal
purpose for maintaining the record, the routine uses for the record, and
what effect his or her refusal to provide the record may have on him or
her). Further, the individual agrees to provide the record, if the
individual is not required by statute or Executive Order to do so.
(c) First Amendment rights. We will keep no record which describes
how an individual exercises rights guaranteed by the First Amendment
unless we are expressly authorized:
(1) By statute,
(2) By the subject individual, or
(3) Unless pertinent to and within the scope of an authorized law
enforcement activity.
Sec. 401.35 Your right to request records.
The Privacy Act gives you the right to direct access to most records
about yourself that are in our systems of records. Exceptions to this
Privacy Act right include--
(a) Special procedures for access to certain medical records (see 5
U.S.C. 552a(f)(3) and Sec. 401.55);
(b) Unavailability of certain criminal law enforcement records (see
5 U.S.C. 552a(k), and Sec. 401.85); and
(c) Unavailability of records compiled in reasonable anticipation of
a court action or formal administrative proceeding.
Note to Sec. 401.35: The Freedom of Information Act (see 20 CFR part
402) allows you to request information from SSA whether or not it is in
a system of records.
Sec. 401.40 How to get your own records.
(a) Your right to notification and access. Subject to the provisions
governing medical records in Sec. 401.55, you may ask for notification
of or access to any record about yourself that is in an SSA system of
records. If you are a minor, you may get information about yourself
under the same rules as for an adult. Under the Privacy Act, if you are
the parent or guardian of a minor, or the legal guardian of someone who
has been declared legally incompetent, and you are acting on his or her
behalf, you may ask for information about that individual. You may be
accompanied by another individual of your choice when you request access
to a record in person, provided that you affirmatively authorize the
presence of such other individual during any discussion of a record to
which you are requesting access.
(b) Identifying the records. At the time of your request, you must
specify which systems of records you wish to have searched and the
records to which you wish to have access. You may also request copies of
all or any such records. Also, we may ask you to provide sufficient
particulars to enable us to distinguish between records on individuals
with the same name. The necessary particulars are set forth in the
notices of systems of records which are published in the Federal
Register.
(c) Requesting notification or access. To request notification of or
access to a record, you may visit your local social security office or
write to the manager of the SSA system of records. The
[[Page 9]]
name and address of the manager of the system is part of the notice of
systems of records. Every local social security office keeps a copy of
the Federal Register containing that notice. That office can also help
you get access to your record. You do not need to use any special form
to ask for a record about you in our files, but your request must give
enough identifying information about the record you want to enable us to
find your particular record. This identifying information should include
the system of records in which the record is located and the name and
social security number (or other identifier) under which the record is
filed. We do not honor requests for all records, all information, or
similar blanket requests. Before granting notification of or access to a
record, we may, if you are making your request in person, require you to
put your request in writing if you have not already done so.
Sec. 401.45 Verifying your identity.
(a) When required. Unless you are making a request for notification
of or access to a record in person, and you are personally known to the
SSA representative, you must verify your identity in accordance with
paragraph (b) of this section if:
(1) You make a request for notification of a record and we determine
that the mere notice of the existence of the record would be a clearly
unwarranted invasion of privacy if disclosed to someone other than the
subject individual; or,
(2) You make a request for access to a record which is not required
to be disclosed to the general public under the Freedom of Information
Act, 5 U.S.C. 552, and part 402 of this chapter.
(b) Manner of verifying identity--(1) Request in person. If you make
a request to us in person, you must provide at least one piece of
tangible identification such as a driver's license, passport, alien or
voter registration card, or union card to verify your identity. If you
do not have identification papers to verify your identity, you must
certify in writing that you are the individual who you claim to be and
that you understand that the knowing and willful request for or
acquisition of a record pertaining to an individual under false
pretenses is a criminal offense.
(2) Request by telephone. If you make a request by telephone, you
must verify your identity by providing identifying particulars which
parallel the record to which notification or access is being sought. If
we determine that the particulars provided by telephone are
insufficient, you will be required to submit your request in writing or
in person. We will not accept telephone requests where an individual is
requesting notification of or access to sensitive records such as
medical records.
(3) Requests not in person. Except as provided in paragraph (b)(2)
of this section, if you do not make a request in person, you must submit
a notarized request to SSA to verify your identity or you must certify
in your request that you are the individual you claim to be and that you
understand that the knowing and willful request for or acquisition of a
record pertaining to an individual under false pretenses is a criminal
offense.
(4) Requests on behalf of another. If you make a request on behalf
of a minor or legal incompetent as authorized under Sec. 401.40, you
must verify your relationship to the minor or legal incompetent, in
addition to verifying your own identity, by providing a copy of the
minor's birth certificate, a court order, or other competent evidence of
guardianship to SSA; except that you are not required to verify your
relationship to the minor or legal incompetent when you are not required
to verify your own identity or when evidence of your relationship to the
minor or legal incompetent has been previously given to SSA.
(5) Medical records--additional verification. You need to further
verify your identity if you are requesting notification of or access to
sensitive records such as medical records. Any information for further
verification must parallel the information in the record to which
notification or access is being sought. Such further verification may
include such particulars as the date or place of birth, names of
parents, name of employer or the specific times the individual received
medical treatment.
[[Page 10]]
Sec. 401.50 Granting notification of or access to a record.
(a) General. Subject to the provisions governing medical records in
Sec. 401.55 and the provisions governing exempt systems in Sec. 401.85,
upon receipt of your request for notification of or access to a record
and verification of your identity, we will review your request and grant
notification or access to a record, if you are the subject of the
record.
(b) Our delay in responding. If we determine that we will have to
delay responding to your request because of the number of requests we
are processing, a breakdown of equipment, shortage of personnel, storage
of records in other locations, etc., we will so inform you and tell you
when notification or access will be granted.
Sec. 401.55 Special procedures for notification of or access to medical records.
(a) General. In general, you have a right to notification of or
access to your medical records, including psychological records, as well
as to other records pertaining to you that we maintain. In this section,
we set forth special procedures as permitted by the Privacy Act for
notification of or access to medical records, including a special
procedure for notification of or access to medical records of minors.
(b) Medical records procedures--(1) Notification of or access to
medical records. (i) You may request notification of or access to a
medical record pertaining to you. Unless you are a parent or guardian
requesting notification of or access to a minor's medical record, you
must make a request for a medical record in accordance with this section
and the procedures in Secs. 401.45 through 401.50 of this part.
(ii) When you request medical information about yourself, you must
also name a representative in writing. The representative may be a
physician, other health professional, or other responsible individual
who would be willing to review the record and inform you of its contents
at your representative's discretion. If you do not designate a
representative, we may decline to release the requested information. In
some cases, it may be possible to release medical information directly
to you rather than to your representative.
(2) Utilization of the designated representative. You will be
granted direct access to your medical record if we can determine that
direct access is not likely to have an adverse effect on you. If we
believe that we are not qualified to determine, or if we do determine,
that direct access to you is likely to have an adverse effect, the
record will be sent to the designated representative. We will inform you
in writing that the record has been sent.
(c) Medical records of minors--(1) Requests by minors; notification
of or access to medical records to minors. A minor may request
notification of or access to a medical record pertaining to him or her
in accordance with paragraph (b) of this section.
(2) Requests on a minor's behalf; notification of or access to
medical records to an individual on a minor's behalf. (i) To protect the
privacy of a minor, we will not give to a parent or guardian direct
notification of or access to a minor's record, even though the parent or
guardian who requests such notification or access is authorized to act
on a minor's behalf as provided in Sec. 401.75 of this part.
(ii) A parent or guardian must make all requests for notification of
or access to a minor's medical record in accordance with this paragraph
and the procedures in Secs. 401.45 through 401.50 of this part. A parent
or guardian must at the time he or she makes a request designate a
family physician or other health professional (other than a family
member) to whom the record, if any, will be sent. If the parent or
guardian will not designate a representative, we will decline to release
the requested information.
(iii) Where a medical record on the minor exists, we will in all
cases send it to the physician or health professional designated by the
parent or guardian. If disclosure of the record would constitute an
invasion of the minor's privacy, we will bring that fact to the
attention of the physician or health professional to whom we send the
record. We will ask the physician or health professional to consider the
effect that disclosure of the record to
[[Page 11]]
the parent or guardian would have on the minor when the physician or
health professional determines whether the minor's medical record should
be made available to the parent or guardian. We will respond in
substantially the following form to the parent or guardian making the
request:
We have completed processing your request for notification of or access
to --------'s (Name of minor) medical records. Please be informed that
if any medical record was found pertaining to that individual, it has
been sent to your designated physician or health professional.
(iv) In each case where we send a minor's medical record to a
physician or health professional, we will make reasonable efforts to
inform the minor that we have given the record to the representative.
(d) Requests on behalf of an incapacitated adult. If you are the
legal guardian of an adult who has been declared legally incompetent,
you may receive his or her records directly.
Sec. 401.60 Access or notification of program records about two or more individuals.
When information about two or more individuals is in one record
filed under your social security number, you may receive the information
about you and the fact of entitlement and the amount of benefits payable
to other persons based on your record. You may receive information about
yourself or others, which is filed under someone else's social security
number, if that information affects your entitlement to social security
benefits or the amount of those benefits.
Sec. 401.65 How to correct your record.
(a) How to request a correction. This section applies to all records
kept by SSA (as described in Sec. 401.5) except for records of earnings.
(20 CFR 422.125 describes how to request correction of your earnings
record.) You may request that your record be corrected or amended if you
believe that the record is not accurate, timely, complete, relevant, or
necessary to the administration of a social security program. To amend
or correct your record, you should write to the manager identified in
the notice of systems of records which is published in the Federal
Register (see Sec. 401.40(c) on how to locate this information). The
staff at any social security office can help you prepare the request.
You should submit any available evidence to support your request. Your
request should indicate--
(1) The system of records from which the record is retrieved;
(2) The particular record which you want to correct or amend;
(3) Whether you want to add, delete or substitute information in the
record; and
(4) Your reasons for believing that your record should be corrected
or amended.
(b) What we will not change. You cannot use the correction process
to alter, delete, or amend information which is part of a determination
of fact or which is evidence received in the record of a claim in the
administrative appeal process. Disagreements with these determinations
are to be resolved through the SSA appeal process. (See subparts I and J
of part 404, and subpart N of part 416, of this chapter.) For example,
you cannot use the correction process to alter or delete a document
showing a birth date used in deciding your social security claim.
However, you may submit a statement on why you think certain information
should be altered, deleted, or amended, and we will make this statement
part of your file.
(c) Acknowledgment of correction request. We will acknowledge
receipt of a correction request within 10 working days, unless we can
review and process the request and give an initial determination of
denial or compliance before that time.
(d) Notice of error. If the record is wrong, we will correct it
promptly. If wrong information was disclosed from the record, we will
tell all those of whom we are aware received that information that it
was wrong and will give them the correct information. This will not be
necessary if the change is not due to an error, e.g., a change of name
or address.
(e) Record found to be correct. If the record is correct, we will
inform you in writing of the reason why we refuse to amend your record
and we will also inform you of your right to seek a review
[[Page 12]]
of the refusal and the name and address of the official to whom you
should send your request for review.
(f) Record of another government agency. If you request us to
correct or amend a record governed by the regulation of another
government agency, e.g., Office of Personnel Management, Federal Bureau
of Investigation, we will forward your request to such government agency
for processing and we will inform you in writing of the referral.
Sec. 401.70 Appeals of refusals to correct or amend records.
(a) Which decisions are covered. This section describes how to
appeal a decision made under the Privacy Act concerning your request for
correction of a record or for access to your records, those of your
minor child, or those of a person for whom you are the legal guardian.
We generally handle a denial of your request for information about
another person under the provisions of the FOIA (see part 402 of this
chapter). This section applies only to written requests.
(b) Appeal of refusal to amend or correct a record. (1) If we deny
your request to correct a record, you may request a review of that
decision. As discussed in Sec. 401.65(e), our letter denying your
request will tell you to whom to write.
(2) We will review your request within 30 working days from the date
of receipt. However, for a good reason and with the approval of the
Commissioner, or designee, this time limit may be extended up to an
additional 30 days. In that case, we will notify you about the delay,
the reason for it, and the date when the review is expected to be
completed. If, after review, we determine that the record should be
corrected, the record will be corrected. If, after review, we also
refuse to amend the record exactly as you requested, we will inform you-
-
(i) That your request has been refused and the reason;
(ii) That this refusal is SSA's final decision;
(iii) That you have a right to seek court review of this request to
amend the record; and
(iv) That you have a right to file a statement of disagreement with
the decision. Your statement should include the reason you disagree. We
will make your statement available to anyone to whom the record is
subsequently disclosed, together with a statement of our reasons for
refusing to amend the record. Also, we will provide a copy of your
statement to individuals whom we are aware received the record
previously.
(c) Appeals after denial of access. If, under the Privacy Act, we
deny your request for access to your own record, those of your minor
child, or those of a person for whom you are the legal guardian, we will
advise you in writing of the reason for that denial, the name and title
or position of the person responsible for the decision, and your right
to appeal that decision. You may appeal the denial decision to the
Commissioner of Social Security, 6401 Security Boulevard, Baltimore, MD
21235, within 30 days after you receive the notice denying all or part
of your request, or, if later, within 30 days after you receive
materials sent to you in partial compliance with your request. If we
refuse to release a medical record because you did not designate a
representative (Sec. 401.55) to receive the material, that refusal is
not a formal denial of access and, therefore, may not be appealed to the
Commissioner. If you file an appeal, either the Commissioner or a
designee will review your request and any supporting information
submitted and then send you a notice explaining the decision on your
appeal. We must make our decision within 20 working days after we
receive your appeal. The Commissioner or a designee may extend this time
limit up to 10 additional working days if one of the circumstances in 20
CFR 402.140 is met. We will notify you in writing of any extension, the
reason for the extension, and the date by which we will decide your
appeal. The notice of the decision on your appeal will explain your
right to have the matter reviewed in a Federal district court if you
disagree with all or part of our decision.
Sec. 401.75 Rights of parents or legal guardians.
For purposes of this part, a parent or guardian of any minor or the
legal guardian of any individual who has
[[Page 13]]
been declared incompetent due to physical or mental incapacity or age by
a court of competent jurisdiction is authorized to act on behalf of a
minor or incompetent individual. Except as provided in Sec. 401.45,
governing procedures for verifying an individual's identity, and
Sec. 401.55(c) governing special procedures for notification of or
access to a minor's medical records, if you are authorized to act on
behalf of a minor or legal incompetent, you will be viewed as if you
were the individual or subject individual.
Sec. 401.80 Accounting for disclosures.
(a) We will maintain an accounting of all disclosures of a record
for five years or for the life of the record, whichever is longer;
except that, we will not make accounting for:
(1) Disclosures under paragraphs (a) and (b) of Sec. 401.110; and,
(2) Disclosures of your record made with your written consent.
(b) The accounting will include:
(1) The date, nature, and purpose of each disclosure; and
(2) The name and address of the person or entity to whom the
disclosure is made.
(c) You may request access to an accounting of disclosures of your
record. You must request access to an accounting in accordance with the
procedures in Sec. 401.40. You will be granted access to an accounting
of the disclosures of your record in accordance with the procedures of
this part which govern access to the related record. We may, at our
discretion, grant access to an accounting of a disclosure of a record
made under paragraph (g) of Sec. 401.110.
Sec. 401.85 Exempt systems.
(a) General policy. The Privacy Act permits certain types of
specific systems of records to be exempt from some of its requirements.
Our policy is to exercise authority to exempt systems of records only in
compelling cases.
(b) Specific systems of records exempted. (1) Those systems of
records listed in paragraph (b)(2) of this section are exempt from the
following provisions of the Act and this part:
(i) 5 U.S.C. 552a(c)(3) and paragraph (c) of Sec. 401.80 of this
part which require that you be granted access to an accounting of
disclosures of your record.
(ii) 5 U.S.C. 552a (d) (1) through (4) and (f) and Secs. 401.35
through 401.75 relating to notification of or access to records and
correction or amendment of records.
(iii) 5 U.S.C. 552a(e)(4) (G) and (H) which require that we include
information about SSA procedures for notification, access, and
correction or amendment of records in the notice for the systems of
records.
(iv) 5 U.S.C. 552a(e)(3) and Sec. 401.30 which require that if we
ask you to provide a record to us, we must inform you of the authority
for our asking you to provide the record (including whether providing
the record is mandatory or voluntary, the principal purposes for
maintaining the record, the routine uses for the record, and what effect
your refusal to provide the record may have on you), and if you are not
required by statute or Executive Order to provide the record, that you
agree to provide the record. This exemption applies only to an
investigatory record compiled by SSA for criminal law enforcement
purposes in a system of records exempt under subsection (j)(2) of the
Privacy Act to the extent that these requirements would prejudice the
conduct of the investigation.
(2) The following systems of records are exempt from those
provisions of the Privacy Act and this part listed in paragraph (b)(1)
of this section:
(i) Pursuant to subsection (j)(2) of the Privacy Act, the
Investigatory Material Compiled for Law Enforcement Purposes System,
SSA.
(ii) Pursuant to subsection (k)(2) of the Privacy Act:
(A) The General Criminal Investigation Files, SSA;
(B) The Criminal Investigations File, SSA; and,
(C) The Program Integrity Case Files, SSA.
(D) Civil and Administrative Investigative Files of the Inspector
General, SSA/OIG.
(E) Complaint Files and Log. SSA/OGC.
(iii) Pursuant to subsection (k)(5) of the Privacy Act:
[[Page 14]]
(A) The Investigatory Material Compiled for Security and Suitability
Purposes System, SSA; and,
(B) The Suitability for Employment Records, SSA.
(iv) Pursuant to subsection (k)(6) of the Privacy Act, the Personnel
Research and Merit Promotion Test Records, SSA/DCHR/OPE.
(c) Notification of or access to records in exempt systems of
records. (1) Where a system of records is exempt as provided in
paragraph (b) of this section, you may nonetheless request notification
of or access to a record in that system. You should make requests for
notification of or access to a record in an exempt system of records in
accordance with the procedures of Secs. 401.35 through 401.55.
(2) We will grant you notification of or access to a record in an
exempt system but only to the extent such notification or access would
not reveal the identity of a source who furnished the record to us under
an express promise, and prior to September 27, 1975, an implied promise,
that his or her identity would be held in confidence, if:
(i) The record is in a system of records which is exempt under
subsection (k)(2) of the Privacy Act and you have been, as a result of
the maintenance of the record, denied a right, privilege, or benefit to
which you would otherwise be eligible; or,
(ii) The record is in a system of records which is exempt under
subsection (k)(5) of the Privacy Act.
(3) If we do not grant you notification of or access to a record in
a system of records exempt under subsections (k) (2) and (5) of the
Privacy Act in accordance with this paragraph, we will inform you that
the identity of a confidential source would be revealed if we granted
you notification of or access to the record.
(d) Discretionary actions by SSA. Unless disclosure of a record to
the general public is otherwise prohibited by law, we may at our
discretion grant notification of or access to a record in a system of
records which is exempt under paragraph (b) of this section.
Discretionary notification of or access to a record in accordance with
this paragraph will not be a precedent for discretionary notification of
or access to a similar or related record and will not obligate us to
exercise discretion to grant notification of or access to any other
record in a system of records which is exempt under paragraph (b) of
this section.
Sec. 401.90 Contractors.
(a) All contracts which require a contractor to maintain, or on
behalf of SSA to maintain, a system of records to accomplish an SSA
function must contain a provision requiring the contractor to comply
with the Privacy Act and this part.
(b) A contractor and any employee of such contractor will be
considered employees of SSA only for the purposes of the criminal
penalties of the Privacy Act, 5 U.S.C. 552a(i), and the employee
standards of conduct (see appendix A of this part) where the contract
contains a provision requiring the contractor to comply with the Privacy
Act and this part.
(c) This section does not apply to systems of records maintained by
a contractor as a result of his management discretion, e.g., the
contractor's personnel records.
Sec. 401.95 Fees.
(a) Policy. Where applicable, we will charge fees for copying
records in accordance with the schedule set forth in this section. We
may only charge fees where you request that a copy be made of the record
to which you are granted access. We will not charge a fee for searching
a system of records, whether the search is manual, mechanical, or
electronic. Where we must copy the record in order to provide access to
the record (e.g., computer printout where no screen reading is
available), we will provide the copy to you without cost. Where we make
a medical record available to a representative designated by you or to a
physician or health professional designated by a parent or guardian
under Sec. 401.55 of this part, we will not charge a fee.
(b) Fee schedule. Our Privacy Act fee schedule is as follows:
(1) Copying of records susceptible to photocopying--$.10 per page.
(2) Copying records not susceptible to photocopying (e.g., punch
cards or
[[Page 15]]
magnetic tapes)--at actual cost to be determined on a case-by-case
basis.
(3) We will not charge if the total amount of copying does not
exceed $25.
(c) Other Fees. We also follow Secs. 402.155 through 402.165 of this
chapter to determine the amount of fees, if any, we will charge for
providing information under the FOIA and Privacy Act.
Subpart C--Disclosure of Official Records and Information
Sec. 401.100 Disclosure of records with the consent of the subject of the record.
(a) Except as permitted by the Privacy Act and the regulations in
this chapter, or if required by the FOIA, we will not disclose your
record without your written consent. The consent must specify the
individual, organizational unit or class of individuals or
organizational units to whom the record may be disclosed, which record
may be disclosed and, where applicable, during which time frame the
record may be disclosed (e.g., during the school year, while the subject
individual is out of the country, whenever the subject individual is
receiving specific services). We will not honor a blanket consent to
disclose all your records to unspecified individuals or organizational
units. We will verify your identity and, where applicable (e.g., where
you consent to disclosure of a record to a specific individual), the
identity of the individual to whom the record is to be disclosed.
(b) A parent or guardian of a minor is not authorized to give
consent to a disclosure of the minor's medical record. See
Sec. 401.55(c) for the procedures for disclosures of or access to the
medical records of minors.
Sec. 401.105 Disclosure of personal information without the consent of the subject of the record.
(a) SSA maintains two categories of records which contain personal
information:
(1) Nonprogram records, primarily administrative and personnel
records which contain information about SSA's activities as a government
agency and employer, and
(2) Program records which contain information about SSA's clients
that it keeps to administer benefit programs under Federal law.
(b) We apply different levels of confidentiality to disclosures of
information in the categories in paragraphs (a) (1) and (2) of this
section. For administrative and personnel records, we apply the Privacy
Act restrictions on disclosure. For program records, we apply somewhat
more strict confidentiality standards than those found in the Privacy
Act. The reason for this difference in treatment is that our program
records include information about a much greater number of persons than
our administrative records, the information we must collect for program
purposes is often very sensitive, and claimants are required by statute
and regulation to provide us with the information in order to establish
entitlement for benefits.
Sec. 401.110 Disclosure of personal information in nonprogram records without the consent of the subject of the record.
The disclosures listed in this section may be made from our
nonprogram records, e.g., administrative and personnel records, without
your consent. Such disclosures are those:
(a) To officers and employees of SSA who have a need for the record
in the performance of their duties. The SSA official who is responsible
for the record may upon request of any officer or employee, or on his
own initiative, determine what constitutes legitimate need.
(b) Required to be disclosed under the Freedom of Information Act, 5
U.S.C. 552, and 20 CFR part 402.
(c) For a routine use as defined in Sec. 401.25 of this part.
Routine uses will be listed in any notice of a system of records. SSA
publishes notices of systems of records, including all pertinent routine
uses, in the Federal Register.
(d) To the Bureau of the Census for purposes of planning or carrying
out a census or survey or related activity pursuant to the provisions of
Title 13 U.S.C.
(e) To a recipient who has provided us with advance written
assurance that
[[Page 16]]
the record will be used solely as a statistical research or reporting
record; Provided, that, the record is transferred in a form that does
not identify the subject individual.
(f) To the National Archives of the United States as a record which
has sufficient historical or other value to warrant its continued
preservation by the United States Government, or for evaluation by the
Administrator of General Services or his designee to determine whether
the record has such value.
(g) To another government agency or to an instrumentality of any
governmental jurisdiction within or under the control of the United
States for a civil or criminal law enforcement activity if the activity
is authorized by law, and if the head of such government agency or
instrumentality has submitted a written request to us, specifying the
record desired and the law enforcement activity for which the record is
sought.
(h) To an individual pursuant to a showing of compelling
circumstances affecting the health or safety of any individual if a
notice of the disclosure is transmitted to the last known address of the
subject individual.
(i) To either House of Congress, or to the extent of matter within
its jurisdiction, any committee or subcommittee thereof, any joint
committee of Congress or subcommittee of any such joint committee.
(j) To the Comptroller General, or any of his authorized
representatives, in the course of the performance of the duties of the
General Accounting Office.
(k) Pursuant to the order of a court of competent jurisdiction.
Sec. 401.115 Disclosure of personal information in program records without the consent of the subject of the record.
This section describes how various laws control the disclosure or
confidentiality of personal information which we keep. We must consider
these laws in the following order:
(a) Some laws require us to disclose information (Sec. 401.120);
some laws require us to withhold information (Sec. 401.125). These laws
control whenever they apply.
(b) If no law of this type applies in a given case, then we must
look to FOIA principles. See Sec. 401.130.
(c) When FOIA principles do not require disclosure, we may disclose
information if both the Privacy Act and section 1106 of the Social
Security Act permit the disclosure.
Sec. 401.120 Disclosures required by law.
We disclose information when a law specifically requires it. The
Social Security Act requires us to disclose information for certain
program purposes. These include disclosures to the SSA Office of
Inspector General, the Federal Parent Locator Service, and to States
pursuant to an arrangement regarding use of the Blood Donor Locator
Service. Also, there are other laws which require that we furnish other
agencies information which they need for their programs. These agencies
include the Department of Veterans Affairs for its benefit programs, the
Immigration and Naturalization Service to carry out its duties regarding
aliens, the Railroad Retirement Board for its benefit programs, and to
Federal, State, and local agencies administering Aid to Families with
Dependent Children, Medicaid, unemployment compensation, food stamps,
and other programs.
Sec. 401.125 Disclosures prohibited by law.
We do not disclose information when a law specifically prohibits it.
The Internal Revenue Code generally prohibits us from disclosing tax
return information which we receive to maintain individual earnings
records. This includes, for example, amounts of wages and contributions
from employers. Other laws restrict our disclosure of certain
information about drug and alcohol abuse which we collect to determine
eligibility for social security benefits.
Sec. 401.130 Freedom of Information Act.
The FOIA requires us to disclose any information in our records upon
request from the public, unless one of several exemptions in the FOIA
applies. When the FOIA requires disclosure (see part 402 of this
chapter), the Privacy Act permits it. The public does not include
Federal agencies, courts, or
[[Page 17]]
the Congress, but does include State agencies, individuals,
corporations, and most other parties. The FOIA does not apply to
requests that are not from the public (e.g., from a Federal agency).
However, we apply FOIA principles to requests from these other sources
for disclosure of program information.
Sec. 401.135 Other laws.
When the FOIA does not apply, we may not disclose any personal
information unless both the Privacy Act and section 1106 of the Social
Security Act permit the disclosure. Section 1106 of the Social Security
Act requires that disclosures which may be made must be set out in
statute or regulations; therefore, any disclosure permitted by this part
is permitted by section 1106.
Sec. 401.140 General principles.
When no law specifically requiring or prohibiting disclosure applies
to a question of whether to disclose information, we follow FOIA
principles to resolve that question. We do this to insure uniform
treatment in all situations. The FOIA principle which most often applies
to SSA disclosure questions is whether the disclosure would result in a
``clearly unwarranted invasion of personal privacy.'' To decide whether
a disclosure would be a clearly unwarranted invasion of personal privacy
we consider--
(a) The sensitivity of the information (e.g., whether individuals
would suffer harm or embarrassment as a result of the disclosure);
(b) The public interest in the disclosure;
(c) The rights and expectations of individuals to have their
personal information kept confidential;
(d) The public's interest in maintaining general standards of
confidentiality of personal information; and
(e) The existence of safeguards against unauthorized redisclosure or
use.
Sec. 401.145 Safeguards against unauthorized redisclosure or use.
(a) The FOIA does not authorize us to impose any restrictions on how
information is used after we disclose it under that law. In applying
FOIA principles, we consider whether the information will be adequately
safeguarded against improper use or redisclosure. We must consider all
the ways in which the recipient might use the information and how likely
the recipient is to redisclose the information to other parties. Thus,
before we disclose personal information we may consider such factors as-
-
(1) Whether only those individuals who have a need to know the
information will obtain it;
(2) Whether appropriate measures to safeguard the information to
avoid unwarranted use or misuse will be taken; and
(3) Whether we would be permitted to conduct on-site inspections to
see whether the safeguards are being met.
(b) We feel that there is a strong public interest in sharing
information with other agencies with programs having the same or similar
purposes, so we generally share information with those agencies.
However, since there is usually little or no public interest in
disclosing information for disputes between two private parties or for
other private or commercial purposes, we generally do not share
information for these purposes.
Sec. 401.150 Compatible purposes.
(a) General. The Privacy Act allows us to disclose information,
without the consent of the individual, to any other party for routine
uses.
(b) Routine use. We publish notices of systems of records in the
Federal Register which contain a list of all routine use disclosures.
(c) Determining compatibility. We disclose information for routine
uses where necessary to carry out SSA's programs. It is also our policy
to disclose information for use in other programs which have the same
purposes as SSA programs if the information concerns eligibility,
benefit amounts, or other matters of benefit status in a social security
program and is relevant to determining the same matters in the other
program. For example, we disclose information to the Railroad Retirement
Board for pension and unemployment compensation programs, to the
Veterans Administration for its benefit program, to worker's
compensation programs, to State general
[[Page 18]]
assistance programs, and to other income maintenance programs at all
levels of government; we also disclose for health-maintenance programs
like Medicare and Medicaid, and in appropriate cases, for
epidemiological and similar research.
Sec. 401.155 Law enforcement purposes.
(a) General. The Privacy Act allows us to disclose information for
law enforcement purposes under certain conditions. Much of the
information in our files is especially sensitive or very personal.
Furthermore, participation in social security programs is mandatory, so
people cannot limit what information is given to us. Therefore, we
generally disclose information for law enforcement purposes only in
limited situations. Paragraphs (b) and (c) of this section discuss the
disclosures we generally make for these purposes.
(b) Serious crimes. SSA may disclose information for criminal law
enforcement purposes where a violent crime such as murder or kidnapping
has been committed and the individual about whom the information is
being sought has been indicted or convicted of that crime. The Privacy
Act allows us to disclose if the head of the law enforcement agency
makes a written request giving enough information to show that these
conditions are met, what information is needed, and why it is needed.
(c) Criminal activity involving the social security program or
another program with the same purposes. We disclose information when
necessary to investigate or prosecute fraud or other criminal activity
involving the social security program. We may also disclose information
for investigation or prosecution of criminal activity in other income-
maintenance or health-maintenance programs (e.g., other governmental
pension programs, unemployment compensation, general assistance,
Medicare or Medicaid) if the information concerns eligibility, benefit
amounts, or other matters of benefit status in a social security program
and is relevant to determining the same matters in the other program.
Sec. 401.160 Health or safety.
The Privacy Act allows us to disclose information in compelling
circumstances where an individual's health or safety is affected. For
example, if we learn that someone has been exposed to an excessive
amount of radiation, we may notify that person and appropriate health
officials. If we learn that someone has made a threat against someone
else, we may notify that other person and law enforcement officials.
When we make these disclosures, the Privacy Act requires us to send a
notice of the disclosure to the last known address of the person whose
record was disclosed.
Sec. 401.165 Statistical and research activities.
(a) General. Statistical and research activities often do not
require information in a format that identifies specific individuals.
Therefore, whenever possible, we release information for statistical or
research purposes only in the form of aggregates or individual data that
cannot be associated with a particular individual. The Privacy Act
allows us to release records if there are safeguards that the record
will be used solely as a statistical or research record and the
individual cannot be identified from any information in the record.
(b) Safeguards for disclosure with identifiers. The Privacy Act also
allows us to disclose data for statistical and research purposes in a
form allowing individual identification, pursuant to published routine
use, when the purpose is compatible with the purpose for which the
record was collected. We will disclose personally identifiable
information for statistical and research purposes if--
(1) We determine that the requestor needs the information in an
identifiable form for a statistical or research activity, will use the
information only for that purpose, and will protect individuals from
unreasonable and unwanted contacts;
(2) The activity is designed to increase knowledge about present or
alternative social security programs or
[[Page 19]]
other Federal or State income-maintenance or health-maintenance
programs, or consists of epidemiological or similar research; and
(3) The recipient will keep the information as a system of
statistical records, will follow appropriate safeguards, and agrees to
our on-site inspection of those safeguards so we can be sure the
information is used or redisclosed only for statistical or research
purposes. No redisclosure of the information may be made without SSA's
approval.
(c) Statistical record. A statistical record is a record in a system
of records which is maintained only for statistical and research
purposes, and which is not used to make any determination about an
individual. We maintain and use statistical records only for statistical
and research purposes. We may disclose a statistical record if the
conditions in paragraph (b) of this section are met.
(d) Compiling of records. Where a request for information for
statistical and research purposes would require us to compile records,
and doing that would be administratively burdensome to ongoing SSA
operations, we may decline to furnish the information.
Sec. 401.170 Congress.
(a) We disclose information to either House of Congress. We also
disclose information to any committee or subcommittee of either House,
or to any joint committee of Congress or subcommittee of that committee,
if the information is on a matter within the committee's or
subcommittee's jurisdiction.
(b) We disclose to any member of Congress the information needed to
respond to constituents' requests for information about themselves
(including requests from parents of minors, or legal guardians).
However, these disclosures are subject to the restrictions in
Secs. 401.35 through 401.60.
Sec. 401.175 General Accounting Office.
We disclose information to the General Accounting Office when that
agency needs the information to carry out its duties.
Sec. 401.180 Courts.
(a) General. The Privacy Act allows us to disclose information when
we receive an order from a court of competent jurisdiction. However,
much of our information is especially sensitive. Participation in social
security programs is mandatory, and so people cannot limit what
information is given to SSA. When information is used in a court
proceeding, it usually becomes part of a public record, and its
confidentiality cannot be protected. Therefore, we treat subpoenas or
other court orders for information under the rules in paragraph (b) of
this section.
(b) Subpoena. We generally disclose information in response to a
subpoena or other court order if--
(1) Another section of this part would specifically allow the
release; or
(2) The Commissioner of SSA is a party to the proceeding; or
(3) The information is necessary for due process in a criminal
proceeding. In other cases, we try to satisfy the needs of courts while
preserving the confidentiality of information.
(c) Other regulations on testimony and production of records in
legal proceedings. See Part 403 of this chapter for additional rules
covering disclosure of information and records governed by this part and
requested in connection with legal proceedings.
[62 FR 4143, Jan. 29, 1997, as amended at 66 FR 2809, Jan. 12, 2001]
Sec. 401.185 Other specific recipients.
In addition to disclosures we make under the routine use provision,
we also release information to--
(a) The Bureau of the Census for purposes of planning or carrying
out a census, survey, or related activity; and
(b) The National Archives of the United States if the record has
sufficient historical or other value to warrant its continued
preservation by the United States Government. We also disclose a record
to the Administrator of General Services for a determination of whether
the record has such a value.
Sec. 401.190 Deceased persons.
We do not consider the disclosure of information about a deceased
person to be a clearly unwarranted invasion of
[[Page 20]]
that person's privacy. However, in disclosing information about a
deceased person, we follow the principles in Sec. 401.115 to insure that
the privacy rights of a living person are not violated.
Sec. 401.195 Situations not specified in this part.
If no other provision in this part specifically allows SSA to
disclose information, the Commissioner or designee may disclose this
information if not prohibited by Federal law. For example, the
Commissioner or designee may disclose information necessary to respond
to life threatening situations.
Sec. 401.200 Blood donor locator service.
(a) General. We will enter into arrangements with State agencies
under which we will furnish to them at their request the last known
personal mailing addresses (residence or post office box) of blood
donors whose blood donations show that they are or may be infected with
the human immunodeficiency virus which causes acquired immune deficiency
syndrome. The State agency or other authorized person, as defined in
paragraph (b) of this section, will then inform the donors that they may
need medical care and treatment. The safeguards that must be used by
authorized persons as a condition to receiving address information from
the Blood Donor Locator Service are in paragraph (g) of this section,
and the requirements for a request for address information are in
paragraph (d) of this section.
(b) Definitions. State means the 50 States, the District of
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, the
Commonwealth of Northern Marianas, and the Trust Territory of the
Pacific Islands.
Authorized person means--
(1) Any agency of a State (or of a political subdivision of a State)
which has duties or authority under State law relating to the public
health or otherwise has the duty or authority under State law to
regulate blood donations; and
(2) Any entity engaged in the acceptance of blood donations which is
licensed or registered by the Food and Drug Administration in connection
with the acceptance of such blood donations, and which provides for--
(i) The confidentiality of any address information received pursuant
to the rules in this part and section 1141 of the Social Security Act
and related blood donor records;
(ii) Blood donor notification procedures for individuals with
respect to whom such information is requested and a finding has been
made that they are or may be infected with the human immunodeficiency
virus; and
(iii) Counseling services for such individuals who have been found
to have such virus. New counseling programs are not required, and an
entity may use existing counseling programs or referrals to provide
these services.
Related blood donor records means any record, list, or compilation
established in connection with a request for address information which
indicates, directly or indirectly, the identity of any individual with
respect to whom a request for address information has been made pursuant
to the rules in this part.
(c) Use of social security number for identification. A State or an
authorized person in the State may require a blood donor to furnish his
or her social security number when donating blood. The number may then
be used by an authorized person to identify and locate a donor whose
blood donation indicates that he or she is or may be infected with the
human immunodeficiency virus.
(d) Request for address of blood donor. An authorized person who has
been unable to locate a blood donor at the address he or she may have
given at the time of the blood donation may request assistance from the
State agency which has arranged with us to participate in the Blood
Donor Locator Service. The request to the Blood Donor Locator Service
must--
(1) Be in writing;
(2) Be from a participating State agency either on its own behalf as
an authorized person or on behalf of another authorized person;
(3) Indicate that the authorized person meets the confidentiality
safeguards of paragraph (g) of this section; and
(4) Include the donor's name and social security number, the
addresses at
[[Page 21]]
which the authorized person attempted without success to contact the
donor, the date of the blood donation if available, a statement that the
donor has tested positive for the human immunodeficiency virus according
to the latest Food and Drug Administration standards or that the history
of the subsequent use of the donated blood or blood products indicates
that the donor has or may have the human immunodeficiency virus, and the
name and address of the requesting blood donation facility.
(e) SSA response to request for address. After receiving a request
that meets the requirements of paragraph (d) of this section, we will
search our records for the donor's latest personal mailing address. If
we do not find a current address, we will request that the Internal
Revenue Service search its tax records and furnish us any personal
mailing address information from its files, as required under section
6103(m)(6) of the Internal Revenue Code. After completing these
searches, we will provide to the requesting State agency either the
latest mailing address available for the donor or a response stating
that we do not have this information. We will then destroy the records
or delete all identifying donor information related to the request and
maintain only the information that we will need to monitor the
compliance of authorized persons with the confidentiality safeguards
contained in paragraph (g) of this section.
(f) SSA refusal to furnish address. If we determine that an
authorized person has not met the requirements of paragraphs (d) and (g)
of this section, we will not furnish address information to the State
agency. In that case, we will notify the State agency of our
determination, explain the reasons for our determination, and explain
that the State agency may request administrative review of our
determination. The Commissioner of Social Security or a delegate of the
Commissioner will conduct this review. The review will be based on the
information of record and there will not be an opportunity for an oral
hearing. A request for administrative review, which may be submitted
only by a State agency, must be in writing. The State agency must send
its request for administrative review to the Commissioner of Social
Security, 6401 Security Boulevard, Baltimore, MD 21235, within 60 days
after receiving our notice refusing to give the donor's address. The
request for review must include supporting information or evidence that
the requirements of the rules in this part have been met. If we do not
furnish address information because an authorized person failed to
comply with the confidentiality safeguards of paragraph (g) of this
section, the State agency will have an opportunity to submit evidence
that the authorized person is now in compliance. If we then determine,
based on our review of the request for administrative review and the
supporting evidence, that the authorized person meets the requirements
of the rules in this part, we will respond to the address request as
provided in paragraph (e) of this section. If we determine on
administrative review that the requirements have not been met, we will
notify the State agency in writing of our decision. We will make our
determination within 30 days after receiving the request for
administrative review, unless we notify the State agency within this 30-
day time period that we will need additional time. Our determination on
the request for administrative review will give the findings of fact,
the reasons for the decision, and what actions the State agency should
take to ensure that it or the blood donation facility is in compliance
with the rules in this part.
(g) Safeguards to ensure confidentiality of blood donor records. We
will require assurance that authorized persons have established and
continue to maintain adequate safeguards to protect the confidentiality
of both address information received from the Blood Donor Locator
Service and related blood donor records. The authorized person must, to
the satisfaction of the Secretary--
(1) Establish and maintain a system for standardizing records which
includes the reasons for requesting the addresses of blood donors, dates
of the requests, and any disclosures of address information;
(2) Store blood donors' addresses received from the Blood Donor
Locator Service and all related blood donor
[[Page 22]]
records in a secure area or place that is physically safe from access by
persons other than those whose duties and responsibilities require
access;
(3) Restrict access to these records to authorized employees and
officials who need them to perform their official duties related to
notifying blood donors who are or may be infected with the human
immunodeficiency virus that they may need medical care and treatment;
(4) Advise all personnel who will have access to the records of the
confidential nature of the information, the safeguards required to
protect the information, and the civil and criminal sanctions for
unauthorized use or disclosure of the information;
(5) Destroy the address information received from the Blood Donor
Locator Service, as well as any records established in connection with
the request which indicate directly or indirectly the identity of the
individual, after notifying or attempting to notify the donor at the
address obtained from the Blood Donor Locator Service; and
(6) Upon request, report to us the procedures established and
utilized to ensure the confidentiality of address information and
related blood donor records. We reserve the right to make onsite
inspections to ensure that these procedures are adequate and are being
followed and to request such information as we may need to ensure that
the safeguards required in this section are being met.
(h) Unauthorized disclosure. Any official or employee of the Federal
Government, a State, or a blood donation facility who discloses blood
donor information, except as provided for in this section or under a
provision of law, will be subject to the same criminal penalty as
provided in section 7213(a) of the Internal Revenue Code of 1986 for the
unauthorized disclosure of tax information.
Appendix A to Part 401--Employee Standards of Conduct
(a) General. All SSA employees are required to be aware of their
responsibilities under the Privacy Act of 1974, 5 U.S.C. 552a.
Regulations implementing the Privacy Act are set forth in this part.
Instruction on the requirements of the Act and regulation shall be
provided to all new employees of SSA. In addition, supervisors shall be
responsible for assuring that employees who are working with systems of
records or who undertake new duties which require the use of systems of
records are informed of their responsibilities. Supervisors shall also
be responsible for assuring that all employees who work with such
systems of records are periodically reminded of the requirements of the
Privacy Act and are advised of any new provisions or interpretations of
the Act.
(b) Penalties. (1) All employees must guard against improper
disclosure of records which are governed by the Privacy Act. Because of
the serious consequences of improper invasions of personal privacy,
employees may be subject to disciplinary action and criminal prosecution
for knowing and willful violations of the Privacy Act and regulation. In
addition, employees may also be subject to disciplinary action for
unknowing or unwillful violations, where the employee had notice of the
provisions of the Privacy Act and regulations and failed to inform
himself or herself sufficiently or to conduct himself or herself in
accordance with the requirements to avoid violations.
(2) SSA may be subjected to civil liability for the following
actions undertaken by its employees:
(a) Making a determination under the Privacy Act and Secs. 401.65
and 401.70 not to amend an individual's record in accordance with his or
her request, or failing to make such review in conformity with those
provisions;
(b) Refusing to comply with an individual's request for notification
of or access to a record pertaining to him or her;
(c) Failing to maintain any record pertaining to any individual with
such accuracy, relevance, timeliness, and completeness as is necessary
to assure fairness in any determination relating to the qualifications,
character, rights, or opportunities of, or benefits to the individual
that may be made on the basis of such a record, and consequently makes a
determination which is adverse to the individual; or
(d) Failing to comply with any other provision of the Act or any
rule promulgated thereunder, in such a way as to have an adverse effect
on an individual.
(3) An employee may be personally subject to criminal liability as
set forth below and in 5 U.S.C. 552a (i):
(a) Willful disclosure. Any officer or employee of SSA, who by
virtue of his employment or official position, has possession of, or
access to, agency records which contain individually identifiable
information the disclosure of which is prohibited by the Privacy Act or
by rules or regulations established thereunder, and who, knowing that
disclosure of the specific material is so prohibited, willfully
discloses the material in any manner to any person or agency not
entitled to
[[Page 23]]
receive it, shall be guilty of a misdemeanor and may be fined not more
than $5,000.
(b) Notice requirements. Any officer or employee of SSA who
willfully maintains a system of records without meeting the notice
requirements [of the Privacy Act] shall be guilty of a misdemeanor and
may be fined not more than $5,000.
(c) Rules governing employees not working with systems of records.
Employees whose duties do not involve working with systems of records
will not generally disclose to any one, without specific authorization
from their supervisors, records pertaining to employees or other
individuals which by reason of their official duties are available to
them. Notwithstanding the above, the following records concerning
Federal employees are a matter of public record and no further
authorization is necessary for disclosure:
(1) Name and title of individual.
(2) Grade classification or equivalent and annual rate of salary.
(3) Position description.
(4) Location of duty station, including room number and telephone
number.
In addition, employees shall disclose records which are listed in
SSA's Freedom of Information Regulation as being available to the
public. Requests for other records will be referred to the responsible
SSA Freedom of Information Officer. This does not preclude employees
from discussing matters which are known to them personally, and without
resort to a record, to official investigators of Federal agencies for
official purposes such as suitability checks, Equal Employment
Opportunity investigations, adverse action proceedings, grievance
proceedings, etc.
(d) Rules governing employees whose duties require use or reference
to systems of records. Employees whose official duties require that they
refer to, maintain, service, or otherwise deal with systems of records
(hereinafter referred to as ``Systems Employees'') are governed by the
general provisions. In addition, extra precautions are required and
systems employees are held to higher standards of conduct.
(1) Systems Employees shall:
(a) Be informed with respect to their responsibilities under the
Privacy Act;
(b) Be alert to possible misuses of the system and report to their
supervisors any potential or actual use of the system which they believe
is not in compliance with the Privacy Act and regulation;
(c) Disclose records within SSA only to an employee who has a
legitimate need to know the record in the course of his or her official
duties;
(d) Maintain records as accurately as practicable.
(e) Consult with a supervisor prior to taking any action where they
are in doubt whether such action is in conformance with the Act and
regulation.
(2) Systems employees shall not:
(a) Disclose in any form records from a system of records except (1)
with the consent or at the request of the subject individual; or (2)
where its disclosure is permitted under Sec. 401.110.
(b) Permit unauthorized individuals to be present in controlled
areas. Any unauthorized individuals observed in controlled areas shall
be reported to a supervisor or to the guard force.
(c) Knowingly or willfully take action which might subject SSA to
civil liability.
(d) Make any arrangements for the design, development, or operation
of any system of records without making reasonable effort to provide
that the system can be maintained in accordance with the Act and
regulation.
(e) Contracting officers. In addition to any applicable provisions
set forth above, those employees whose official duties involve entering
into contracts on behalf of SSA shall also be governed by the following
provisions:
(1) Contracts for design, or development of systems and equipment.
The contracting officer shall not enter into any contract for the design
or development of a system of records, or for equipment to store,
service or maintain a system of records unless the contracting officer
has made reasonable effort to ensure that the product to be purchased is
capable of being used without violation of the Privacy Act or the
regulations in this part. He shall give special attention to provision
of physical safeguards.
(2) Contracts for the operation of systems of records. The
Contracting Officer, in conjunction with other officials whom he feels
appropriate, shall review all proposed contracts providing for the
operation of systems of records prior to execution of the contracts to
determine whether operation of the system of records is for the purpose
of accomplishing a Department function. If it is determined that the
operation of the system is to accomplish an SSA function, the
contracting officer shall be responsible for including in the contract
appropriate provisions to apply the provisions of the Privacy Act and
regulation to the system, including prohibitions against improper
release by the contractor, his employees, agents, or subcontractors.
(3) Other service contracts. Contracting officers entering into
general service contracts shall be responsible for determining the
appropriateness of including provisions in the contract to prevent
potential misuse (inadvertent or otherwise) by employees, agents, or
subcontractors of the contractor.
(f) Rules governing SSA officials responsible for managing systems
of records. In addition to the requirements for Systems Employees, SSA
officials responsible for managing systems of records as described in
Sec. 401.40(c) (system managers) shall:
(1) Respond to all requests for notification of or access,
disclosure, or amendment of
[[Page 24]]
records in a timely fashion in accordance with the Privacy Act and
regulation;
(2) Make any amendment of records accurately and in a timely
fashion;
(3) Inform all persons whom the accounting records show have
received copies of the record prior to the amendments of the correction;
and
(4) Associate any statement of disagreement with the disputed
record, and
(a) Transmit a copy of the statement to all persons whom the
accounting records show have received a copy of the disputed record, and
(b) Transmit that statement with any future disclosure.
PART 402--AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC--Table of Contents
Sec.
402.5 Scope and purpose.
402.10 Policy.
402.15 Relationship between the FOIA and the Privacy Act of 1974.
402.20 Requests not handled under the FOIA.
402.25 Referral of requests outside of SSA.
402.30 Definitions.
402.35 Publication.
402.40 Publications for sale.
402.45 Availability of records.
402.50 Availability of administrative staff manuals.
402.55 Materials available at district offices and branch offices.
402.60 Materials in field offices of the Office of Hearings and
Appeals.
402.65 Health care information.
402.70 Reasons for withholding some records.
402.75 Exemption one for withholding records: National defense and
foreign policy.
402.80 Exemption two for withholding records: Internal personnel rules
and practices.
402.85 Exemption three for withholding records: Records exempted by
other statutes.
402.90 Exemption four for withholding records: Trade secrets and
confidential commercial or financial information.
402.95 Exemption five for withholding records: Internal memoranda.
402.100 Exemption six: Clearly unwarranted invasion of personal
privacy.
402.105 Exemption seven for withholding records: Law enforcement.
402.110 Exemptions eight and nine for withholding records: Records on
financial institutions; records on wells.
402.125 Who may release a record.
402.130 How to request a record.
402.135 Where to send a request.
402.140 How a request for a record is processed.
402.145 Responding to your request.
402.150 Release of records.
402.155 Fees to be charged--categories of requests.
402.160 Fees to be charged--general provisions.
402.165 Fee schedule.
402.170 Fees for providing records and related services for program
purposes pursuant to section 1106 of the Social Security Act.
402.175 Fees for providing information and related services for non-
program purposes.
402.180 Procedure on assessing and collecting fees for providing
records.
402.185 Waiver or reduction of fees in the public interest.
402.190 Officials who may deny a request for records under FOIA.
402.195 How a request is denied.
402.200 How to appeal a decision denying all or part of a request.
402.205 U.S. District Court action.
Authority: Secs. 205, 702(a)(5), and 1106 of the Social Security
Act; (42 U.S.C. 405, 902(a)(5), and 1306); 5 U.S.C. 552 and 552a; 8
U.S.C. 1360; 18 U.S.C. 1905; 26 U.S.C. 6103; 30 U.S.C. 923b; 31 U.S.C.
9701; E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 235.
Source: 62 FR 4154, Jan. 29, 1997, unless otherwise noted.
Sec. 402.5 Scope and purpose.
The rules in this part relate to the availability to the public,
pursuant to the Freedom of Information Act (FOIA) 5 U.S.C. 552, of
records of the Social Security Administration (SSA). They describe how
to make a FOIA request; who can release records and who can decide not
to release; how much time it should take to make a determination
regarding release; what fees may be charged; what records are available
for public inspection; why some records are not released; and your right
to appeal and then go to court if we refuse to release records. The
rules in this part do not revoke, modify, or supersede the regulations
of SSA relating to disclosure of information in part 401 of this
chapter.
Sec. 402.10 Policy.
As a general policy, SSA follows a balanced approach in
administering FOIA. We not only recognize the right of public access to
information in the possession of SSA, but also protect the
[[Page 25]]
integrity of internal processes. In addition, we recognize the
legitimate interests of organizations or persons who have submitted
records to SSA or who would otherwise be affected by release of records.
For example, we have no discretion to release certain records, such as
trade secrets and confidential commercial information, prohibited from
release by law. This policy calls for the fullest responsible disclosure
consistent with those requirements of administrative necessity and
confidentiality which are recognized in the FOIA.
Sec. 402.15 Relationship between the FOIA and the Privacy Act of 1974.
(a) Coverage. The FOIA and the rules in this part apply to all SSA
records. The Privacy Act, 5 U.S.C. 552a, applies to records that are
about individuals, but only if the records are in a system of records.
``Individuals'' and ``system of records'' are defined in the Privacy Act
and in 20 CFR 401.25.
(b) Requesting your own records. If you are an individual and
request records, then to the extent you are requesting your own records
in a system of records, we will handle your request under the Privacy
Act. If there is any record that we need not release to you under those
provisions, we will also consider your request under the FOIA and this
rule, and we will release the record to you if the FOIA requires it.
(c) Requesting another individual's record. Whether or not you are
an individual, if you request records that are about an individual
(other than yourself) and that are in a system of records, we will
handle your request under the FOIA and the rules in this part. However,
if our disclosure in response to your request would be permitted by the
Privacy Act's disclosure provision, (5 U.S.C. 552a(b)), for reasons
other than the requirements of the FOIA, and if we decide to make the
disclosure, then we will not handle your request under the FOIA and the
rules in this part. For example, when we make routine use disclosures
pursuant to requests, we do not handle them under the FOIA and the rules
in this part. (``Routine use'' is defined in the Privacy Act and in 20
CFR 401.25.) If we handle your request under the FOIA and the rules in
this part and the FOIA does not require releasing the record to you,
then the Privacy Act may prohibit the release and remove our discretion
to release.
Sec. 402.20 Requests not handled under the FOIA.
(a) We will not handle your request under the FOIA and the
regulations in this part to the extent it asks for records that are
currently available, either from SSA or from another part of the Federal
Government, under a separate statute that provides specific activity for
charging fees for those records. For example, we will not handle your
request under the FOIA and the regulations in this part to the extent it
asks for detailed earnings statements under the Social Security program.
(b) We will not handle your request under the FOIA and the
regulations in this part if you are seeking a record that is distributed
by SSA as part of its regular program activity, for example, public
information leaflets distributed by SSA.
Sec. 402.25 Referral of requests outside of SSA.
If you request records that were created by, or provided to us by,
another Federal agency, and if that agency asserts control over the
records, we may refer the records and your request to that agency. We
may likewise refer requests for classified records to the agency that
classified them. In these cases, the other agency will process and
respond to your request, to the extent it concerns those records, under
that agency's regulation, and you need not make a separate request to
that agency. We will notify you when we refer your request to another
agency.
Sec. 402.30 Definitions.
As used in this part,
Agency means any executive department, military department,
government corporation, government controlled corporation, or other
establishment in the executive branch of the Federal Government, or any
independent regulatory agency. A private organization is not an agency
even if it is performing work under contract
[[Page 26]]
with the Government or is receiving Federal financial assistance.
Grantee and contractor records are not subject to the FOIA unless they
are in the possession or under the control of SSA or its agents. Solely
for the purpose of disclosure under the FOIA, we consider records of
individual beneficiaries located in the State Disability Determination
Services (DDS) to be agency records.
Commercial use means, when referring to a request, that the request
is from or on behalf of one who seeks information for a use or purpose
that furthers the commercial, trade, or profit interests of the
requester or of a person on whose behalf the request is made. Whether a
request is for a commercial use depends on the purpose of the request
and the use to which the records will be put. The identity of the
requester (individual, non-profit corporation, for-profit corporation)
and the nature of the records, while in some cases indicative of that
purpose or use, are not necessarily determinative. When a request is
from a representative of the news media, a purpose or use supporting the
requester's news dissemination function is not a commercial use.
Duplication means the process of making a copy of a record and
sending it to the requester, to the extent necessary to respond to the
request. Such copies include paper copy, microfilm, audio-visual
materials, and magnetic tapes, cards, and discs.
Educational institution means a preschool, elementary or secondary
school, institution of undergraduate or graduate higher education, or
institution of professional or vocational education, which operates a
program of scholarly research.
Freedom of Information Act or FOIA means 5 U.S.C. 552.
Freedom of Information Officer means an SSA official who has been
delegated the authority to authorize disclosure of or withhold records
and assess, waive, or reduce fees in response to FOIA requests.
Non-commercial scientific institution means an institution that is
not operated substantially for purposes of furthering its own or someone
else's business, trade, or profit interests, and that is operated for
purposes of conducting scientific research whose results are not
intended to promote any particular product or industry.
Records means any information maintained by an agency, regardless of
forms or characteristics, that is made or received in connection with
official business. This includes handwritten, typed, or printed
documents (such as memoranda, books, brochures, studies, writings,
drafts, letters, transcripts, and minutes) and material in other forms,
such as punchcards; magnetic tapes; cards; computer discs or other
electronic formats; paper tapes; audio or video recordings; maps;
photographs; slides; microfilm; and motion pictures. It does not include
objects or articles such as exhibits, models, equipment, and duplication
machines, audiovisual processing materials, or computer software. It
does not include personal records of an employee, or books, magazines,
pamphlets, or other reference material in formally organized and
officially designated SSA libraries, where such materials are available
under the rules of the particular library.
Representative of the news media means a person actively gathering
information for an entity organized and operated to publish or broadcast
news to the public. News media entities include television and radio
broadcasters, publishers of periodicals who distribute their products to
the general public or who make their products available for purchase or
subscription by the general public, and entities that may disseminate
news through other media (e.g., electronic dissemination of text). We
will treat freelance journalists as representatives of a news media
entity if they can show a likelihood of publication through such an
entity. A publication contract is such a basis, and the requester's past
publication record may show such a basis.
Request means asking for records, whether or not you refer
specifically to the FOIA. Requests from Federal agencies and court
orders for documents are not included within this definition.
Review means, when used in connection with processing records for a
commercial use request, examining the records to determine what
portions, if any, may be withheld, and any other
[[Page 27]]
processing that is necessary to prepare the records for release. It
includes only the examining and processing that are done the first time
we analyze whether a specific exemption applies to a particular record
or portion of a record. It does not include examination done in the
appeal stage with respect to an exemption that was applied at the
initial request stage. However, if we initially withhold a record under
one exemption, and on appeal we determine that that exemption does not
apply, then examining the record in the appeal stage for the purpose of
determining whether a different exemption applies is included in review.
It does not include the process of researching or resolving general
legal or policy issues regarding exemptions.
Search means looking for records or portions of records responsive
to a request. It includes reading and interpreting a request, and also
page-by-page and line-by-line examination to identify responsive
portions of a document. However, it does not include line-by-line
examination where merely duplicating the entire page would be a less
expensive and quicker way to comply with the request.
[62 FR 4154, Jan. 29, 1997, as amended at 63 FR 35132, June 29, 1998, 66
FR 2809, Jan. 12, 2001]
Sec. 402.35 Publication.
(a) Methods of publication. Materials we are required to publish
pursuant to the provisions of 5 U.S.C. 552 (a)(1) and (a)(2), we publish
in one of the following ways:
(1) By publication in the Federal Register of Social Security
Administration regulations, and by their subsequent inclusion in the
Code of Federal Regulations;
(2) By publication in the Federal Register of appropriate general
notices;
(3) By other forms of publication, when incorporated by reference in
the Federal Register with the approval of the Director of the Federal
Register; and
(4) By publication in the ``Social Security Rulings'' of indexes of
precedential social security orders and opinions issued in the
adjudication of claims, statements of policy and interpretations which
have been adopted but have not been published in the Federal Register.
The ``Social Security Rulings'' may be purchased through the Government
Printing Office (See Sec. 402.40).
(b) Publication of rulings. Although not required pursuant to 5
U.S.C. 552 (a)(1) and (a)(2), we publish the following rulings in the
Federal Register as well as by other forms of publication:
(1) We publish Social Security Rulings in the Federal Register under
the authority of the Commissioner of Social Security. They are binding
on all components of the Social Security Administration. These rulings
represent precedent final opinions and orders and statements of policy
and interpretations that we have adopted.
(2) We publish Social Security Acquiescence Rulings in the Federal
Register under the authority of the Commissioner of Social Security.
They are binding on all components of the Social Security
Administration, except with respect to claims subject to the
relitigation procedures established in 20 CFR 404.984, 410.610, and
416.1484. For a description of Social Security Acquiescence Rulings, see
20 CFR 404.984(b), 410.610c(b), and 416.1484(b) of this title.
(c) Availability for inspection. To the extent practicable and to
further assist the public, we make available for inspection at the
address specified in Sec. 402.135 those materials which are published in
the Federal Register pursuant to 5 U.S.C. 552(a)(1).
(d) Availability by Telecommunications. To the extent practicable,
we will make available by means of computer telecommunications the
indices and other records that are available for inspection.
[62 FR 4154, Jan. 29, 1997, as amended at 63 FR 35132, June 29, 1998; 65
FR 16813, Mar. 30, 2000]
Sec. 402.40 Publications for sale.
The following publications containing information pertaining to the
program, organization, functions, and procedures of the Social Security
Administration may be purchased from the Superintendent of Documents,
Government Printing Office, Washington, DC 20402:
[[Page 28]]
(a) Title 20, parts 400-499 of the Code of Federal Regulations.
(b) Federal Register issues.
(c) Compilation of the Social Security Laws.
(d) Social Security Rulings.
(e) Social Security Handbook. The information in the Handbook is not
of precedent or interpretative force.
(f) Social Security Bulletin.
(g) Social Security Acquiescence Rulings.
(h) SSA Publications on CD-ROM.
[62 FR 4154, Jan. 29, 1997, as amended at 63 FR 35132, June 29, 1998]
Sec. 402.45 Availability of records.
(a) What records are available. 5 U.S.C. 552, also known as the
FOIA, permits any person to see, and get a copy of, any Federal agency's
records unless the material is exempt from mandatory disclosure as
described in Sec. 402.70 of this part.
(b) FOIA. Under the FOIA, we are also required to make available to
the public the instructional manuals issued to our employees, general
statements of policy, and other materials which are used in processing
claims and which are not published in the Federal Register, and an index
of these manuals and materials.
(c) Record citation as precedent. We will not use or cite any record
described in paragraph (b) of this section as a precedent for an action
against a person unless we have indexed the record and published it or
made it available, or unless the person has timely notice of the record.
(d) Electronic Reading Room. We will prepare an index of records
which have become or are likely to become the subject of subsequent
requests. The index, and, to the extent practicable, the records will be
made available on the Internet or by other computer telecommunications
means.
[62 FR 4154, Jan. 29, 1997, as amended at 63 FR 35132, June 29, 1998]
Sec. 402.50 Availability of administrative staff manuals.
All administrative staff manuals of the Social Security
Administration and instructions to staff personnel which contain
policies, procedures, or interpretations that affect the public are
available for inspection and copying. A complete listing of such
materials is published in the Index of Administrative Staff Manuals and
Instructions. These manuals are generally not printed in a sufficient
quantity to permit sale or other general distribution to the public.
Selected material is maintained at district offices and field offices
and may be inspected there. See Secs. 402.55 and 402.60 for a listing of
this material.
Sec. 402.55 Materials available at district offices and branch offices.
(a) Materials available for inspection. The following are available
or will be made available for inspection at the district offices and
branch offices:
(1) Compilation of the Social Security Laws.
(2) Social Security Administration regulations under the retirement,
survivors, disability, and supplemental security income programs, i.e.,
20 CFR parts 401, 402, 404, 416, and 422; and the Social Security
Administration's regulations under part B of title IV (Black Lung
Benefits) of the Federal Coal Mine Health and Safety Act of 1969, 20 CFR
part 410.
(3) Social Security Rulings.
(4) Social Security Handbook.
(5) Social Security Acquiescence Rulings.
(b) Materials available for inspection and copying. The following
materials are available or will be made available for inspection and
copying at the district offices and branch offices (fees may be
applicable per Secs. 402.155 through 402.185):
(1) SSA Program Operations Manual System.
(2) SSA Organization Manual.
(3) Handbook for State Social Security Administrators.
(4) Indexes to the materials listed in paragraph (a) of this section
and in this paragraph (b) and an index to the Hearings, Appeals and
Litigation Law (HALLEX) manual.
(5) Index of Administrative Staff Manuals and Instructions.
Sec. 402.60 Materials in field offices of the Office of Hearings and Appeals.
(a) Materials available for inspection. The following materials are
available
[[Page 29]]
for inspection in the field offices of the Office of Hearings and
Appeals:
(1) Regulations of the Social Security Administration (see
Sec. 402.55(a)(2)).
(2) Title 5, United States Code.
(3) Compilation of the Social Security Laws.
(4) Social Security Rulings.
(5) Social Security Handbook.
(6) Social Security Acquiescence Rulings.
(b) The Hearings, Appeals and Litigation Law (HALLEX) manual is
available for inspection and copying in the field offices of the Office
of Hearings and Appeals (fees may be applicable per Secs. 402.155
through 402.185).
Sec. 402.65 Health care information.
We have some information about health care programs under titles
XVIII and XIX (Medicare and Medicaid) of the Social Security Act. We
follow the rules in 42 CFR part 401 in determining whether to provide
any portion of it to a requester.
Sec. 402.70 Reasons for withholding some records.
Section 552(b) of the Freedom of Information Act contains nine
exemptions to the mandatory disclosure of records. We describe these
exemptions in Secs. 402.75 through 402.110 of this part and explain how
we apply them to disclosure determinations. (In some cases more than one
exemption may apply to the same document.) Information obtained by the
agency from any individual or organization, furnished in reliance on a
provision for confidentiality authorized by applicable statute or
regulation, will not be disclosed, to the extent it can be withheld
under one of these exemptions. This section does not itself authorize
the giving of any pledge of confidentiality by any officer or employee
of the agency.
Sec. 402.75 Exemption one for withholding records: National defense and foreign policy.
We are not required to release records that, as provided by FOIA,
are ``(a) specifically authorized under criteria established by an
Executive Order to be kept secret in the interest of national defense or
foreign policy and (b) are in fact properly classified pursuant to such
Executive Order.'' Executive Order No. 12958 (1995) (3 CFR, 1987 Comp.,
p. 235) provides for such classification. When the release of certain
records may adversely affect U.S. relations with foreign countries, we
usually consult with officials of those countries or officials of the
Department of State. Also, we may on occasion have in our possession
records classified by some other agency. We may refer your request for
such records to the agency that classified them and notify you that we
have done so.
Sec. 402.80 Exemption two for withholding records: Internal personnel rules and practices.
We are not required to release records that are ``related solely to
the internal personnel rules and practices of an agency.'' Under this
exemption, we may withhold routine internal agency practices and
procedures. For example, we may withhold guard schedules and rules
governing parking facilities or lunch periods. Also under this
exemption, we may withhold internal records whose release would help
some persons circumvent the law or agency regulations. For example, we
ordinarily do not disclose manuals that instruct our investigators or
auditors how to investigate possible violations of law, to the extent
that this release would help some persons circumvent the law.
Sec. 402.85 Exemption three for withholding records: Records exempted by other statutes.
We are not required to release records if another statute
specifically allows or requires us to withhold them. We may use another
statute to justify withholding only if it absolutely prohibits
disclosure or if it sets forth criteria to guide our decision on
releasing or identifies particular types of material to be withheld. We
often use this exemption to withhold information regarding a worker's
earnings which is tax return information under section 6103 of the
Internal Revenue Code.
[[Page 30]]
Sec. 402.90 Exemption four for withholding records: Trade secrets and confidential commercial or financial information.
We will withhold trade secrets and commercial or financial
information that is obtained from a person and is privileged or
confidential.
(a) Trade secrets. A trade secret is a secret, commercially valuable
plan, formula, process, or device that is used for the making,
preparing, compounding, or processing of trade commodities and that can
be said to be the end product of either innovation or substantial
effort. There must be a direct relationship between the trade secret and
the productive process.
(b) Commercial or financial information. We will not disclose
records whose information is ``commercial or financial,'' is obtained
from a person, and is ``privileged or confidential.''
(1) Information is ``commercial or financial'' if it relates to
businesses, commerce, trade, employment, profits, or finances (including
personal finances). We interpret this category broadly.
(2) Information is ``obtained from a person'' if SSA or another
agency has obtained it from someone outside the Federal Government or
from someone within the Government who has a commercial or financial
interest in the information. ``Person'' includes an individual,
partnership, corporation, association, State or foreign government, or
other organization. Information is not ``obtained from a person'' if it
is generated by SSA or another Federal agency. However, information is
``obtained from a person'' if it is provided by someone, including but
not limited to an agency employee, who retains a commercial or financial
interest in the information.
(3) Information is ``privileged'' if it would ordinarily be
protected from disclosure in civil discovery by a recognized evidentiary
privilege, such as the attorney-client privilege or the work product
privilege. Information may be privileged for this purpose under a
privilege belonging to a person outside the government, unless the
providing of the information to the government rendered the information
no longer protectable in civil discovery.
(4) Information is ``confidential'' if it meets one of the following
tests:
(i) Disclosure may impair the government's ability to obtain
necessary information in the future;
(ii) Disclosure would substantially harm the competitive position of
the person who submitted the information;
(iii) Disclosure would impair other government interests, such as
program effectiveness and compliance; or
(iv) Disclosure would impair other private interests, such as an
interest in controlling availability of intrinsically valuable records,
which are sold in the market by their owner.
(c) Analysis under tests in this section. The following questions
may be relevant in analyzing whether a record meets one or more of the
above tests:
(1) Is the information of a type customarily held in strict
confidence and not disclosed to the public by the person to whom it
belongs?
(2) What is the general custom or usage with respect to such
information in the relevant occupation or business?
(3) How many, and what types of, individuals have access to the
information?
(4) What kind and degree of financial injury can be expected if the
information is disclosed?
(d) Designation of certain confidential information. A person who
submits records to the government may designate part or all of the
information in such records as exempt from disclosure under Exemption 4
of the FOIA. The person may make this designation either at the time the
records are submitted to the government or within a reasonable time
thereafter. The designation must be in writing. Where a legend is
required by a request for proposals or request for quotations, pursuant
to 48 CFR 352.215-12, then that legend is necessary for this purpose.
Any such designation will expire ten years after the records were
submitted to the government.
(e) Predisclosure notification. The procedures in this paragraph
apply to records on which the submitter has designated information as
provided in paragraph (d) of this section. They also apply to records
that were submitted
[[Page 31]]
to the government where we have substantial reason to believe that
information in the records could reasonably be considered exempt under
Exemption 4. Certain exceptions to these procedures are stated in
paragraph (f) of this section.
(1) When we receive a request for such records, and we determine
that we may be required to disclose them, we will make reasonable
efforts to notify the submitter about these facts. The notice will
include a copy of the request, and it will inform the submitter about
the procedures and time limits for submission and consideration of
objections to disclosure. If we must notify a large number of
submitters, we may do this by posting or publishing a notice in a place
where the submitters are reasonably likely to become aware of it.
(2) The submitter has five working days from receipt of the notice
to object to disclosure of any part of the records and to state all
bases for its objections.
(3) We will give consideration to all bases that have been timely
stated by the submitter. If we decide to disclose the records, we will
notify the submitter in writing. This notice will briefly explain why we
did not sustain its objections. We will include with the notice a copy
of the records about which the submitter objected, as we propose to
disclose them. The notice will state that we intend to disclose the
records five working days after the submitter receives the notice unless
we are ordered by a United States District Court not to release them.
(4) When a requester files suit under the FOIA to obtain records
covered by this paragraph, we will promptly notify the submitter.
(5) Whenever we send a notice to a submitter under paragraph (e)(1)
of this section, we will notify the requester that we are giving the
submitter a notice and an opportunity to object. Whenever we send a
notice to a submitter under paragraph (e)(3) of this section, we will
notify the requester of this fact.
(f) Exceptions to predisclosure notification. The notice
requirements in paragraph (e) of this section do not apply in the
following situations:
(1) We decided not to disclose the records;
(2) The information has previously been published or made generally
available;
(3) Disclosure is required by a regulation, issued after notice and
opportunity for public comment, that specifies narrow categories of
records that are to be disclosed under the FOIA, but in this case a
submitter may still designate records as described in paragraph (d) of
this section, and in exceptional cases, we may, at our discretion,
follow the notice procedures in paragraph (e) of this section; or
(4) The designation appears to be obviously frivolous, but in this
case we will still give the submitter the written notice required by
paragraph (e)(3) of this section (although this notice need not explain
our decision or include a copy of the records), and we will notify the
requester as described in paragraph (e)(5) of this section.
Sec. 402.95 Exemption five for withholding records: Internal memoranda.
This exemption covers internal government communications and notes
that fall within a generally recognized evidentiary privilege. Internal
government communications include an agency's communications with an
outside consultant or other outside person, with a court, or with
Congress, when those communications are for a purpose similar to the
purpose of privileged intra-agency communications. Some of the most-
commonly applicable privileges are described in the following
paragraphs:
(a) Deliberative process privilege. This privilege protects
predecisional deliberative communications. A communication is protected
under this privilege if it was made before a final decision was reached
on some question of policy and if it expressed recommendations or
opinions on that question. The purpose of the privilege is to prevent
injury to the quality of the agency decisionmaking process by
encouraging open and frank internal policy discussions, by avoiding
premature disclosure of policies not yet adopted, and by avoiding the
public confusion that might result from disclosing reasons
[[Page 32]]
that were not in fact the ultimate grounds for an agency's decision.
Purely factual material in a deliberative document is within this
privilege only if it is inextricably intertwined with the deliberative
portions so that it cannot reasonably be segregated, if it would reveal
the nature of the deliberative portions, or if its disclosure would in
some other way make possible an intrusion into the decisionmaking
process. We will release purely factual material in a deliberative
document unless that material is otherwise exempt. The privilege
continues to protect predecisional documents even after a decision is
made.
(b) Attorney work product privilege. This privilege protects
documents prepared by or for an agency, or by or for its representative
(typically, our attorneys) in anticipation of litigation or for trial.
It includes documents prepared for purposes of administrative
adjudications as well as court litigation. It includes documents
prepared by program offices as well as by attorneys. It includes factual
material in such documents as well as material revealing opinions and
tactics. Finally, the privilege continues to protect the documents even
after the litigation is closed.
(c) Attorney-client communication privilege. This privilege protects
confidential communications between a lawyer and an employee or agent of
the Government where there is an attorney-client relationship between
them (typically, where the lawyer is acting as attorney for the agency
and the employee is communicating on behalf of the agency) and where the
employee has communicated information to the attorney in confidence in
order to obtain legal advice or assistance.
Sec. 402.100 Exemption six: Clearly unwarranted invasion of personal privacy.
(a) Documents affected. We may withhold records about individuals if
disclosure would constitute a clearly unwarranted invasion of their
personal privacy.
(b) Balancing test. In deciding whether to release records to you
that contain personal or private information about someone else, we
weigh the foreseeable harm of invading a person's privacy against the
public interest in disclosure. In determining whether disclosure would
be in the public interest, we will consider whether disclosure of the
requested information would shed light on how a Government agency
performs its statutory duties. However, in our evaluation of requests
for records we attempt to guard against the release of information that
might involve a violation of personal privacy because of a requester
being able to ``read between the lines'' or piece together items that
would constitute information that normally would be exempt from
mandatory disclosure under Exemption Six.
(c) Examples. Some of the information that we frequently withhold
under Exemption Six is: Home addresses, ages, and minority group status
of our employees or former employees; social security numbers; medical
information about individuals who have filed a claim for disability
benefits; names and addresses of individual beneficiaries of our
programs, or benefits such individuals receive; earnings records, claim
files, and other personal information SSA maintains.
[62 FR 4154, Jan. 29, 1997, as amended at 63 FR 35132, June 29, 1998]
Sec. 402.105 Exemption seven for withholding records: Law enforcement.
We are not required to disclose information or records that the
government has compiled for law enforcement purposes. The records may
apply to actual or potential violations of either criminal or civil laws
or regulations. We can withhold these records only to the extent that
releasing them would cause harm in at least one of the following
situations:
(a) Enforcement proceedings. We may withhold information whose
release could reasonably be expected to interfere with prospective or
ongoing law enforcement proceedings. Investigations of fraud and
mismanagement, employee misconduct, and civil rights violations may fall
into this category. In certain cases--such as when a fraud investigation
is likely--we may refuse to confirm or deny the existence of records
that relate to the violations in
[[Page 33]]
order not to disclose that an investigation is in progress, or may be
conducted.
(b) Fair trial or impartial adjudication. We may withhold records
whose release would deprive a person of a fair trial or an impartial
adjudication because of prejudicial publicity.
(c) Personal privacy. We are careful not to disclose information
that could reasonably be expected to constitute an unwarranted invasion
of personal privacy. When a name surfaces in an investigation, that
person is likely to be vulnerable to innuendo, rumor, harassment, and
retaliation.
(d) Confidential sources and information. We may withhold records
whose release could reasonably be expected to disclose the identity of a
confidential source of information. A confidential source may be an
individual; a State, local, or foreign government agency; or any private
organization. The exemption applies whether the source provides
information under an express promise of confidentiality or under
circumstances from which such an assurance could be reasonably inferred.
Also, where the record, or information in it, has been compiled by a law
enforcement authority conducting a criminal investigation, or by an
agency conducting a lawful national security investigation, the
exemption also protects all information supplied by a confidential
source. Also protected from mandatory disclosure is any information
which, if disclosed, could reasonably be expected to jeopardize the
system of confidentiality that assures a flow of information from
sources to investigatory agencies.
(e) Techniques and procedures. We may withhold records reflecting
special techniques or procedures of investigation or prosecution, not
otherwise generally known to the public. In some cases, it is not
possible to describe even in general terms those techniques without
disclosing the very material to be withheld. We may also withhold
records whose release would disclose guidelines for law enforcement
investigations or prosecutions if this disclosure could reasonably be
expected to create a risk that someone could circumvent requirements of
law or of regulation.
(f) Life and physical safety. We may withhold records whose
disclosure could reasonably be expected to endanger the life or physical
safety of any individual. This protection extends to threats and
harassment as well as to physical violence.
[62 FR 4154, Jan. 29, 1997. Redesignated at 63 FR 35132, June 29, 1998]
Sec. 402.110 Exemptions eight and nine for withholding records: Records on financial institutions; records on wells.
Exemption eight permits us to withhold records about regulation or
supervision of financial institutions. Exemption nine permits the
withholding of geological and geophysical information and data,
including maps, concerning wells.
Sec. 402.125 Who may release a record.
Except as otherwise provided by regulation, only the Director,
Office of Disclosure Policy, SSA, or her or his designee may determine
whether to release any record in SSA's control and possession. This
official is SSA's Freedom of Information Officer. Sections 402.40,
402.55, and 402.60 list some of the materials which we have determined
may be released.
Sec. 402.130 How to request a record.
You may request a record in person or by mail or by electronic
telecommunications. To the extent practicable, and in the future, we
will attempt to provide access for requests by telephone, fax, Internet,
and e-mail. Any request should reasonably describe the record you want.
If you have detailed information which would assist us in identifying
that record, please submit it with your request. We may charge fees for
some requests (Secs. 402.145-402.175 explain our fees). You should
identify the request as a Freedom of Information Act request and mark
the outside of any envelope used to submit your request as a ``Freedom
of Information Request.'' The staff at any Social Security office can
help you prepare this request.
[63 FR 35132, June 29, 1998]
[[Page 34]]
Sec. 402.135 Where to send a request.
You may send your request for a record to: The Director, Office of
Disclosure Policy, Social Security Administration, 6401 Security
Boulevard, Baltimore, Maryland 21235.
Sec. 402.140 How a request for a record is processed.
(a) In general, we will make a determination as to whether a
requested record will be provided within 20 days (excepting Saturdays,
Sundays, and legal public holidays) after receipt of a request by the
appropriate official (see Sec. 402.135). This 20-day period may be
extended in unusual circumstances by written notice to you, explaining
why we need additional time, and the extension may be for up to 10
additional working days when one or more of the following situations
exist:
(1) The office processing the request needs to locate and then
obtain the record from another facility;
(2) We need to locate, obtain, and appropriately examine a large
number of records which are requested in a single request; or
(3) The office processing the request needs to consult with another
agency which has a substantial interest in the subject matter of the
request. This consultation shall be conducted with all practicable
speed.
(b) If we cannot process your request within 10 additional days, we
will notify you and provide you an opportunity to limit the scope of the
request so that it may be processed within the additional 10 days, or we
will provide you with an opportunity to arrange with us an alternative
time frame for processing the request, or for processing a modified
request.
(c) Multi-tracking procedures. We will establish four tracks for
handling requests and the track to which a request is assigned will
depend on the nature of the request and the estimated processing time:
(1) Track 1--Requests that can be answered with readily available
records or information. These are the fastest to process.
(2) Track 2--Requests where we need records or information from
other offices throughout the Agency but we do not expect that the
decision on disclosure will be as time consuming as for requests in
Track 3.
(3) Track 3--Requests which require a decision or input from another
office or agency and a considerable amount of time will be needed for
that, or the request is complicated or involves a large number of
records. Usually, these cases will take the longest to process.
(4) Track 4--Requests that will be expedited.
(d) We will provide for expedited access for requesters who show a
``compelling need'' for a speedy response. The EFOIA describes
compelling need as when the failure to obtain the records on an
expedited basis could reasonably be expected to pose ``an imminent
threat to the life or physical safety of an individual,'' or when the
request is from a person primarily engaged in disseminating information
(such as a member of the news media), and there is an ``urgency to
inform the public concerning actual or alleged Federal Government
activity.'' We also will expedite processing of a request if the
requester explains in detail to our satisfaction that a prompt response
is needed because the requester may be denied a legal right, benefit, or
remedy without the requested information, and that it cannot be obtained
elsewhere in a reasonable amount of time. We will respond within 10 days
to a request for expedited processing and, if we decide to grant
expedited processing, we will then notify you of our decision whether or
not to disclose the records requested as soon as practicable.
[63 FR 35133, June 29, 1998]
Sec. 402.145 Responding to your request.
(a) Retrieving records. We are required to furnish copies of records
only when they are in our possession or we can retrieve them from
storage. We will make reasonable efforts to search for records manually
or by automated means, including any information stored in an electronic
form or format, except when such efforts would significantly interfere
with the operation of our automated information system. If we have
stored the records you want in the National Archives or another storage
center, we will retrieve and review them for possible disclosure.
However, the Federal Government destroys
[[Page 35]]
many old records, so sometimes it is impossible to fill requests.
Various laws, regulations, and manuals give the time periods for keeping
records before they may be destroyed. For example, there is information
about retention of records in the Records Disposal Act of 1944, 44
U.S.C. 3301 through 3314; the Federal Property Management Regulations,
41 CFR 101-11.4; and the General Records Schedules of the National
Archives and Records Administration.
(b) Furnishing records. We will furnish copies only of records that
we have or can retrieve. We are not required to create new records or to
perform research for you. We may decide to conserve Government resources
and at the same time supply the records you need by consolidating
information from various records rather than copying them all. For
instance, we could extract sections from various similar records instead
of providing repetitious information. We generally will furnish only one
copy of a record. We will make reasonable efforts to provide the records
in the form or format you request if the record is readily reproducible
in that form or format.
(c) Deletions. When we publish or otherwise make available any
record, we may delete information that is exempt from disclosure. For
example, in an opinion or order, statement of policy, or other record
which relates to a private party or parties, the name or names and other
identifying details may be deleted. When technically feasible, we will
indicate the extent of deletions on the portion of the record that is
released or published at the place of the deletion unless including that
indication would harm an interest protected by an exemption. If we deny
a request, in whole or in part, we will make a reasonable effort to
estimate the volume of any requested matter that is not disclosed,
unless such an estimate would harm an interest protected by an
exemption.
(d) Creation of records. We are not required to create new records
merely to satisfy a request. However, we will search manually or by
automated means to locate information that is responsive to the request.
If extensive computer programming is needed to respond to a request, we
may decline to commit such resources, or if we agree to do so, we may
charge you for the reasonable cost of doing so. We do not mean that we
will never help you get information that does not already exist in our
records. However, diverting staff and equipment from our other
responsibilities may not always be possible.
[63 FR 35133, June 29, 1998]
Sec. 402.150 Release of records.
(a) Records previously released. If we have released a record, or a
part of a record, to others in the past, we will ordinarily release it
to you also. However, we will not release it to you if a statute forbids
this disclosure, and we will not necessarily release it to you if an
exemption applies in your situation and it did not apply, or applied
differently, in the previous situation(s) or if the previous release was
unauthorized. See Sec. 402.45(d) regarding records in electronic reading
rooms.
(b) Poor copy. If we cannot make a legible copy of a record to be
released, we do not attempt to reconstruct it. Instead, we furnish the
best copy possible and note its poor quality in our reply.
[62 FR 4154, Jan. 29, 1997, as amended at 63 FR 35133, June 29, 1998]
Sec. 402.155 Fees to be charged--categories of requests.
Paragraphs (a) through (c) of this section state, for each category
of request, the type of fees that we will generally charge. However, for
each of these categories, the fees may be limited, waived, or reduced
for the reasons given below or for other reasons.
(a) Commercial use request. If your request is for a commercial use,
we will charge you the costs of search, review, and duplication.
(b) Educational and scientific institutions and news media. If you
are an educational institution or a non-commercial scientific
institution, operated primarily for scholarly or scientific research, or
a representative of the news media, and your request is not for a
commercial use, we will charge you only for the duplication of
documents. Also, we will not charge you the copying costs for the first
100 pages of duplication.
[[Page 36]]
(c) Other requesters. If your request is not the kind described by
paragraph (a) or (b) of this section, then we will charge you only for
the search and the duplication. Also, we will not charge you for the
first two hours of search time or for the copying costs of the first 100
pages of duplication.
Sec. 402.160 Fees to be charged--general provisions.
(a) We may charge search fees even if the records we find are exempt
from disclosure, or even if we do not find any records at all.
(b) If we are not charging you for the first two hours of search
time, under paragraph (c) of Sec. 402.155, and those two hours are spent
on a computer search, then the two free hours are the first two hours of
the time needed to access the information in the computer.
(c) If we are not charging you for the first 100 pages of
duplication, under paragraph (b) or (c) of Sec. 402.155, then those 100
pages are the first 100 pages of photocopies of standard size pages, or
the first 100 pages of computer printout.
(d) We will charge interest on unpaid bills beginning on the 31st
day following the day the bill was sent.
[62 FR 4154, Jan. 29, 1997, as amended at 63 FR 35134, June 29, 1998]
Sec. 402.165 Fee schedule.
The following is our fee schedule for providing records and related
services under the FOIA:
(a) Manual searching for or reviewing of records. When the search or
review is performed by employees at grade GS-1 through GS-8, we will
charge an hourly rate based on the salary of a GS-5, step 7, employee;
when done by a GS-9 through GS-14, an hourly rate based on the salary of
a GS-12, step 4, employee; and when done by a GS-15 or above, an hourly
rate based on the salary of a GS-15, step 7, employee. In each case, we
will compute the hourly rate by taking the current hourly rate for the
specified grade and step, adding 16% of that rate to cover benefits, and
rounding to the nearest whole dollar. As of January 5, 1997, these rates
were $14, $28, and $50 respectively. These rates are adjusted as Federal
salaries change. When a search involves employees at more than one of
these levels, we will charge the rate appropriate for each.
(b) Computer searching and printing. We will charge the actual cost
of operating the computer plus charges for the time spent by the
operator, at the rates given in paragraph (a) of this section.
(c) Photocopying standard size pages. We will charge $0.10 per page.
The Freedom of Information (FOI) Officer may charge lower fees for
particular documents where--
(1) The document has already been printed in large numbers;
(2) The program office determines that using existing stock to
answer this request, and any other anticipated FOI requests, will not
interfere with program requirements; and
(3) The FOI Officer determines that the lower fee is adequate to
recover the prorated share of the original printing costs.
(d) Photocopying odd-size documents. For photocopying documents such
as punchcards or blueprints, or reproducing other records such as tapes,
we will charge the actual costs of operating the machine, plus the
actual cost of the materials used, plus charges for the time spent by
the operator, at the rates given in paragraph (a) of this section.
(e) Certifying that records are true copies. This service is not
required by the FOIA. If we agree to provide it, we will charge $10 per
certification.
(f) Sending records by express mail, certified mail, or other
special methods. This service is not required by the FOIA. If we agree
to provide it, we will charge our actual costs.
(g) Other special services. For performing any other special service
that you request and we agree to, we will charge the actual costs of
operating any machinery, plus actual cost of any materials used, plus
charges for the time of our employees, at the rates given in paragraph
(a) of this section.
(h) Billing exceeds cost of service. Generally we will not charge
you a fee when the cost of the service is less than the cost of sending
you a bill. However, where an individual, organization, or governmental
unit makes multiple separate requests, we will
[[Page 37]]
total the costs incurred and periodically bill the requester for the
services rendered.
(i) Fee for copies of printed materials. When extra copies of
printed material are available, the charge is generally 1 cent per page.
If the material may be purchased from the Superintendent of Documents,
the charge is that set by the Superintendent. The Superintendent's
address is in Sec. 402.40.
(j) When not applicable. This fee schedule does not apply to
requests for records of Social Security number holders, wage earners,
employers, and claimants when the requests are governed by section 1106
of the Social Security Act and by Secs. Sections 402.170 and 402.175.
Sec. 402.170 Fees for providing records and related services for program purposes pursuant to section 1106 of the Social Security Act.
(a) Program purposes described. (1) We consider a request to be
program related if the information must be disclosed under the Social
Security Act. For example, section 205(c)(2)(A) of the Act (42 U.S.C.
405(c)(2)(A)) requires that we provide certain information upon request
to a worker, her or his legal representative, her or his survivor, or
the legal representative of the worker's estate. That information is the
amounts of the worker's wages and self-employment income and the periods
during which they were paid or derived, as shown by our records.
(2) We also consider a request to be program related if the
requester indicates the needed information will be used for a purpose
which is directly related to the administration of a program under the
Social Security Act.
(i) The major criteria we consider in deciding whether a proposed
use is so related are:
(A) Is the information needed to pursue some benefit under the Act?
(B) Is the information needed solely to verify the accuracy of
information obtained in connection with a program administered under the
Act?
(C) Is the information needed in connection with an activity which
has been authorized under the Act?
(D) Is the information needed by an employer to carry out her or his
taxpaying responsibilities under the Federal Insurance Contributions Act
or section 218 of the Act?
(ii) We will consider on a case by case basis those requests which
do not meet these criteria but are claimed to be program related.
(b) When we charge. If we determine the request for information is
program related, we may or may not charge for the information. For
example, as stated in paragraph (a) of this section, we generally will
not charge you for information needed to assure the accuracy of our
records on which your present or future Social Security benefits depend.
In addition, we generally will not charge for furnishing information
under section 205(c)(2)(A) of the Act. However, if we do charge for a
program related request (for example, if more detailed information or
special services are requested) we will use the fee schedule in
Sec. 402.165 if information is being disclosed under the FOIA and the
fee schedule in 20 CFR 401.95 if access to the information is being
granted under the Privacy Act. (Exception: If the request is for
purposes of administering employee benefits covered by the Employee
Retirement Income Security Act of 1974 (ERISA), even if the request is
covered by section 205(c)(2)(A) of the Act, we will charge under
Sec. 402.175.)
Sec. 402.175 Fees for providing information and related services for non-program purposes.
(a) General. Section 1106(c) of the Social Security Act permits the
Commissioner to require requesters of information to pay the full cost
of supplying the information where the information is requested to
comply with the ERISA, or ``* * * for any other purpose not directly
related to the administration of the program or programs under * * *''
the Social Security Act. This may be done notwithstanding the fee
provisions of the FOIA and the Privacy Act or any other provision of
law. As used in this section--
(1) Full cost includes the direct and indirect costs to SSA
(including costs of duplication) of providing information and related
services under section 1106(c) of the Act; and
[[Page 38]]
(2) Full cost of an employee's time includes fringe benefits and
overhead costs such as rent and utilities.
(b) Non-program related requests. We consider a request for
information which does not meet or equal any of the criteria in
Sec. 402.170 to be non-program related. (Whether a request for
information about an individual is made by that individual or by someone
else is not a factor.) In responding to these requests, or requests for
ERISA purposes, we will charge the full cost of our services as
described in paragraph (c) of this section.
(c) Fee schedule. Our fee schedule for non-program related requests
is:
(1) Manual searching for records. Full cost of the employee's time.
(2) Photocopying, or reproducing records such as magnetic tapes or
punch cards. Full cost of the operator's time plus the full cost of the
machine time and the materials used.
(3) Use of electronic data processing equipment to obtain records.
Our full cost for the service, including computer search time, computer
runs and printouts, and the time of computer programmers and operators
and other employees.
(4) Certification or authentication of records. Full cost of
certification or authentication.
(5) Forwarding materials to destination. If you request special
arrangements for forwarding the material, we will charge you the full
cost of this service (e.g., you request express mail or a commercial
delivery service). If no special forwarding arrangements are requested,
we will charge you the full cost of the service, including the U.S.
Postal Service cost.
(6) Performing other special services. If we agree to provide any
special services you request, we will charge you the full cost of the
time of the employee who performs the service, plus the full cost of any
machine time and materials that the employee uses.
(7) Billing exceeds cost of service. Generally we will not charge
you a fee when the cost of the service is less than the cost of sending
you a bill. However, where an individual, organization, or governmental
unit makes multiple separate requests, we will total the costs incurred
and bill the requester for the services rendered.
(d) Fee for copies of printed materials. When extra copies of
printed material are available, the charge is generally 1 cent per page.
If the material may be purchased from the Superintendent of Documents,
the charge is that set by the Superintendent. The Superintendent's
address is in Sec. 402.40.
(e) Charging when requested record not found. We may charge you for
search time, even though we fail to find the records. We may also charge
you for search time if the records we locate are exempt from disclosure.
Sec. 402.180 Procedure on assessing and collecting fees for providing records.
(a) We will generally assume that when you send us a request, you
agree to pay for the services needed to locate and send that record to
you. You may specify in your request a limit on the amount you are
willing to spend. If you do that or include with your request a payment
that does not cover our fee, we will notify you if it appears that the
fee will exceed that amount and ask whether you want us to continue to
process your request. Also, before we start work on your request under
Sec. 402.120, we will generally notify you of our exact or estimated
charge for the information, unless it is clear that you have a
reasonable idea of the cost.
(b) If you have failed to pay previous bills in a timely fashion, or
if our initial review of your request indicates that we will charge you
fees exceeding $250, we will require you to pay your past due fees and/
or the estimated fees, or a deposit, before we start searching for the
records you want. If so, we will let you know promptly upon receiving
your request. In such cases, administrative time limits (i.e., ten
working days from receipt of initial requests and 20 working days from
receipt of appeals from initial denials, plus permissible extensions of
these time limits) will begin only after we come to an agreement with
you over payment of fees, or decide that fee waiver or reduction is
appropriate.
(c) We will normally require you to pay all fees before we furnish
the
[[Page 39]]
records to you. We may, at our discretion, send you a bill along with or
following the furnishing of the records. For example, we may do this if
you have a history of prompt payment. We may also, at our discretion,
aggregate the charges for certain time periods in order to avoid sending
numerous small bills to frequent requesters, or to businesses or agents
representing requesters. For example, we might send a bill to such a
requester once a month. Fees should be paid in accordance with the
instructions furnished by the person who responds to your requests.
(d) Payment of fees will be made by check or money order payable to
``Social Security Administration''.
Sec. 402.185 Waiver or reduction of fees in the public interest.
(a) Standard. We will waive or reduce the fees we would otherwise
charge if disclosure of the information meets both tests which are
explained in paragraphs (b) and (c) of this section:
(1) It is in the public interest because it is likely to contribute
significantly to public understanding of the operations or activities of
the government; and
(2) It is not primarily in the commercial interest of the requester.
(b) Public interest. The disclosure passes the first test only if it
furthers the specific public interest of being likely to contribute
significantly to public understanding of government operations or
activities, regardless of any other public interest it may further. In
analyzing this question, we will consider the following factors:
(1) How, if at all, do the records to be disclosed pertain to the
operations or activities of the Federal Government?
(2) Would disclosure of the records reveal any meaningful
information about government operations or activities? Can one learn
from these records anything about such operations that is not already
public knowledge?
(3) Will the disclosure advance the understanding of the general
public as distinguished from a narrow segment of interested persons?
Under this factor we may consider whether the requester is in a position
to contribute to public understanding. For example, we may consider
whether the requester has such knowledge or expertise as may be
necessary to understand the information, and whether the requester's
intended use of the information would be likely to disseminate the
information among the public. An unsupported claim to be doing research
for a book or article does not demonstrate that likelihood, while such a
claim by a representative of the news media is better evidence.
(4) Will the contribution to public understanding be a significant
one? Will the public's understanding of the government's operations be
substantially greater as a result of the disclosure?
(c) Not primarily in the requester's commercial interest. If the
disclosure passes the test of furthering the specific public interest
described in paragraph (b) of this section, we will determine whether it
also furthers the requester's commercial interest and, if so, whether
this effect outweighs the advancement of that public interest. In
applying this second test, we will consider the following factors:
(1) Would the disclosure further a commercial interest of the
requester, or of someone on whose behalf the requester is acting?
``Commercial interests'' include interests relating to business, trade,
and profit. Not only profit-making corporations have commercial
interests--so do nonprofit corporations, individuals, unions, and other
associations. The interest of a representative of the news media in
using the information for news dissemination purposes will not be
considered a commercial interest.
(2) If disclosure would further a commercial interest of the
requester, would that effect outweigh the advancement of the public
interest defined in paragraph (b) of this section? Which effect is
primary?
(d) Deciding between waiver and reduction. If the disclosure passes
both tests, we will normally waive fees. However, in some cases we may
decide only to reduce the fees. For example, we may do this when
disclosure of some but not all of the requested records passes the
tests.
(e) Procedure for requesting a waiver or reduction. You must make
your request for a waiver or reduction at the same time you make your
request for
[[Page 40]]
records. You should explain why you believe a waiver or reduction is
proper under the analysis in paragraphs (a) through (d) of this section.
Only FOI Officers may make the decision whether to waive, or reduce, the
fees. If we do not completely grant your request for a waiver or
reduction, the denial letter will designate a review official. You may
appeal the denial to that official. In your appeal letter, you should
discuss whatever reasons are given in our denial letter. The process
prescribed in Sec. 402.190 of this part will also apply to these
appeals.
Sec. 402.190 Officials who may deny a request for records under FOIA.
Only the Director, Office of Disclosure Policy, SSA, or her or his
designee is authorized to deny a written request to obtain, inspect, or
copy any social security record.
Sec. 402.195 How a request is denied.
(a) Oral requests. If we cannot comply with your oral request
because the Director of the Office of Disclosure Policy (or designee)
has not previously made a determination to release the record you want,
we will tell you that fact. If you still wish to pursue your request,
you must put your request in writing.
(b) Written requests. If you make a written request and the
information or record you requested will not be released, we will send
you an official denial in writing. We will explain why the request was
denied (for example, the reasons why the requested document is subject
to one or more clearly described exemptions), will include the name and
title or position of the person who made the decision, and what your
appeal rights are.
(c) Unproductive searches. We make a diligent search for records to
satisfy your request. Nevertheless, we may not be able always to find
the records you want using the information you provided, or they may not
exist. If we advise you that we have been unable to find the records
despite a diligent search, this does not constitute a denial of your
request.
Sec. 402.200 How to appeal a decision denying all or part of a request.
(a) How to appeal. If all or part of your written request was
denied, you may request that the Commissioner of Social Security, 6401
Security Boulevard, Baltimore, MD 21235 review that determination. Your
request for review:
(1) Must be in writing;
(2) Must be mailed within 30 days after you received notification
that all or part of your request was denied or, if later, 30 days after
you received materials in partial compliance with your request; and
(3) May include additional information or evidence to support your
request.
(b) How the review is made. After reviewing the prior decision and
after considering anything else you have submitted, the Commissioner or
his or her designee will affirm or revise all or part of the prior
decision. The Commissioner (or a designee) will affirm a denial only
after consulting with the appropriate SSA official(s), including legal
counsel. The decision must be made within 20 working days after your
appeal is received. The Commissioner or a designee may extend this time
limit up to 10 additional working days if one of the situations in
Sec. 402.140(a) exists, provided that, if a prior extension was used to
process this request, the sum of the extensions may not exceed 10
working days. You will be notified in writing of any extension, the
reason for the extension, and the date by which your appeal will be
decided.
(c) How you are notified of the Commissioner's decision. The
Commissioner or a designee will send you a written notice of the
decision explaining the basis of the decision (for example, the reasons
why an exemption applies) which will include the name and title or
position of the person who made the decision. The notice will tell you
that if any part of your request remains unsatisfied, you have the right
to seek court review.
Sec. 402.205 U.S. District Court action.
If the Commissioner or a designee, upon review, affirms the denial
of your request for records, in whole or in part,
[[Page 41]]
you may ask a U.S. District Court to review that denial. See 5 U.S.C.
552(a)(4)(B). If we fail to act on your request for a record or for
review of a denial of such a request within the time limits in
Sec. 402.140(a) or in Sec. 402.190(b), you may ask a U.S. District Court
to treat this as if the Commissioner had denied your request.
PART 403--TESTIMONY BY EMPLOYEES AND THE PRODUCTION OF RECORDS AND INFORMATION IN LEGAL PROCEEDINGS--Table of Contents
Sec.
403.100 When can an SSA employee testify or produce information or
records in legal proceedings?
403.105 What is the relationship between this part and 20 CFR parts 401
and 402?
403.110 What special definitions apply to this part?
403.115 When does this part apply?
403.120 How do you request testimony?
403.125 How will we handle requests for records, information, or
testimony involving SSA's Office of the Inspector General?
403.130 What factors may the Commissioner consider in determining
whether SSA will grant your application for testimony?
403.135 What happens to your application for testimony?
403.140 If the Commissioner authorizes testimony, what will be the
scope and form of that testimony?
403.145 What will SSA do if you have not satisfied the conditions in
this part or in 20 CFR part 401 or 402?
403.150 Is there a fee for our services?
403.155 Does SSA certify records?
Authority: Secs. 702(a)(5) and 1106 of the Act, (42 U.S.C. 902(a)(5)
and 1306); 5 U.S.C. 301; 31 U.S.C. 9701.
Source: 66 FR 2809, Jan. 12, 2001, unless otherwise noted.
Sec. 403.100 When can an SSA employee testify or produce information or records in legal proceedings?
An SSA employee can testify concerning any function of SSA or any
information or record created or acquired by SSA as a result of the
discharge of its official duties in any legal proceeding covered by this
part only with the prior authorization of the Commissioner. An SSA
employee can provide records or other information in a legal proceeding
covered by this part only to the extent that doing so is consistent with
20 CFR parts 401 and 402. A request for both testimony and records or
other information is considered two separate requests--one for testimony
and one for records or other information. SSA maintains a policy of
strict impartiality with respect to private litigants and seeks to
minimize the disruption of official duties.
Sec. 403.105 What is the relationship between this part and 20 CFR parts 401 and 402?
(a) General. Disclosure of SSA's records and information contained
in those records is governed by the regulations at 20 CFR parts 401 and
402. SSA employees will not disclose records or information in any legal
proceeding covered by this part except as permitted by 20 CFR parts 401
and 402.
(b) Requests for information or records that do not include
testimony.
(1) If you do not request testimony, Secs. 403.120-403.140 do not
apply.
(2) If 20 CFR part 401 or 402 permits disclosure to you of any
requested record or information, we will make every reasonable effort to
provide the disclosable information or record to you on or before the
date specified in your request.
(3) If neither 20 CFR part 401 nor 402 permits disclosure of
information or a record you request, we will notify you as provided in
Sec. 403.145. We will also send you any notices required by part 401 or
402.
Sec. 403.110 What special definitions apply to this part?
The following definitions apply:
(a) Application means a written request for testimony that conforms
to the requirements of Sec. 403.120.
(b)(1) Employee includes--
(i) Any person employed in any capacity by SSA, currently or in the
past;
(ii) Any person appointed by, or subject to the supervision,
jurisdiction, or control of SSA, the Commissioner of Social Security, or
any other SSA official, currently or in the past; and
(iii) Any person who is not described elsewhere in this definition
but whose disclosure of information is subject to
[[Page 42]]
the regulations at 20 CFR part 401, currently or in the past.
(2) For purposes of this paragraph (b), a person subject to SSA's
jurisdiction or control includes any person hired as a contractor by
SSA, any person performing services for SSA under an agreement (such as
an officer or employee of a State agency involved in determining
disability for SSA), and any consultant (including medical or vocational
experts or medical services or consultative examination providers),
contractor, or subcontractor of such person. Such a person would also
include any person who has served or is serving in any advisory
capacity, formal or informal.
(3) For purposes of this paragraph (b), a person employed by SSA in
the past is considered an employee only when the matter about which the
person would testify is one in which he or she was personally involved
while at SSA; where the matter concerns official information that the
employee acquired while working, such as sensitive or confidential
agency information; where the person purports to speak for SSA; or where
significant SSA resources would be required to prepare the person to
testify. Such a person would not be considered an employee when the
person will rely only on expertise or general knowledge he or she
acquired while working at SSA.
(c) Commissioner means the Commissioner of Social Security or his or
her designee(s).
(d) Legal proceeding includes any pretrial, trial, and post-trial
stage of any existing or reasonably anticipated judicial or
administrative action, hearing, investigation, or similar proceeding
before a court, commission, board, agency, or other tribunal, authority
or entity, foreign or domestic. Legal proceeding also includes any
deposition or other pretrial proceeding, including a formal or informal
request for testimony by an attorney or any other person.
(e) Record has the same meaning as ``record'' in 20 CFR 402.30.
(f) Request means any attempt to obtain the production, disclosure,
or release of information, records, or the testimony of an SSA employee,
including any order, subpoena, or other command issued in a legal
proceeding as well as any informal or other attempt (by any method) by a
party or a party's representative.
(g) SSA means the Social Security Administration.
(h) Testimony includes any sworn statement (oral or written),
including (but not limited to)--
(1) Any statement provided through personal appearance; deposition;
or recorded interview; or provided by telephone, television, or
videotape;
(2) Any response during discovery or other similar proceedings that
would involve more than the mere physical production of records; and
(3) Any declaration made under penalty of perjury or any affidavit.
(i) We or our means the Social Security Administration.
(j) You or your means an individual or entity that submits a request
for records, information or testimony.
Sec. 403.115 When does this part apply?
(a) Except as specified in paragraph (b) of this section, this part
applies to any request in connection with any legal proceeding for SSA
records or other information or for testimony from SSA or its employees.
This part applies to requests for testimony related to SSA's functions
or to any information or record created or acquired by SSA as a result
of the discharge of its official duties.
(b) This part does not apply to requests for testimony--
(1) In an SSA administrative proceeding;
(2) In a legal proceeding to which SSA is a party (``SSA'' here
includes the Commissioner and any employee acting in his or her official
capacity);
(3) From the United States Department of Justice;
(4) In a criminal proceeding in which the United States is a party;
(5) In a legal proceeding initiated by state or local authorities
arising from an investigation or audit initiated by, or conducted in
cooperation with, SSA's Office of the Inspector General;
(6) From either house of Congress;
(7) In a law enforcement proceeding related to threats or acts
against SSA, its employees, or its operations (``SSA'' here includes the
Commissioner and
[[Page 43]]
any employee acting in his or her official capacity); or
(8) Where Federal law or regulations expressly require a Federal
employee to provide testimony.
Sec. 403.120 How do you request testimony?
(a) You must submit a written application for testimony of an SSA
employee. Your application must-
(1) Describe in detail the nature and relevance of the testimony
sought in the legal proceeding;
(2) Include a detailed explanation as to why you need the testimony,
why you cannot obtain the information you need from an alternative
source, and why providing it to you would be in SSA's interest; and
(3) Provide the date and time that you need the testimony and the
place where SSA would present it.
(b) You must submit a complete application to SSA at least 30 days
in advance of the date that you need the testimony. If your application
is submitted fewer than 30 days before that date, you must provide, in
addition to the requirements set out above, a detailed explanation as to
why--
(1) You did not apply in a timely fashion; and
(2) It is in SSA's interest to review the untimely application.
(c) You must send your application for testimony to: Social Security
Administration, Office of the General Counsel, Office of General Law,
P.O. Box 17779, Baltimore, MD 21235-7779, Attn: Touhy Officer. (If you
are requesting testimony of an employee of the Office of the Inspector
General, send your application to the address in Sec. 403.125.)
(d) The Commissioner has the sole discretion to waive any
requirement in this section.
(e) If your application does not include each of the items required
by paragraph (a) of this section, we may return it to you for additional
information. Unless the Commissioner waives one or more requirements, we
will not process an incomplete or untimely application.
[66 FR 2809, Jan. 12, 2001; 66 FR 14316, Mar. 12, 2001]
Sec. 403.125 How will we handle requests for records, information, or testimony involving SSA's Office of the Inspector General?
A request for records or information of the Office of the Inspector
General or the testimony of an employee of the Office of the Inspector
General will be handled in accordance with the provisions of this part,
except that the Inspector General or the Inspector General's designee
will make those determinations that the Commissioner otherwise would
make. Send your request for records or information pertaining to the
Office of the Inspector General or your application for testimony of an
employee of the Office of the Inspector General to: Office of the
Inspector General, Social Security Administration, 300 Altmeyer
Building, 6401 Security Blvd., Baltimore, MD 21235-6401.
Sec. 403.130 What factors may the Commissioner consider in determining whether SSA will grant your application for testimony?
In deciding whether to authorize the testimony of an SSA employee,
the Commissioner will consider applicable law and factors relating to
your need and the burden to SSA. The considerations include, but are not
limited to, the following:
(a) Risk of law violation or compromise of Government privilege.
(1) Would providing the testimony violate a statute (such as 26
U.S.C. 6103 or section 1106 of the Social Security Act, 42 U.S.C. 1306),
Executive Order, or regulation (such as 20 CFR part 401)?
(2) Would providing the testimony put confidential, sensitive, or
privileged information at risk?
(b) Burden on SSA. (1) Would granting the application unduly expend
for private purposes the resources of the United States (including the
time of SSA employees needed for official duties)?
(2) Would the testimony be available in a less burdensome form or
from another source?
(3) Would the testimony be limited to the purpose of the request?
(4) Did you previously request the same testimony in the same or a
related proceeding?
[[Page 44]]
(c) Interests served by allowing testimony. (1) Would providing the
testimony serve SSA's interest?
(2) Would providing the testimony maintain SSA's policy of
impartiality among private litigants?
(3) Is another government agency involved in the proceeding?
(4) Do you need the testimony to prevent fraud or similar
misconduct?
(5) Would providing the testimony be necessary to prevent a
miscarriage of justice or to preserve the rights of an accused
individual to due process in a criminal proceeding?
Sec. 403.135 What happens to your application for testimony?
(a) If 20 CFR part 401 or 402 does not permit disclosure of
information about which you seek testimony from an SSA employee, we will
notify you under Sec. 403.145.
(b) If 20 CFR part 401 or 402 permits disclosure of the information
about which you seek testimony,
(1) The Commissioner makes the final decision on your application;
(2) All final decisions are in the sole discretion of the
Commissioner; and
(3) We will notify you of the final decision on your application.
Sec. 403.140 If the Commissioner authorizes testimony, what will be the scope and form of that testimony?
The employee's testimony must be limited to matters that were
specifically approved. We will provide testimony in the form that is
least burdensome to SSA unless you provide sufficient information in
your application for SSA to justify a different form. For example, we
will provide an affidavit or declaration rather than a deposition and a
deposition rather than trial testimony.
Sec. 403.145 What will SSA do if you have not satisfied the conditions in this part or in 20 CFR part 401 or 402?
(a) We will provide the following information, as appropriate, to
you or the court or other tribunal conducting the legal proceeding if
your request states that a response is due on a particular date and the
conditions prescribed in this part, or the conditions for disclosure in
20 CFR part 401 or 402, are not satisfied or we anticipate that they
will not be satisfied by that date:
(1) A statement that compliance with the request is not authorized
under 20 CFR part 401 or 402, or is prohibited without the
Commissioner's approval;
(2) The requirements for obtaining the approval of the Commissioner
for testimony or for obtaining information, records, or testimony under
20 CFR part 401 or 402; and
(3) If the request complies with Sec. 403.120, the estimated time
necessary for a decision. We will make every reasonable effort to
provide this information in writing on or before the date specified in
your request.
(b) Generally, if a response to a request for information, records,
or testimony is due before the conditions of this Part or the conditions
for disclosure in 20 CFR part 401 or 402 are met, no SSA employee will
appear.
(c) SSA will seek the advice and assistance of the Department of
Justice when appropriate.
Sec. 403.150 Is there a fee for our services?
(a) General. Unless the Commissioner grants a waiver, you must pay
fees for our services in providing information, records, or testimony.
You must pay the fees as prescribed by the Commissioner. In addition,
the Commissioner may require that you pay the fees in advance as a
condition of providing the information, records, or testimony. Make fees
payable to the Social Security Administration by check or money order.
(b) Records or information. Unless the Commissioner grants a waiver,
you must pay the fees for production of records or information
prescribed in 20 CFR Sec. Sec. 401.95 and 402.155 through 402.185, as
appropriate.
(c) Testimony. Unless the Commissioner grants a waiver, you must pay
fees calculated to reimburse the United States Government for the full
cost of providing the testimony. Those costs include, but are not
limited to--
(1) The salary or wages of the witness and related costs for the
time necessary to prepare for and provide the testimony and any travel
time, and
(2) Other travel costs.
[[Page 45]]
(d) Waiver or reduction of fees. The Commissioner may waive or
reduce fees for providing information, records, or testimony under this
Part. The rules in 20 CFR Sec. 402.185 apply in determining whether to
waive fees for the production of records. In deciding whether to waive
or reduce fees for testimony or for production of information that does
not constitute a record, the Commissioner may consider other factors,
including but not limited to--
(1) The ability of the party responsible for the application to pay
the full amount of the chargeable fees;
(2) The public interest, as described in 20 CFR Sec. 402.185,
affected by complying with the application;
(3) The need for the testimony or information in order to prevent a
miscarriage of justice;
(4) The extent to which providing the testimony or information
serves SSA's interest; and
(5) The burden on SSA's resources required to provide the
information or testimony.
Sec. 403.155 Does SSA certify records?
We can certify the authenticity of copies of records we disclose
pursuant to 20 CFR parts 401 and 402, and this part. We will provide
this service only in response to your written request. If we certify, we
will do so at the time of the disclosure and will not certify copies of
records that have left our custody. A request for certified copies of
records previously released is considered a new request for records.
Fees for this certification are set forth in 20 CFR 402.165(e).
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950- )--Table of Contents
Subpart A--Introduction, General Provisions and Definitions
Sec.
404.1 Introduction.
404.2 General definitions and use of terms.
404.3 General provisions.
Subpart B--Insured Status and Quarters of Coverage
General
404.101 Introduction.
404.102 Definitions.
Fully Insured Status
404.110 How we determine fully insured status.
404.111 When we consider a person fully insured based on World War II
active military or naval service.
404.112 When we consider certain employees of private nonprofit
organizations to be fully insured.
404.115 Table for determining the quarters of coverage you need to be
fully insured.
Currently Insured Status
404.120 How we determine currently insured status.
Disability Insured Status
404.130 How we determine disability insured status.
404.131 When you must have disability insured status.
404.132 How we determine fully insured status for a period of
disability or disability insurance benefits.
404.133 When we give you quarters of coverage based on military service
to establish a period of disability.
Quarters of Coverage
404.140 What is a quarter of coverage.
404.141 How we credit quarters of coverage for calendar years before
1978.
404.142 How we credit self-employment income to calendar quarters for
taxable years beginning before 1978.
404.143 How we credit quarters of coverage for calendar years after
1977.
404.144 How we credit self-employment income to calendar years for
taxable years beginning after 1977.
404.145 When you acquire a quarter of coverage.
404.146 When a calendar quarter cannot be a quarter of coverage.
Appendix to Subpart B--Quarter of Coverage Amounts for Calendar Years
After 1978
Subpart C--Computing Primary Insurance Amounts
General
404.201 What is included in this subpart?
404.202 Other regulations related to this subpart.
404.203 Definitions.
404.204 Methods of computing primary insurance amounts--general.
[[Page 46]]
Average-Indexed-Monthly Earnings Method of Computing Primary Insurance
Amounts
404.210 Average-indexed-monthly-earnings method.
404.211 Computing your average indexed monthly earnings.
404.212 Computing your primary insurance amount from your average
indexed monthly earnings.
404.213 Computation where you are eligible for a pension based on your
noncovered employment.
Average-Monthly-Wage Method of Computing Primary Insurance Amounts
404.220 Average-monthly-wage method.
404.221 Computing your average monthly wage.
404.222 Use of benefit table in finding your primary insurance amount
from your average monthly wage.
Guaranteed Alternative for People Reaching Age 62 After 1978 but Before
1984
404.230 Guaranteed alternative.
404.231 Steps in computing your primary insurance amount under the
guaranteed alternative--general.
404.232 Computing your average monthly wage under the guaranteed
alternative.
404.233 Adjustment of your guaranteed alternative when you become
entitled after age 62.
Old-Start Method of Computing Primary Insurance Amounts
404.240 Old-start method--general.
404.241 1977 simplified old-start method.
404.242 Use of old-start primary insurance amount as guaranteed
alternative.
404.243 Computation where you are eligible for a pension based on
noncovered employment.
Special Computation Rules for People Who Had a Period of Disability
404.250 Special computation rules for people who had a period of
disability.
404.251 Subsequent entitlement to benefits less than 12 months after
entitlement to disability benefits ended.
404.252 Subsequent entitlement to benefits 12 months or more after
entitlement to disability benefits ended.
Special Minimum Primary Insurance Amounts
404.260 Special minimum primary insurance amounts.
404.261 Computing your special minimum primary insurance amount.
Cost-of-Living Increases
404.270 Cost-of-living increases.
404.271 When automatic cost-of-living increases apply.
404.272 Indexes we use to measure the rise in the cost-of-living.
404.273 When automatic cost-of-living increases are to be made.
404.274 Measuring the increase in the indexes.
404.275 Amount of automatic cost-of-living increases.
404.276 Publication of notice of increase.
404.277 When does the frozen minimum primary insurance amount increase
because of cost-of-living adjustments?
404.278 Additional cost-of-living increase.
Recomputing Your Primary Insurance Amount
404.280 Recomputations.
404.281 Why your primary insurance amount may be recomputed.
404.282 Effective date of recomputations.
404.283 Recomputation under method other than that used to find your
primary insurance amount.
404.284 Recomputations for people who reach age 62, or become disabled,
or die before age 62 after 1978.
404.285 Recomputations performed automatically.
404.286 How to request an immediate recomputation.
404.287 Waiver of recomputation.
404.288 Recomputing when you are entitled to a monthly pension based on
noncovered employment.
Recalculations of Primary Insurance Amounts
404.290 Recalculations.
Appendix I to Subpart C--Average of the Total Wages for Years After 1950
Appendix II to Subpart C--Benefit Formulas Used With Average Indexed
Monthly Earnings
Appendix III to Subpart C--Benefit Table
Appendix IV to Subpart C--Earnings Needed for a Year of Coverage After
1950
Appendix V to Subpart C--Computing the Special Minimum Primary Insurance
Amount and Related Maximum Family Benefits
Appendix VI to Subpart C--Percentage of Automatic Increases in Primary
Insurance Amounts Since 1978
Appendix VII to Subpart C--``Old-Law'' Contribution and Benefit Base
Subpart D--Old-Age, Disability, Dependents' and Survivors' Insurance
Benefits; Period of Disability
General
404.301 Introduction.
404.302 Other regulations related to this subpart.
[[Page 47]]
404.303 Definitions.
404.304 What are the general rules on benefit amounts?
404.305 When you may not be entitled to benefits.
Old-Age and Disability Benefits
404.310 When am I entitled to old-age benefits?
404.311 When does my entitlement to old-age benefits begin and end?
404.312 How is my old-age benefit amount calculated?
404.313 What are delayed retirement credits and how do they increase my
old-age benefit amount?
404.315 Who is entitled to disability benefits?
404.316 When entitlement to disability benefits begins and ends.
404.317 How is the amount of my disability benefit calculated?
404.320 Who is entitled to a period of disability.
404.321 When a period of disability begins and ends.
404.322 When you may apply for a period of disability after a delay due
to a physical or mental condition.
404.325 The termination month.
Benefits for Spouses and Divorced Spouses
404.330 Who is entitled to wife's or husband's benefits.
404.331 Who is entitled to wife's or husband's benefits as a divorced
spouse.
404.332 When wife's and husband's benefits begin and end.
404.333 Wife's and husband's benefit amounts.
404.335 How do I become entitled to widow's or widower's benefits?
404.336 How do I become entitled to widow's or widower's benefits as a
surviving divorced spouse?
404.337 When does my entitlement to widow's and widower's benefits
start and end?
404.338 How is the amount of my widow's or widower's benefit
calculated?
404.339 Who is entitled to mother's or father's benefits.
404.340 Who is entitled to mother's or father's benefits as a surviving
divorced spouse.
404.341 When mother's and father's benefits begin and end.
404.342 Mother's and father's benefit amounts.
404.344 Your relationship by marriage to the insured.
404.345 Your relationship as wife, husband, widow, or widower under
State law.
404.346 Your relationship as wife, husband, widow, or widower based
upon a deemed valid marriage.
404.347 ``Living in the same household'' defined.
404.348 When a child living with you is ``in your care''.
404.349 When a child living apart from you is ``in your care''.
Child's Benefits
404.350 Who is entitled to child's benefits.
404.351 Who may be reentitled to child's benefits.
404.352 When does my entitlement to child's benefits begin and end?
404.353 Child's benefit amounts.
404.354 Your relationship to the insured.
404.355 Who is the insured's natural child.
404.356 Who is the insured's legally adopted child.
404.357 Who is the insured's stepchild.
404.358 Who is the insured's grandchild or stepgrandchild.
404.359 Who is the insured's equitably adopted child.
404.360 When a child is dependent upon the insured person.
404.361 When a natural child is dependent.
404.362 When a legally adopted child is dependent.
404.363 When a stepchild is dependent.
404.364 When a grandchild or stepgrandchild is dependent.
404.365 When an equitably adopted child is dependent.
404.366 ``Contributions for support,'' ``one-half support,'' and
``living with'' the insured defined--determining first month
of entitlement.
404.367 When you are a ``full-time elementary or secondary school
student''.
404.368 When you are considered a full-time student during a period of
nonattendance.
Parent's Benefits
404.370 Who is entitled to parent's benefits.
404.371 When parent's benefits begin and end.
404.373 Parent's benefit amounts.
404.374 Parent's relationship to the insured.
Special Payments at Age 72
404.380 General.
404.381 Who is entitled to special age 72 payments.
404.382 When special age 72 payments begin and end.
404.383 Special age 72 payment amounts.
404.384 Reductions, suspensions, and nonpayments of special age 72
payments.
Lump-Sum Death Payment
404.390 General.
404.391 Who is entitled to the lump-sum death payment as a widow or
widower who was living in the same household.
[[Page 48]]
404.392 Who is entitled to the lump-sum death payment when there is no
widow(er) who was living in the same household.
Subpart E--Deductions; Reductions; and Nonpayments of Benefits
404.401 Deduction, reduction, and nonpayment of monthly benefits or
lump-sum death payments.
404.401a When we do not pay benefits because of a disability
beneficiary's work activity.
404.402 Interrelationship of deductions, reductions, adjustments, and
nonpayment of benefits.
404.403 Reduction where total monthly benefits exceed maximum family
benefits payable.
404.404 How reduction for maximum affects insured individual and other
persons entitled on his earnings record.
404.405 Situations where total benefits can exceed maximum because of
``savings clause.''
404.406 Reduction for maximum because of retroactive effect of
application for monthly benefits.
404.407 Reduction because of entitlement to other benefits.
404.408 Reduction of benefits based on disability on account of receipt
of certain other disability benefits provided under Federal,
State, or local laws or plans.
404.408a Reduction where spouse is receiving a Government pension.
404.408b Reduction of retroactive monthly social security benefits
where supplemental security income (SSI) payments were
received for the same period.
404.409 What is full retirement age?
404.410 How does SSA reduce my benefits when my entitlement begins
before full retirement age?
404.411 How are benefits reduced for age when a person is entitled to
two or more benefits?
404.412 After my benefits are reduced for age when and how will
adjustments to that reduction be made?
404.413 After my benefits are reduced for age what happens if there is
an increase in my primary insurance amount?
404.415 Deductions because of excess earnings; annual earnings test.
404.416 Amount of deduction because of excess earnings.
404.417 Deductions because of noncovered remunerative activity outside
the United States; 45 hour and 7-day work test.
404.418 ``Noncovered remunerative activity outside the United States,''
defined.
404.420 Persons deemed entitled to benefits based on an individual's
earnings record.
404.421 How are deductions made when a beneficiary fails to have a
child in his or her care?
404.422 Deductions because of refusal to accept rehabilitation
services.
404.423 Manner of making deductions.
404.424 Total amount of deductions where more than one deduction event
occurs in a month.
404.425 Total amount of deductions where deduction events occur in more
than 1 month.
404.428 Earnings in a taxable year.
404.429 Earnings; defined.
404.430 Excess earnings defined for taxable years ending after December
1972; monthly exempt amount defined.
404.434 Excess earnings; method of charging.
404.435 Excess earnings; months to which excess earnings cannot be
charged.
404.436 Excess earnings; months to which excess earnings cannot be
charged because individual is deemed not entitled to benefits.
404.437 Excess earnings; benefit rate subject to deductions because of
excess earnings.
404.439 Partial monthly benefits; excess earnings of the individual
charged against his benefits and the benefits of persons
entitled (or deemed entitled) to benefits on his earnings
record.
404.440 Partial monthly benefits; prorated share of partial payment
exceeds the benefit before deduction for excess earnings.
404.441 Partial monthly benefits; insured individual and another person
entitled (or deemed entitled) on the same earnings record both
have excess earnings.
404.446 Definition of ``substantial services'' and ``services''.
404.447 Evaluation of factors involved in substantial services test.
404.450 Required reports of work outside the United States or failure
to have care of a child.
404.451 Penalty deductions for failure to report within prescribed time
limit noncovered remunerative activity outside the United
States or not having care of a child.
404.452 Reports to Social Security Administration of earnings; wages;
net earnings from self-employment.
404.453 Penalty deductions for failure to report earnings timely.
404.454 Good cause for failure to make required reports.
404.455 Request by Social Security Administration for reports of
earnings and estimated earnings; effect of failure to comply
with request.
404.456 Current suspension of benefits because an individual works or
engages in self-employment.
[[Page 49]]
404.457 Deductions where taxes neither deducted from wages of certain
maritime employees nor paid.
404.458 Limiting deductions where total family benefits payable would
not be affected or would be only partly affected.
404.459 Penalty for false or misleading statements.
404.460 Nonpayment of monthly benefits of aliens outside the United
States.
404.461 Nonpayment of lump sum after death of alien outside United
States for more than 6 months.
404.462 Nonpayment of hospital and medical insurance benefits of alien
outside United States for more than 6 months.
404.463 Nonpayment of benefits of aliens outside the United States;
``foreign social insurance system,'' and ``treaty obligation''
exceptions defined.
404.464 Nonpayment of benefits where individual is deported;
prohibition against payment of lump sum based on deported
individual's earnings records.
404.465 Conviction for subversive activities; effect on monthly
benefits and entitlement to hospital insurance benefits.
404.466 Conviction for subversive activities; effect on enrollment for
supplementary medical insurance benefits.
404.467 Nonpayment of benefits; individual entitled to disability
insurance benefits or childhood disability benefits based on
statutory blindness is engaging in substantial gainful
activity.
404.468 Nonpayment of benefits to prisoners.
404.469 Nonpayment of benefits where individual has not furnished or
applied for a Social Security number.
404.470 Nonpayment of disability benefits due to noncompliance with
rules regarding treatment for drug addiction or alcoholism.
404.480 Paying benefits in installments: Drug addiction or alcoholism.
Subpart F--Overpayments, Underpayments, Waiver of Adjustment or Recovery
of Overpayments, and Liability of a Certifying Officer
404.501 General applicability of section 204 of the Act.
404.502 Overpayments.
404.502a Notice of right to waiver consideration.
404.503 Underpayments.
404.504 Relation to provisions for reductions and increases.
404.505 Relationship to provisions requiring deductions.
404.506 When waiver may be applied and how to process the request.
404.507 Fault.
404.508 Defeat the purpose of Title II.
404.509 Against equity and good conscience; defined.
404.510 When an individual is ``without fault'' in a deduction
overpayment.
404.510a When an individual is ``without fault'' in an entitlement
overpayment.
404.511 When an individual is at ``fault'' in a deduction overpayment.
404.512 When adjustment or recovery of an overpayment will be waived.
404.513 Liability of a certifying officer.
404.515 Collection and compromise of claims for overpayment.
404.520 Referral of overpayments to the Department of the Treasury for
tax refund offset--General.
404.521 Notice to overpaid individual.
404.522 Review within SSA that an overpayment is past due and legally
enforceable.
404.523 Findings by SSA.
404.524 Review of our records related to the overpayment.
404.525 Suspension of offset.
404.526 Tax refund insufficient to cover amount of overpayment.
404.527 Additional methods for recovery of title II benefit
overpayments.
Subpart G--Filing of Applications and Other Forms
General Provisions
404.601 Introduction.
404.602 Definitions.
404.603 You must file an application to receive benefits.
Applications
404.610 What makes an application a claim for benefits.
404.611 Filing of application with Social Security Administration.
404.612 Who may sign an application.
404.613 Evidence of authority to sign an application for another.
404.614 When an application or other form is considered filed.
404.615 Claimant must be alive when an application is filed.
Effective Filing Period of Application
404.620 Filing before the first month you meet the requirements for
benefits.
404.621 What happens if I file after the first month I meet the
requirements for benefits?
404.622 Limiting an application.
404.623 Am I required to file for all benefits if I am eligible for
old-age and husband's or wife's benefits?
Filing Date Based on Written Statement
404.630 Use of date of written statement as filing date.
404.631 Statements filed with the Railroad Retirement Board.
404.632 Statements filed with a hospital.
[[Page 50]]
Deemed Filing Date Based on Misinformation
404.633 Deemed filing date in a case of misinformation.
Withdrawal of Application
404.640 Withdrawal of an application.
404.641 Cancellation of a request to withdraw.
Subpart H--Evidence
General
404.701 Introduction.
404.702 Definitions.
404.703 When evidence is needed.
404.704 Your responsibility for giving evidence.
404.705 Failure to give requested evidence.
404.706 Where to give evidence.
404.707 Original records or copies as evidence.
404.708 How we decide what is enough evidence.
404.709 Preferred evidence and other evidence.
Evidence of Age, Marriage, and Death
404.715 When evidence of age is needed.
404.716 Type of evidence of age to be given.
404.720 Evidence of a person's death.
404.721 Evidence to presume a person is dead.
404.722 Rebuttal of a presumption of death.
404.723 When evidence of marriage is required.
404.725 Evidence of a valid ceremonial marriage.
404.726 Evidence of common-law marriage.
404.727 Evidence of a deemed valid marriage.
404.728 Evidence a marriage has ended.
Evidence for Child's and Parent's Benefits
404.730 When evidence of a parent or child relationship is needed.
404.731 Evidence you are a natural parent or child.
404.732 Evidence you are a stepparent or stepchild.
404.733 Evidence you are the legally adopting parent or legally adopted
child.
404.734 Evidence you are an equitably adopted child.
404.735 Evidence you are the grandchild or stepgrandchild.
404.736 Evidence of a child's dependency.
404.745 Evidence of school attendance for child age 18 or older.
404.750 Evidence of a parent's support.
Other Evidence Requirements
404.760 Evidence of living in the same household with insured person.
404.762 Evidence of having a child in your care.
404.770 Evidence of where the insured person had a permanent home.
404.780 Evidence of ``good cause'' for exceeding time limits on
accepting proof of support or application for a lump-sum death
payment.
Subpart I--Records of Earnings
General Provisions
404.801 Introduction.
404.802 Definitions.
404.803 Conclusiveness of the record of your earnings.
Obtaining Earnings Information
404.810 How to obtain a statement of earnings and a benefit estimate
statement.
404.811 The statement of earnings and benefit estimates you requested.
404.812 Statement of earnings and benefit estimates sent without
request.
Correcting the Earnings Record
404.820 Filing a request for correction of the record of your earnings.
404.821 Correction of the record of your earnings before the time limit
ends.
404.822 Correction of the record of your earnings after the time limit
ends.
404.823 Correction of the record of your earnings for work in the
employ of the United States.
Notice of Removal or Reduction of an Entry of Earnings
404.830 Notice of removal or reduction of your wages.
404.831 Notice of removal or reduction of your self-employment income.
Subpart J--Determinations, Administrative Review Process, and Reopening
of Determinations and Decisions
Introduction, Definitions, and Initial Determinations
404.900 Introduction.
404.901 Definitions.
404.902 Administrative actions that are initial determinations.
404.903 Administrative actions that are not initial determinations.
404.904 Notice of the initial determination.
404.905 Effect of an initial determination.
404.906 Testing modifications to the disability determination
procedures.
Reconsideration
404.907 Reconsideration--general.
404.908 Parties to a reconsideration.
404.909 How to request reconsideration.
[[Page 51]]
404.911 Good cause for missing the deadline to request review.
404.913 Reconsideration procedures.
404.914 Disability hearing--general.
404.915 Disability hearing--disability hearing officers.
404.916 Disability hearing--procedures.
404.917 Disability hearing--disability hearing officer's reconsidered
determination.
404.918 Disability hearing--review of the disability hearing officer's
reconsidered determination before it is issued.
404.919 Notice of another person's request for reconsideration.
404.920 Reconsidered determination.
404.921 Effect of a reconsidered determination.
404.922 Notice of a reconsidered determination.
Expedited Appeals Process
404.923 Expedited appeals process--general.
404.924 When the expedited appeals process may be used.
404.925 How to request expedited appeals process.
404.926 Agreement in expedited appeals process.
404.927 Effect of expedited appeals process agreement.
404.928 Expedited appeals process request that does not result in
agreement.
Hearing Before an Administrative Law Judge
404.929 Hearing before an administrative law judge--general.
404.930 Availability of a hearing before an administrative law judge.
404.932 Parties to a hearing before an administrative law judge.
404.933 How to request a hearing before an administrative law judge.
404.935 Submitting evidence prior to a hearing before an administrative
law judge.
404.936 Time and place for a hearing before an administrative law
judge.
404.938 Notice of a hearing before an administrative law judge.
404.939 Objections to the issues.
404.940 Disqualification of the administrative law judge.
404.941 Prehearing case review.
404.942 Prehearing proceedings and decisions by attorney advisors.
404.943 Responsibilities of the adjudication officer.
Administrative Law Judge Hearing Procedures
404.944 Administrative law judge hearing procedures--general.
404.946 Issues before an administrative law judge.
404.948 Deciding a case without an oral hearing before an
administrative law judge.
404.949 Presenting written statements and oral arguments.
404.950 Presenting evidence at a hearing before an administrative law
judge.
404.951 When a record of a hearing before an administrative law judge
is made.
404.952 Consolidated hearing before an administrative law judge.
404.953 The decision of an administrative law judge.
404.955 The effect of an administrative law judge's decision.
404.956 Removal of a hearing request from an administrative law judge
to the Appeals Council.
404.957 Dismissal of a request for a hearing before an administrative
law judge.
404.958 Notice of dismissal of a request for a hearing before an
administrative law judge.
404.959 Effect of dismissal of a request for a hearing before an
administrative law judge.
404.960 Vacating a dismissal of a request for a hearing before an
administrative law judge.
404.961 Prehearing and posthearing conferences.
404.965 [Reserved]
Appeals Council Review
404.966 Testing elimination of the request for Appeals Council review.
404.967 Appeals Council review--general.
404.968 How to request Appeals Council review.
404.969 Appeals Council initiates review.
404.970 Cases the Appeals Council will review.
404.971 Dismissal by Appeals Council.
404.972 Effect of dismissal of request for Appeals Council review.
404.973 Notice of Appeals Council review.
404.974 Obtaining evidence from Appeals Council.
404.975 Filing briefs with the Appeals Council.
404.976 Procedures before Appeals Council on review.
404.977 Case remanded by Appeals Council.
404.979 Decision of Appeals Council.
404.981 Effect of Appeals Council's decision or denial of review.
404.982 Extension of time to file action in Federal district court.
Court Remand Cases
404.983 Case remanded by a Federal court.
404.984 Appeals Council review of administrative law judge decision in
a case remanded by a Federal court.
404.985 Application of circuit court law.
[[Page 52]]
Reopening and Revising Determinations and Decisions
404.987 Reopening and revising determinations and decisions.
404.988 Conditions for reopening.
404.989 Good cause for reopening.
404.990 Finality of determinations and decisions on revision of an
earnings record.
404.991 Finality of determinations and decisions to suspend benefit
payments for entire taxable year because of earnings.
404.991a Late completion of timely investigation.
404.992 Notice of revised determination or decision.
404.993 Effect of revised determination or decision.
404.994 Time and place to request a hearing on revised determination or
decision.
404.995 Finality of findings when later claim is filed on same earnings
record.
404.996 Increase in future benefits where time period for reopening
expires.
Payment of Certain Travel Expenses
404.999a Payment of certain travel expenses--general.
404.999b Who may be reimbursed.
404.999c What travel expenses are reimbursable.
404.999d When and how to claim reimbursement.
Subpart K--Employment, Wages, Self-Employment, and Self-Employment
Income
404.1001 Introduction.
404.1002 Definitions.
Employment
404.1003 Employment.
404.1004 What work is covered as employment.
404.1005 Who is an employee.
404.1006 Corporation officer.
404.1007 Common-law employee.
404.1008 Agent-driver or commission-driver, full-time life insurance
salesman, home worker, or traveling or city salesman.
404.1009 Who is an employer.
404.1010 Farm crew leader as employer.
Work Excluded From Employment
404.1012 Work excluded from employment.
404.1013 Included-excluded rule.
404.1014 Domestic service by a student for a local college club,
fraternity or sorority.
404.1015 Family services.
404.1016 Foreign agricultural workers.
404.1017 Sharefarmers.
404.1018 Work by civilians for the United States Government or its
instrumentalities--wages paid after 1983.
404.1018a Work by civilians for the United States Government or its
instrumentalities--remuneration paid prior to 1984.
404.1018b Medicare qualified government employment.
404.1019 Work as a member of a uniformed service of the United States.
404.1020 Work for States and their political subdivisions and
instrumentalities.
404.1021 Work for the District of Columbia.
404.1022 American Samoa or Guam.
404.1023 Ministers of churches and members of religious orders.
404.1024 Election of coverage by religious orders.
404.1025 Work for religious, charitable, educational, or certain other
organizations exempt from income tax.
404.1026 Work for a church or qualified church-controlled organization.
404.1027 Railroad work.
404.1028 Student working for a school, college, or university.
404.1029 Student nurses.
404.1030 Delivery and distribution or sale of newspapers, shopping
news, and magazines.
404.1031 Fishing.
404.1032 Work for a foreign government.
404.1033 Work for a wholly owned instrumentality of a foreign
government.
404.1034 Work for an international organization.
404.1035 Work for a communist organization.
404.1036 Certain nonresident aliens.
404.1037 Work on or in connection with a non-American vessel or
aircraft.
404.1038 Domestic employees under age 18.
Exemption From Social Security by Reason of Religous Belief
404.1039 Employers (including partnerships) and employees who are both
members of certain religious groups opposed to insurance.
Wages
404.1041 Wages.
404.1042 Wages when paid and received.
404.1043 Facilities or privileges--meals and lodging.
404.1044 Vacation pay.
404.1045 Employee expenses.
404.1046 Pay for work by certain members of religious orders.
404.1047 Annual wage limitation.
404.1048 Contribution and benefit base after 1992.
404.1049 Payments under an employer plan or system.
404.1050 Retirement payments.
404.1051 Payments on account of sickness or accident disability, or
related medical or hospitalization expenses.
404.1052 Payments from or to certain tax-exempt trusts or payments
under or into certain annuity plans.
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404.1053 ``Qualified benefits'' under a cafeteria plan.
404.1054 Payments by an employer of employee's tax or employee's
contribution under State law.
404.1055 Payments for agricultural labor.
404.1056 Explanation of agricultural labor.
404.1057 Domestic service in the employer's home.
404.1058 Special situations.
404.1059 Deemed wages for certain individuals interned during World War
II.
404.1060 [Reserved]
Self-Employment
404.1065 Self-employment coverage.
404.1066 Trade or business in general.
404.1068 Employees who are considered self-employed.
404.1069 Real estate agents and direct sellers.
404.1070 Christian Science practitioners.
404.1071 Ministers and members of religious orders.
404.1073 Public office.
404.1074 Farm crew leader who is self-employed.
404.1075 Members of certain religious groups opposed to insurance.
404.1077 Individuals under railroad retirement system.
Self-Employment Income
404.1080 Net earnings from self-employment.
404.1081 General rules for figuring net earnings from self-employment.
404.1082 Rentals from real estate; material participation.
404.1083 Dividends and interest.
404.1084 Gain or loss from disposition of property; capital assets;
timber, coal, and iron ore; involuntary conversion.
404.1085 Net operating loss deduction.
404.1086 Community income.
404.1087 Figuring partner's net earnings from self-employment for
taxable year which ends as a result of death.
404.1088 Retirement payment to retired partners.
404.1089 Figuring net earnings for residents and nonresidents of Puerto
Rico.
404.1090 Personal exemption deduction.
404.1091 Figuring net earnings for ministers and members of religious
orders.
404.1092 Figuring net earnings for U.S. citizens or residents living
outside the United States.
404.1093 Possession of the United States.
404.1094 Options available for figuring net earnings from self-
employment.
404.1095 Agricultural trade or business.
404.1096 Self-employment income.
Subpart L [Reserved]
Subpart M--Coverage of Employees of State and Local Governments
General
404.1200 General.
404.1201 Scope of this subpart regarding coverage and wage reports and
adjustments.
404.1202 Definitions.
404.1203 Evidence--for wages paid prior to 1987.
404.1204 Designating officials to act on behalf of the State.
What Groups of Employees May Be Covered
404.1205 Absolute coverage groups.
404.1206 Retirement system coverage groups.
404.1207 Divided retirement system coverage groups.
404.1208 Ineligible employees.
404.1209 Mandatorily excluded services.
404.1210 Optionally excluded services.
404.1211 Interstate instrumentalities.
404.1212 Police officers and firefighters.
How Coverage Under Agreements Is Obtained and Continues
404.1214 Agreement for coverage.
404.1215 Modification of agreement.
404.1216 Modification of agreement to correct an error.
404.1217 Continuation of coverage.
404.1218 Resumption of coverage.
404.1219 Dissolution of political subdivision.
How To Identify Covered Employees
404.1220 Identification numbers.
What Records of Coverage Must Be Kept
404.1225 Records--for wages paid prior to 1987.
Review of Compliance by State With Its Agreement
404.1230 Onsite review program.
404.1231 Scope of review.
404.1232 Conduct of review.
404.1234 Reports of review's findings.
How To Report Wages and Contributions--for Wages Paid Prior to 1987
404.1237 Wage reports and contribution returns--general--for wages paid
prior to 1987.
404.1239 Wage reports for employees performing services in more than
one coverage group--for wages paid prior to 1987.
404.1242 Back pay.
404.1243 Use of reporting forms--for wages paid prior to 1987.
404.1247 When to report wages--for wages paid prior to 1987.
404.1249 When and where to make deposits of contributions and to file
contribution
[[Page 54]]
returns and wage reports--for wages paid prior to 1987.
404.1251 Final reports--for wages paid prior to 1987.
What Is a State's Liability for Contributions--for Wages Paid Prior to
1987
404.1255 State's liability for contributions--for wages paid prior to
1987.
404.1256 Limitation on State's liability for contributions for multiple
employment situations--for wages paid prior to 1987.
Figuring the Amount of the State's Contributions--for Wages Paid Prior
to 1987
404.1260 Amount of contributions--for wages paid prior to 1987.
404.1262 Manner of payment of contributions by State--for wages paid
prior to 1987.
404.1263 When fractional part of a cent may be disregarded--for wages
paid prior to 1987.
If a State Fails To Make Timely Payments--for Wages Paid Prior to 1987
404.1265 Addition of interest to contributions--for wages paid prior to
1987.
404.1267 Failure to make timely payments--for wages paid prior to 1987.
How Errors in Reports and Contributions Are Adjusted--for Wages Paid
Prior to 1987
404.1270 Adjustments in general--for wages paid prior to 1987.
404.1271 Adjustment of overpayment of contributions--for wages paid
prior to 1987.
404.1272 Refund or recomputation of overpayments which are not
adjustable--for wages paid prior to 1987.
404.1275 Adjustment of employee contributions--for wages paid prior to
1987.
404.1276 Reports and payments erroneously made to Internal Revenue
Service-transfer of funds--for wages paid prior to 1987.
How Overpayments of Contributions Are Credited or Refunded--for Wages
Paid Prior to 1987
404.1280 Allowance of credits or refunds--for wages paid prior to 1987.
404.1281 Credits or refunds for periods of time during which no
liability exists--for wages paid prior to 1987.
404.1282 Time limitations on credits or refunds--for wages paid prior
to 1987.
404.1283 Exceptions to the time limitations on credits or refunds--for
wages paid prior to 1987.
404.1284 Offsetting underpayments against overpayments--for wages paid
prior to 1987.
How Assessments for Underpayments of Contributions Are Made--for Wages
Paid Prior to 1987
404.1285 Assessments of amounts due--for wages paid prior to 1987.
404.1286 Time limitations on assessments--for wages paid prior to 1987.
404.1287 Exceptions to the time limitations on assessments--for wages
paid prior to 1987.
404.1289 Payment after expiration of time limitation for assessment--
for wages paid prior to 1987.
Secretary's Review of Decisions on Credits, Refunds, or Assessments--for
Wages Paid Prior to 1987
404.1290 Review of decisions by the Secretary--for wages paid prior to
1987.
404.1291 Reconsideration--for wages paid prior to 1987.
404.1292 How to request review--for wages paid prior to 1987.
404.1293 Time for filing request for review--for wages paid prior to
1987.
404.1294 Notification to State after reconsideration--for wages paid
prior to 1987.
404.1295 Commissioner's review--for wages paid prior to 1987.
404.1296 Commissioner's notification to the State--for wages paid prior
to 1987.
How a State May Seek Court Review of Secretary's Decision--for Wages
Paid Prior to 1987
404.1297 Review by court--for wages paid prior to 1987.
404.1298 Time for filing civil action--for wages paid prior to 1987.
404.1299 Final judgments--for wages paid prior to 1987.
Subpart N--Wage Credits for Veterans and Members of the Uniformed
Services
General
404.1301 Introduction.
404.1302 Definitions.
World War II Veterans
404.1310 Who is a World War II veteran.
404.1311 Ninety-day active service requirement for World War II
veterans.
404.1312 World War II service included.
404.1313 World War II service excluded.
Post-World War II Veterans
404.1320 Who is a post-World War II veteran.
404.1321 Ninety-day active service requirement for post-World War II
veterans.
[[Page 55]]
404.1322 Post-World War II service included.
404.1323 Post-World War II service excluded.
Separation From Active Service
404.1325 Separation from active service under conditions other than
dishonorable.
Members of the Uniformed Services
404.1330 Who is a member of a uniformed service.
Amounts of Wage Credits and Limits on Their Use
404.1340 Wage credits for World War II and post-World War II veterans.
404.1341 Wage credits for a member of a uniformed service.
404.1342 Limits on granting World War II and post-World War II wage
credits.
404.1343 When the limits on granting World War II and post-World War II
wage credits do not apply.
Deemed Insured Status for World War II Veterans
404.1350 Deemed insured status.
404.1351 When deemed insured status does not apply.
404.1352 Benefits and payments based on deemed insured status.
Effect of Other Benefits on Payment of Social Security Benefits and
Payments
404.1360 Veterans Administration pension or compensation payable.
404.1361 Federal benefit payable other than by Veterans Administration.
404.1362 Treatment of social security benefits or payments where
Veterans Administration pension or compensation payable.
404.1363 Treatment of social security benefits or payments where
Federal benefit payable other than by Veterans Administration.
Evidence of Active Service and Membership in a Uniformed Service
404.1370 Evidence of active service and separation from active service.
404.1371 Evidence of membership in a uniformed service during the years
1957 through 1967.
Subpart O--Interrelationship of Old-Age, Survivors and Disability
Insurance Program With the Railroad Retirement Program
404.1401 General relationship of Railroad Retirement Act with the old-
age, survivors and disability insurance program of the Social
Security Act.
404.1402 When services in the railroad industry are covered.
404.1403 Definition of ``years of service''.
404.1404 Effective date of coverage of railroad services under the act.
404.1405 When the provisions of Sec. 404.1402 do not apply.
404.1406 Eligibility to railroad retirement benefits as a bar to
payment of social security benefits.
404.1407 When railroad retirement benefits do not bar payment of social
security benefits.
404.1408 Compensation to be treated as wages.
404.1409 Purposes of using compensation.
404.1410 Presumption on basis of certified compensation record.
404.1412 Compensation quarters of coverage.
404.1413 Certification of payment to Railroad Retirement Board.
Subpart P--Determining Disability and Blindness
General
404.1501 Scope of subpart.
404.1502 General definitions and terms for this subpart.
Determinations
404.1503 Who makes disability and blindness determinations.
404.1503a Program integrity.
404.1504 Determinations by other organizations and agencies.
Definition of Disability
404.1505 Basic definition of disability.
404.1506 When we will not consider your impairment.
404.1508 What is needed to show an impairment.
404.1509 How long the impairment must last.
404.1510 Meaning of substantial gainful activity.
404.1511 Definition of disabling impairment.
Evidence
404.1512 Evidence of your impairment.
404.1513 Medical and other evidence of your impairment(s).
404.1514 When we will purchase existing evidence.
404.1515 Where and how to submit evidence.
404.1516 If you fail to submit medical and other evidence.
404.1517 Consultative examination at our expense.
404.1518 If you do not appear at a consultative examination.
[[Page 56]]
Standards To Be Used in Determining When a Consultative Examination Will
Be Obtained in Connection With Disability Determinations
404.1519 The consultative examination.
404.1519a When we will purchase a consultative examination and how we
will use it.
404.1519b When we will not purchase a consultative examination.
Standards for the Type of Referral and for Report Content
404.1519f Type of purchased examinations.
404.1519g Who we will select to perform a consultative examination.
404.1519h Your treating source.
404.1519i Other sources for consultative examinations.
404.1519j Objections to the medical source designated to perform the
consultative examination.
404.1519k Purchase of medical examinations, laboratory tests, and other
services.
404.1519m Diagnostic tests or procedures.
404.1519n Informing the medical source of examination scheduling,
report content, and signature requirements.
404.1519o When a properly signed consultative examination report has
not been received.
404.1519p Reviewing reports of consultative examinations.
404.1519q Conflict of interest.
Authorizing and Monitoring the Referral Process
404.1519s Authorizing and monitoring the consultative examination.
Procedures To Monitor the Consultative Examination
404.1519t Consultative examination oversight.
Evaluation of Disability
404.1520 Evaluation of disability in general.
404.1520a Evaluation of mental impairments.
404.1521 What we mean by an impairment(s) that is not severe.
404.1522 When you have two or more unrelated impairments--initial
claims.
404.1523 Multiple impairments.
Medical Considerations
404.1525 Listing of Impairments in appendix 1.
404.1526 Medical equivalence.
404.1527 Evaluating opinion evidence.
404.1528 Symptoms, signs, and laboratory findings.
404.1529 How we evaluate symptoms, including pain.
404.1530 Need to follow prescribed treatment.
404.1535 How we will determine whether your drug addiction or
alcoholism is a contributing factor material to the
determination of disability.
404.1536 Treatment required for individuals whose drug addiction or
alcoholism is a contributing factor material to the
determination of disability.
404.1537 What we mean by appropriate treatment.
404.1538 What we mean by approved institutions or facilities.
404.1539 How we consider whether treatment is available.
404.1540 Evaluating compliance with the treatment requirements.
404.1541 Establishment and use of referral and monitoring agencies.
Residual Functional Capacity
404.1545 Your residual functional capacity.
404.1546 Responsibility for assessing and determining residual
functional capacity.
Vocational Considerations
404.1560 When your vocational background will be considered.
404.1561 Your ability to do work depends upon your residual functional
capacity.
404.1562 If you have done only arduous unskilled physical labor.
404.1563 Your age as a vocational factor.
404.1564 Your education as a vocational factor.
404.1565 Your work experience as a vocational factor.
404.1566 Work which exists in the national economy.
404.1567 Physical exertion requirements.
404.1568 Skill requirements.
404.1569 Listing of Medical-Vocational Guidelines in appendix 2.
404.1569a Exertional and nonexertional limitations.
Substantial Gainful Activity
404.1571 General.
404.1572 What we mean by substantial gainful activity.
404.1573 General information about work activity.
404.1574 Evaluation guides if you are an employee.
404.1574a When and how we will average your earnings.
404.1575 Evaluation guides if you are self-employed.
404.1576 Impairment-related work expenses.
Widows, Widowers, and Surviving Divorced Spouses
404.1577 Disability defined for widows, widowers, and surviving
divorced spouses for
[[Page 57]]
monthly benefits payable for months prior to January 1991.
404.1578 How we determine disability for widows, widowers, and
surviving divorced spouses for monthly benefits payable for
months prior to January 1991.
404.1579 How we will determine whether your disability continues or
ends.
Blindness
404.1581 Meaning of blindness as defined in the law.
404.1582 A period of disability based on blindness.
404.1583 How we determine disability for blind persons who are age 55
or older.
404.1584 Evaluation of work activity of blind people.
404.1585 Trial work period for persons age 55 or older who are blind.
404.1586 Why and when we will stop your cash benefits.
404.1587 Circumstances under which we may suspend your benefits before
we make a determination.
Continuing or Stopping Disability
404.1588 Your responsibility to tell us of events that may change your
disability status.
404.1589 We may conduct a review to find out whether you continue to be
disabled.
404.1590 When and how often we will conduct a continuing disability
review.
404.1591 If your medical recovery was expected and you returned to
work.
404.1592 The trial work period.
404.1592a The reentitlement period.
404.1593 Medical evidence in continuing disability review cases.
404.1594 How we will determine whether your disability continues or
ends.
404.1595 When we determine that you are not now disabled.
404.1596 Circumstances under which we may suspend your benefits before
we make a determination.
404.1597 After we make a determination that you are not now disabled.
404.1597a Continued benefits pending appeal of a medical cessation
determination.
404.1598 If you become disabled by another impairment(s).
404.1599 Work incentive experiments and rehabilitation demonstration
projects in the disability program.
Appendix 1 to Subpart P--Listing of Impairments
Appendix 2 to Subpart P--Medical-Vocational Guidelines
Subpart Q--Determinations of Disability
General Provisions
404.1601 Purpose and scope.
404.1602 Definitions.
404.1603 Basic responsibilities for us and the State.
Responsibilities for Performing the Disability Determination Function
404.1610 How a State notifies us that it wishes to perform the
disability determination function.
404.1611 How we notify a State whether it may perform the disability
determination function.
404.1613 Disability determinations the State makes.
404.1614 Responsibilities for obtaining evidence to make disability
determinations.
404.1615 Making disability determinations.
404.1616 Medical or psychological consultants.
404.1617 Reasonable efforts to obtain review by a qualified
psychiatrist or psychologist.
404.1618 Notifying claimants of the disability determination.
Administrative Responsibilities and Requirements
404.1620 General administrative requirements.
404.1621 Personnel.
404.1622 Training.
404.1623 Facilities.
404.1624 Medical and other purchased services.
404.1625 Records and reports.
404.1626 Fiscal.
404.1627 Audits.
404.1628 Property.
404.1629 Participation in research and demonstration projects.
404.1630 Coordination with other agencies.
404.1631 Confidentiality of information and records.
404.1632 Other Federal laws and regulations.
404.1633 Policies and operating instructions.
Performance Standards
404.1640 General.
404.1641 Standards of performance.
404.1642 Processing time standards.
404.1643 Performance accuracy standard.
404.1644 How and when we determine whether the processing time
standards are met.
404.1645 How and when we determine whether the performance accuracy
standard is met.
404.1650 Action we will take if a State agency does not meet the
standards.
Performance Monitoring and Support
404.1660 How we will monitor.
404.1661 When we will provide performance support.
404.1662 What support we will provide.
Substantial Failure
404.1670 General.
[[Page 58]]
404.1671 Good cause for not following the Act, our regulations, or
other written guidelines.
404.1675 Finding of substantial failure.
Hearings and Appeals
404.1680 Notice of right to hearing on proposed finding of substantial
failure.
404.1681 Disputes on matters other than substantial failure.
404.1682 Who conducts the hearings.
404.1683 Hearings and appeals process.
Assumption of Disability Determination Function
404.1690 Assumption when we make a finding of substantial failure.
404.1691 Assumption when State no longer wishes to perform the
disability determination function.
404.1692 Protection of State employees.
404.1693 Limitation on State expenditures after notice.
404.1694 Final accounting by the State.
Subpart R--Representation of Parties
404.1700 Introduction.
404.1703 Definitions.
404.1705 Who may be your representative.
404.1706 Notification of options for obtaining attorney representation.
404.1707 Appointing a representative.
404.1710 Authority of a representative.
404.1715 Notice or request to a representative.
404.1720 Fee for a representative's services.
404.1725 Request for approval of a fee.
404.1728 Proceedings before a State or Federal court.
404.1730 Payment of fees.
404.1735 Services in a proceeding under title II of the Act.
404.1740 Rules of conduct and standards of responsibility for
representatives.
404.1745 Violations of our requirements, rules, or standards.
404.1750 Notice of charges against a representative.
404.1755 Withdrawing charges against a representative.
404.1765 Hearing on charges.
404.1770 Decision by hearing officer.
404.1775 Requesting review of the hearing officer's decision.
404.1776 Assignment of request for review of the hearing officer's
decision.
404.1780 Appeals Council's review of hearing officer's decision.
404.1785 Evidence permitted on review.
404.1790 Appeals Council's decision.
404.1795 When the Appeals Council will dismiss a request for review.
404.1797 Reinstatement after suspension--period of suspension expired.
404.1799 Reinstatement after suspension or disqualification--period of
suspension not expired.
Subpart S--Payment Procedures
404.1800 Introduction.
404.1805 Paying benefits.
404.1807 Monthly payment day.
404.1810 Expediting benefit payments.
404.1815 Withholding certification or payments.
404.1820 Transfer or assignment of payments.
404.1825 Joint payments to a family.
Subpart T--Totalization Agreements
General Provisions
404.1901 Introduction.
404.1902 Definitions.
404.1903 Negotiating totalization agreements.
404.1904 Effective date of a totalization agreement.
404.1905 Termination of agreements.
Benefit Provisions
404.1908 Crediting foreign periods of coverage.
404.1910 Person qualifies under more than one totalization agreement.
404.1911 Effects of a totalization agreement on entitlement to hospital
insurance benefits.
Coverage Provisions
404.1913 Precluding dual coverage.
404.1914 Certificate of coverage.
404.1915 Payment of contributions.
Computation Provisions
404.1918 How benefits are computed.
404.1919 How benefits are recomputed.
404.1920 Supplementing the U.S. benefit if the total amount of the
combined benefits is less than the U.S. minimum benefit.
404.1921 Benefits of less than $1 due.
Other Provisions
404.1925 Applications.
404.1926 Evidence.
404.1927 Appeals.
404.1928 Effect of the alien non-payment provision.
404.1929 Overpayments.
404.1930 Disclosure of information.
Subpart U--Representative Payment
404.2001 Introduction.
404.2010 When payment will be made to a representative payee.
[[Page 59]]
404.2015 Information considered in determining whether to make
representative payments.
404.2020 Information considered in selecting a representative payee.
404.2021 Order of preference in selecting a representative payee.
404.2025 Information to be submitted by a representative payee.
404.2030 Advance notice of the determination to make representative
payment.
404.2035 Responsibilities of a representative payee.
404.2040 Use of benefit payments.
404.2040a Compensation for qualified organizations serving as
representative payees.
404.2041 Liability for misuse of benefit payments.
404.2045 Conservation and investment of benefit payments.
404.2050 When a new representative payee will be selected.
404.2055 When representative payment will be stopped.
404.2060 Transfer of accumulated benefit payments.
404.2065 Accounting for benefit payments.
Subpart V--Payments for Vocational Rehabilitation Services
General Provisions
404.2101 General.
404.2102 Purpose and scope.
404.2103 Definitions.
404.2104 Participation by State VR agencies or alternate participants.
404.2106 Basic qualifications for alternate participants.
Payment Provisions
404.2108 Requirements for payment.
404.2109 Responsibility for making payment decisions.
404.2110 What we mean by ``SGA'' and by ``a continuous period of 9
months''.
404.2111 Criteria for determining when VR services will be considered
to have contributed to a continuous period of 9 months.
404.2112 Payment for VR services in a case where an individual
continues to receive disability payments based on
participation in an approved VR program.
404.2113 Payment for VR services in a case of VR refusal.
404.2114 Services for which payment may be made.
404.2115 When services must have been provided.
404.2116 When claims for payment for VR services must be made (filing
deadlines).
404.2117 What costs will be paid.
Administrative Provisions
404.2118 Applicability of these provisions to alternate participants.
404.2119 Method of payment.
404.2120 Audits.
404.2121 Validation reviews.
404.2122 Confidentiality of information and records.
404.2123 Other Federal laws and regulations.
404.2127 Resolution of disputes.
Subpart A--Introduction, General Provisions and Definitions
Authority: Secs. 203, 205(a), 216(j), and 702(a)(5) of the Social
Security Act (42 U.S.C. 403, 405(a), 416(j), and 902(a)(5)).
Sec. 404.1 Introduction.
The regulations in this part 404 (Regulations No. 4 of the Social
Security Administration) relate to the provisions of title II of the
Social Security Act as amended on August 28, 1950, and as further
amended thereafter. The regulations in this part are divided into 22
subparts:
(a) Subpart A contains provisions relating to general definitions
and use of terms.
(b) Subpart B relates to quarters of coverage and insured status
requirements.
(c) Subpart C relates to the computation and recomputation of the
primary insurance amount.
(d) Subpart D relates to the requirements for entitlement to monthly
benefits and to the lump-sum death payment duration of entitlement and
benefit rates.
(e) Subpart E contains provisions relating to the reduction and
increase of insurance benefits and to deductions from benefits and lump-
sum death payments.
(f) Subpart F relates to overpayments, underpayments, waiver of
adjustment or recovery of overpayments and liability of certifying
officers.
(g) Subpart G relates to filing of applications and other forms.
(h) Subpart H relates to evidentiary requirements for establishing
an initial and continuing right to monthly benefits and for establishing
a right to lump-sum death payment. (Evidentiary requirements relating to
disability are contained in subpart P.)
[[Page 60]]
(i) Subpart I relates to maintenance and revision of records of
wages and self-employment income.
(j) Subpart J relates to initial determinations, the administrative
review process, and reopening of determinations and decisions.
(k) Subpart K relates to employment, wages, self-employment and
self-employment income.
(l) Subpart L is reserved.
(m) Subpart M relates to coverage of employees of State and local
Governments.
(n) Subpart N relates to benefits in cases involving veterans.
(o) Subpart O relates to the interrelationship of the old-age,
survivors and disability insurance program with the railroad retirement
program.
(p) Subpart P relates to the determination of disability or
blindness.
(q) Subpart Q relates to standards, requirements and procedures for
States making determinations of disability for the Commissioner. It also
sets out the Commissioner's responsibilities in carrying out the
disability determination function.
(r) Subpart R relates to the provisions applicable to attorneys and
other individuals who represent applicants in connection with claims for
benefits.
(s) Subpart S relates to the payment of benefits to individuals who
are entitled to benefits.
(t) Subpart T relates to the negotiation and administration of
totalization agreements between the United States and foreign countries.
(u) Subpart U relates to the selection of a representative payee to
receive benefits on behalf of a beneficiary and to the duties and
responsibilities of a representative payee.
(v) Subpart V relates to payments to State vocational rehabilitative
agencies (or alternate participants) for vocational rehabilitation
services.
[26 FR 7054, Aug. 5, 1961; 26 FR 7760, Aug. 19, 1961, as amended at 27
FR 4513, May 11, 1962; 28 FR 14492, Dec. 31, 1963; 51 FR 11718, Apr. 7,
1986; 62 FR 38450, July 18, 1997]
Sec. 404.2 General definitions and use of terms.
(a) Terms relating to the Act and regulations. (1) The Act means the
Social Security Act, as amended (42 U.S.C. Chapter 7).
(2) Section means a section of the regulations in part 404 of this
chapter unless the context indicates otherwise.
(b) Commissioner; Appeals Council; Administrative Law Judge defined.
(1) Commissioner means the Commissioner of Social Security.
(2) Appeals Council means the Appeals Council of the Office of
Hearings and Appeals in the Social Security Administration or such
member or members thereof as may be designated by the Chairman.
(3) Administrative Law Judge means an Administrative Law Judge in
the Office of Hearings and Appeals in the Social Security
Administration.
(c) Miscellaneous. (1) Certify, when used in connection with the
duty imposed on the Commissioner by section 205(i) of the act, means
that action taken by the Administration in the form of a written
statement addressed to the Managing Trustee, setting forth the name and
address of the person to whom payment of a benefit or lump sum, or any
part thereof, is to be made, the amount to be paid, and the time at
which payment should be made.
(2) Benefit means an old-age insurance benefit, disability insurance
benefit, wife's insurance benefit, husband's insurance benefit, child's
insurance benefit, widow's insurance benefit, widower's insurance
benefit, mother's insurance benefit, father's insurance benefit,
parent's insurance benefit, or special payment at age 72 under title II
of the Act. (Lump sums, which are death payments under title II of the
Act, are excluded from the term benefit as defined in this part to
permit greater clarity in the regulations.)
(3) Lump sum means a lump-sum death payment under title II of the
act or any person's share of such a payment.
(4) Attainment of age. An individual attains a given age on the
first moment of the day preceding the anniversary of his birth
corresponding to such age.
(5) State, unless otherwise indicated, includes (i) the District of
Columbia, (ii) the Virgin Islands, (iii) the Commonwealth of Puerto Rico
effective
[[Page 61]]
January 1, 1951, (iv) Guam and American Samoa, effective September 13,
1960, generally, and for purposes of sections 210(a) and 211 of the act
effective after 1960 with respect to service performed after 1960, and
effective for taxable years beginning after 1960 with respect to
crediting net earnings from self-employment and self-employment income,
and (v) the Territories of Alaska and Hawaii prior to January 3, 1959,
and August 21, 1959, respectively when those territories acquired
statehood.
(6) United States, when used in a geographical sense, includes,
unless otherwise indicated, (i) the States, (ii) the Territories of
Alaska and Hawaii prior to January 3, 1959, and August 21, 1959,
respectively, when they acquired statehood, (iii) the District of
Columbia, (iv) the Virgin Islands, (v) the Commonwealth of Puerto Rico
effective January 1, 1951, and (vi) Guam and American Samoa, effective
September 13, 1960, generally, and for purposes of sections 210(a) and
211 of the act, effective after 1960 with respect to service performed
after 1960, and effective for taxable years beginning after 1960 with
respect to crediting net earnings from self-employment and self-
employment income.
(7) Masculine gender includes the feminine, unless otherwise
indicated.
(8) The terms defined in sections 209, 210, and 211 of the act shall
have the meanings therein assigned to them.
[26 FR 7055, Aug. 5, 1961; 26 FR 7760, Aug. 19, 1961, as amended at 28
FR 1037, Feb. 2, 1963; 28 FR 14492, Dec. 31, 1963; 29 FR 15509, Nov. 19,
1964; 41 FR 32886, Aug. 6, 1976; 51 FR 11718, Apr. 7, 1986; 61 FR 41330,
Aug. 8, 1996; 62 FR 38450, July 18, 1997]
Sec. 404.3 General provisions.
(a) Effect of cross references. The cross references in the
regulations in this part 404 to other portions of the regulations, when
the word see is used, are made only for convenience and shall be given
no legal effect.
(b) Periods of limitation ending on nonwork days. Pursuant to the
provisions of section 216(j) of the act, effective September 13, 1960,
where any provision of title II, or any provision of another law of the
United States (other than the Internal Revenue Code of 1954) relating to
or changing the effect of title II, or any regulation of the
Commissioner issued under title II, 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 title or is necessary to
establish or protect any rights under this title, 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 nonwork day 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 nonwork day for Federal employees either by
statute or Executive Order. For purposes of this paragraph, the day on
which a period ends shall include the final day of any extended period
where such extension is authorized by law or by the Commissioner
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 an application for such benefits is filed pursuant to
Sec. 404.621, or to periods during which an application for benefits may
be accepted as such pursuant to Sec. 404.620.
[26 FR 7055, Aug. 5, 1961, as amended at 29 FR 15509, Nov. 19, 1964; 51
FR 11718, Apr. 7, 1986; 61 FR 41330, Aug. 8, 1996; 62 FR 38450, July 18,
1997]
Subpart B--Insured Status and Quarters of Coverage
Authority: Secs. 205(a), 212, 213, 214, 216, 217, 223, and 702(a)(5)
of the Social Security Act (42 U.S.C. 405(a), 412, 413, 414, 416, 417,
423, and 902(a)(5)).
Source: 45 FR 25384, Apr. 15, 1980, unless otherwise noted.
General
Sec. 404.101 Introduction.
(a) Insured status. This subpart explains what we mean when we say
that a person has insured status under the social security program. It
also describes how a person may become fully insured, currently insured
or insured for disability benefits. Your insured
[[Page 62]]
status is a basic factor in determining if you are entitled to old-age
or disability insurance benefits or to a period of disability. It is
also a basic factor in determining if dependents' or survivors'
insurance benefits or a lump-sum death payment are payable based on your
earnings record. If you are neither fully nor currently insured, no
benefits are payable based on your earnings. (Subpart D of this part
describes these benefits and the kind of insured status required for
each.) In Secs. 404.110 through 404.120 we tell how we determine if you
are fully or currently insured. The rules for determining if you are
insured for purposes of establishing a period of disability or becoming
entitled to disability insurance benefits are in Secs. 404.130 through
404.133. Whether you have the required insured status depends on the
number of quarters of coverage (QCs) you have acquired.
(b) QCs. This subpart also sets out our rules on crediting you with
QCs. QCs are used in determining insured status. In general, you are
credited with QCs based on the wages you are paid and the self-
employment income you derive during certain periods. (See subpart K of
this part for a definition of wages and self-employment income.) Our
rules on how and when you acquire a QC are contained in Secs. 404.140
through 404.146.
Sec. 404.102 Definitions.
For the purpose of this subpart--
Act means the Social Security Act, as amended.
Age means how many years old you are. You reach a particular age on
the day before your birthday. For example, if your sixty-second birthday
is on July 1, 1979, you became age 62 on June 30, 1979.
Quarter or calendar quarter means a period of three calendar months
ending March 31, June 30, September 30, or December 31 of any year.
We, our, or us means the Social Security Administration.
You or your means the worker whose insured status is being
considered.
Fully Insured Status
Sec. 404.110 How we determine fully insured status.
(a) General. We describe how we determine the number of quarters of
coverage (QCs) you need to be fully insured in paragraphs (b), (c), and
(d) of this section. The table in Sec. 404.115 may be used to determine
the number of QCs you need to be fully insured under paragraph (b) of
this section. We consider certain World War II veterans to have died
fully insured (see Sec. 404.111). We also consider certain employees of
private nonprofit organizations to be fully insured if they meet special
requirements (see Sec. 404.112).
(b) How many QCs you need to be fully insured. (1) You need at least
6 QCs but not more than 40 QCs to be fully insured. A person who died
before 1951 with at least 6 QCs is fully insured.
(2) You are fully insured for old-age insurance benefits if you have
one QC (whenever acquired) for each calendar year elapsing after 1950
or, if later, after the year in which you became age 21, and before the
year you reach retirement age, that is, before--
(i) The year you become age 62, if you are a woman;
(ii) The year you become age 62, if you are a man who becomes age 62
after 1974;
(iii) The year 1975, if you are a man who became age 62 in 1973 or
1974; or
(iv) The year you became age 65, if you are a man who became age 62
before 1973.
(3) A person who is otherwise eligible for survivor's benefits and
who files an application will be entitled to benefits based on your
earnings if you die fully insured. You will be fully insured if you had
one QC (whenever acquired) for each calendar year elapsing after 1950
or, if later, after the year you became age 21, and before the earlier
of the following years:
(i) The year you die; or
(ii) The year you reach retirement age as shown in paragraph (b)(2)
of this section.
(c) How a period of disability affects the number of QCs you need.
In determining the number of elapsed years under paragraph (b) of this
section, we do not
[[Page 63]]
count as an elapsed year any year which is wholly or partly in a period
of disability we established for you. For example, if we established a
period of disability for you from December 5, 1975 through January 31,
1977, the three years, 1975, 1976 and 1977, would not be counted as
elapsed years.
(d) How we credit QCs for fully insured status based on your total
wages before 1951--(1) General. For purposes of paragraph (b) of this
section, we may use the following rules in crediting QCs based on your
wages before 1951 instead of the rule in Sec. 404.141(b)(1).
(i) We may consider you to have one QC for each $400 of your total
wages before 1951, as defined in paragraph (d)(2) of this section, if
you have at least 7 elapsed years as determined under paragraph (b)(2)
or (b)(3) of this section; and the number of QCs determined under this
paragraph plus the number of QCs credited to you for periods after 1950
make you fully insured.
(ii) If you file an application in June 1992 or later and you are
not entitled to a benefit under Sec. 404.380 or section 227 of the Act
in the month the application is made, we may consider you to have at
least one QC before 1951 if you have $400 or more total wages before
1951, as defined in paragraph (d)(2) of this section, provided that the
number of QCs credited to you under this paragraph plus the number of
QCs credited to you for periods after 1950 make you fully insured.
(2) What are total wages before 1951. For purposes of paragraph
(d)(1) of this section, your total wages before 1951 include--
(i) Remuneration credited to you before 1951 on the records of the
Secretary;
(ii) Wages considered paid to you before 1951 under section 217 of
the Act (relating to benefits in case of veterans);
(iii) Compensation under the Railroad Retirement Act of 1937 before
1951 that can be credited to you under title II of the Social Security
Act; and
(iv) Wages considered paid to you before 1951 under section 231 of
the Act (relating to benefits in case of certain persons interned in the
United States during World War II).
(e) When your fully insured status begins. You are fully insured as
of the first day of the calendar quarter in which you acquire the last
needed QC (see Sec. 404.145).
[45 FR 25384, Apr. 15, 1980, as amended at 50 FR 36573, Sept. 9, 1985;
57 FR 23156, June 2, 1992]
Sec. 404.111 When we consider a person fully insured based on World War II active military or naval service.
We consider that a person, who was not otherwise fully insured, died
fully insured if--
(a) The person was in the active military or naval service of the
United States during World War II;
(b) The person died within three years after separation from service
and before July 27, 1954; and
(c) The conditions in Sec. 404.1350 that permit us to consider the
person fully insured are met.
(d) The provisions of this section do not apply to persons filing
applications after May 31, 1992, unless a survivor is entitled to
benefits under section 202 of the Act based on the primary insurance
amount of the fully insured person for the month preceding the month in
which the application is made.
[45 FR 25384, Apr. 15, 1980, as amended at 57 FR 23157, June 2, 1992]
Sec. 404.112 When we consider certain employees of private nonprofit organizations to be fully insured.
If you are age 55 or over on January 1, 1984, and are on that date
an employee of an organization described in Sec. 404.1025(a) which does
not have in effect a waiver certificate under section 3121(k) of the
Code on that date and whose employees are mandatorily covered as a
result of section 102 of Pub. L. 98-21, we consider you to be fully
insured if you meet the following requirements:
------------------------------------------------------------------------
QC's
acquired
Your age on January 1, 1984 is-- after Dec.
31, 1983
------------------------------------------------------------------------
60 or over................................................. 6
59 or over but less than age 60............................ 8
58 or over but less than age 59............................ 12
57 or over but less than age 58............................ 16
55 or over but less than age 57............................ 20
------------------------------------------------------------------------
[50 FR 36573, Sept. 9, 1985]
[[Page 64]]
Sec. 404.115 Table for determining the quarters of coverage you need to be fully insured.
(a) General. You may use the following table to determine the number
of quarters of coverage (QCs) you need to be fully insured under
Sec. 404.110. Paragraphs (b) and (c) of this section tell you how to use
this table.
----------------------------------------------------------------------------------------------------------------
Worker who reaches retirement age as described in Sec. 404.110(b)(2) Worker who dies before reaching
----------------------------------------------------------------------- retirement age as described in Sec.
Col. II \1\ 404.110(b)(2)
---------------------------------------------------------------------
Col. I--Date of birth Col. III \2\- Col. V \4\--
Men Women -Year of Col. IV \3\ Age in year
death of death
----------------------------------------------------------------------------------------------------------------
Jan. 1, 1893 or earlier................... 6 6 \5\ 1957 6 \6\ 28
Jan. 2, 1893 to Jan. 1, 1894.............. 7 6 1958 7 29
Jan. 2, 1894 to Jan. 1, 1895.............. 8 6 1959 8 30
Jan. 2, 1895 to Jan. 1, 1896.............. 9 6 1960 9 31
Jan. 2, 1896 to Jan. 1, 1897.............. 10 7 1961 10 32
Jan. 2, 1897 to Jan. 1, 1898.............. 11 8 1962 11 33
Jan. 2, 1898 to Jan. 1, 1899.............. 12 9 1963 12 34
Jan. 2, 1899 to Jan. 1, 1900.............. 13 10 1964 13 35
Jan. 2, 1900 to Jan. 1, 1901.............. 14 11 1965 14 36
Jan. 2, 1901 to Jan. 1, 1902.............. 15 12 1966 15 37
Jan. 2, 1902 to Jan. 1, 1903.............. 16 13 1967 16 38
Jan. 2, 1903 to Jan. 1, 1904.............. 17 14 1968 17 39
Jan. 2, 1904 to Jan. 1, 1905.............. 18 15 1969 18 40
Jan. 2, 1905 to Jan. 1, 1906.............. 19 16 1970 19 41
Jan. 2, 1906 to Jan. 1, 1907.............. 20 17 1971 20 42
Jan. 2, 1907 to Jan. 1, 1908.............. 21 18 1972 21 43
Jan. 2, 1908 to Jan. 1, 1909.............. 22 19 1973 22 44
Jan. 2, 1909 to Jan. 1, 1910.............. 23 20 1974 23 45
Jan. 2, 1910 to Jan. 1, 1911.............. 24 21 1975 24 46
Jan. 2, 1911 to Jan. 1, 1912.............. 24 22 1976 25 47
Jan. 2, 1912 to Jan. 1, 1913.............. 24 23 1977 26 48
Jan. 2, 1913 to Jan. 1, 1914.............. 24 24 1978 27 49
Jan. 2, 1914 to Jan. 1, 1915.............. 25 25 1979 28 50
Jan. 2, 1915 to Jan. 1, 1916.............. 26 26 1980 29 51
Jan. 2, 1916 to Jan. 1, 1917.............. 27 27 1981 30 52
Jan. 2, 1917 to Jan. 1, 1918.............. 28 28 1982 31 53
Jan. 2, 1918 to Jan. 1, 1919.............. 29 29 1983 32 54
Jan. 2, 1919 to Jan. 1, 1920.............. 30 30 1984 33 55
Jan. 2, 1920 to Jan. 1, 1921.............. 31 31 1985 34 56
Jan. 2, 1921 to Jan. 1, 1922.............. 32 32 1986 35 57
Jan. 2, 1922 to Jan. 1, 1923.............. 33 33 1987 36 58
Jan. 2, 1923 to Jan. 1, 1924.............. 34 34 1988 37 59
Jan. 2, 1924 to Jan. 1, 1925.............. 35 35 1989 38 60
Jan. 2, 1925 to Jan. 1, 1926.............. 36 36 1990 39 61
Jan. 2, 1926 to Jan. 1, 1927.............. 37 37 \7\ 1991 40 62
Jan. 2, 1927 to Jan. 1, 1928.............. 38 38 ............ ............ ............
Jan. 2, 1928 to Jan. 1, 1929.............. 39 39 ............ ............ ............
Jan. 2, 1929 or later..................... 40 ............ ............ ............
----------------------------------------------------------------------------------------------------------------
\1\ Number of QCs required for fully insured status; living worker or worker who dies after reaching retirement
age.
\2\ Worker born before Jan. 2, 1930 who dies before reaching retirement age.
\3\ Number of QCs required for fully insured status.
\4\ Worker born Jan. 2, 1930 or later, who dies before reaching retirement age.
\5\ Or earlier.
\6\ Or younger.
\7\ Or later.
(b) Number of QCs you need. The QCs you need for fully insured
status are in column II opposite your date of birth in column I. If a
worker dies before reaching retirement age as described in
Sec. 404.110(b)(2), the QCs needed for fully insured status are shown in
column IV opposite--
(1) The year of death in column III, if the worker was born before
January 2, 1930; or
(2) The age in the year of death in column V, if the worker was born
after January 1, 1930.
(c) How a period of disability affects the number of QCs you need.
If you had a period of disability established for you, it affects the
number of QCs you need to be fully insured (see Sec. 404.110(c)). For
each year which is wholly or partly in a period of disability, subtract
one QC from the number of QCs shown in the
[[Page 65]]
appropriate line and column of the table as explained in paragraph (b)
of this section.
Currently Insured Status
Sec. 404.120 How we determine currently insured status.
(a) What the period is for determining currently insured status. You
are currently insured if you have at least 6 quarters of coverage (QCs)
during the 13-quarter period ending with the quarter in which you--
(1) Die;
(2) Most recently became entitled to disability insurance benefits;
or
(3) Became entitled to old-age insurance benefits.
(b) What quarters are not counted as part of the 13-quarter period.
We do not count as part of the 13-quarter period any quarter all or part
of which is included in a period of disability established for you,
except that the first and last quarters of the period of disability may
be counted if they are QCs (see Sec. 404.146(d)).
Disability Insured Status
Sec. 404.130 How we determine disability insured status.
(a) General. We have four different rules for determining if you are
insured for purposes of establishing a period of disability or becoming
entitled to disability insurance benefits. To have disability insured
status, you must meet one of these rules and you must be fully insured
(see Sec. 404.132 which tells when the period ends for determining the
number of quarters of coverage (QCs) you need to be fully insured).
(b) Rule I--You must meet the 20/40 requirement. You are insured in
a quarter for purposes of establishing a period of disability or
becoming entitled to disability insurance benefits if in that quarter--
(1) You are fully insured; and
(2) You have at least 20 QCs in the 40-quarter period (see paragraph
(f) of this section) ending with that quarter.
(c) Rule II--You become disabled before age 31. You are insured in a
quarter for purposes of establishing a period of disability or becoming
entitled to disability insurance benefits if in that quarter--
(1) You have not become (or would not become) age 31;
(2) You are fully insured; and
(3) You have QCs in at least one-half of the quarters during the
period ending with that quarter and beginning with the quarter after the
quarter you became age 21; however--
(i) If the number of quarters during this period is an odd number,
we reduce the number by one; and
(ii) If the period has less than 12 quarters, you must have at least
6 QCs in the 12-quarter period ending with that quarter.
(d) Rule III--You had a period of disability before age 31. You are
insured in a quarter for purposes of establishing a period of disability
or becoming entitled to disability insurance benefits if in that
quarter--
(1) You are disabled again at age 31 or later after having had a
prior period of disability established which began before age 31 and for
which you were only insured under paragraph (c) of this section; and
(2) You are fully insured and have QCs in at least one-half the
calendar quarters in the period beginning with the quarter after the
quarter you became age 21 and through the quarter in which the later
period of disability begins, up to a maximum of 20 QCs out of 40
calendar quarters; however--
(i) If the number of quarters during this period is an odd number,
we reduce the number by one;
(ii) If the period has less than 12 quarters, you must have at least
6 QCs in the 12-quarter period ending with that quarter; and
(iii) No monthly benefits may be paid or increased under Rule III
before May 1983.
(e) Rule IV--You are statutorily blind. You are insured in a quarter
for purposes of establishing a period of disability or becoming entitled
to disability insurance benefits if in that quarter--
(1) You are disabled by blindness as defined in Sec. 404.1581; and
(2) You are fully insured.
(f) How we determine the 40-quarter or other period. In determining
the 40-quarter period or other period in paragraph (b), (c), or (d) of
this section, we do not count any quarter all or part of
[[Page 66]]
which is in a prior period of disability established for you, unless the
quarter is the first or last quarter of this period and the quarter is a
QC. However, we will count all the quarters in the prior period of
disability established for you if by doing so you would be entitled to
benefits or the amount of the benefit would be larger.
[49 FR 28547, July 13, 1984, as amended at 55 FR 7313, Mar. 1, 1990]
Sec. 404.131 When you must have disability insured status.
(a) For a period of disability. To establish a period of disability,
you must have disability insured status in the quarter in which you
become disabled or in a later quarter in which you are disabled.
(b) For disability insurance benefits. (1) To become entitled to
disability insurance benefits, you must have disability insured status
in the first full month that you are disabled as described in
Sec. 404.1501(a), or if later--
(i) The 17th month (if you have to serve a waiting period described
in Sec. 404.315(d)) before the month in which you file an application
for disability insurance benefits; or
(ii) The 12th month (if you do not have to serve a waiting period)
before the month in which you file an application for disability
insurance benefits.
(2) If you do not have disability insured status in a month
specified in paragraph (b)(1) of this section, you will be insured for
disability insurance benefits beginning with the first month after that
month in which you do meet the insured status requirement and you also
meet all other requirements for disability insurance benefits described
in Sec. 404.315.
Sec. 404.132 How we determine fully insured status for a period of disability or disability insurance benefits.
In determining if you are fully insured for purposes of paragraph
(b), (c), (d), or (e) of Sec. 404.130 on disability insured status, we
use the fully insured status requirements in Sec. 404.110, but apply the
following rules in determining when the period of elasped years ends:
(a) If you are a woman, or a man born after January 1, 1913, the
period of elapsed years in Sec. 404.110(b) used in determining the
number of quarters of coverage (QCs) you need to be fully insured ends
as of the earlier of--
(1) The year you become age 62; or
(2) The year in which--
(i) Your period of disability begins;
(ii) Your waiting period begins (see Sec. 404.315(d)); or
(iii) You become entitled to disability insurance benefits (if you
do not have to serve a waiting period).
(b) If you are a man born before January 2, 1913, the period of
elapsed years in Sec. 404.110(b) used in determining the number of QCs
you need to be fully insured ends as of the earlier of--
(1) The year 1975; or
(2) The year specified in paragraph (a)(2) of this section.
[45 FR 25384, Apr. 15, 1980, as amended at 49 FR 28547, July 13, 1984]
Sec. 404.133 When we give you quarters of coverage based on military service to establish a period of disability.
For purposes of establishing a period of disability only, we give
you quarters of coverage (QCs) for your military service before 1957
(see subpart N of this part). We do this even though we may not use that
military service for other purposes of title II of the Act because a
periodic benefit is payable from another Federal agency based in whole
or in part on the same period of military service.
Quarters of Coverage
Sec. 404.140 What is a quarter of coverage.
(a) General. A quarter of coverage (QC) is the basic unit of social
security coverage used in determining a worker's insured status. We
credit you with QCs based on your earnings covered under social
security.
(b) How we credit QCs based on earnings before 1978 (General).
Before 1978, wages were generally reported on a quarterly basis and
self-employment income was reported on an annual basis. For the most
part, we credit QCs for calendar years before 1978 based on your
quarterly earnings. For these
[[Page 67]]
years, as explained in Sec. 404.141, we generally credit you with a QC
for each calendar quarter in which you were paid at least $50 in wages
or were credited with at least $100 of self-employment income. Section
404.142 tells how self-employment income derived in a taxable year
beginning before 1978 is credited to specific calendar quarters for
purposes of Sec. 404.141.
(c) How we credit QCs based on earnings after 1977 (General). After
1977, both wages and self-employment income are generally reported on an
annual basis. For calendar years after 1977, as explained in
Sec. 404.143, we generally credit you with a QC for each part of your
total covered earnings in a calendar year that equals the amount
required for a QC in that year. Section 404.143 also tells how the
amount required for a QC will be increased in the future as average
wages increase. Section 404.144 tells how self-employment income derived
in a taxable year beginning after 1977 is credited to specific calendar
years for purposes of Sec. 404.143.
(d) When a QC is acquired and when a calendar quarter is not a QC
(general). Section 404.145 tells when a QC is acquired and Sec. 404.146
tells when a calendar quarter cannot be a QC. These rules apply when we
credit QCs under Sec. 404.141 or Sec. 404.143.
Sec. 404.141 How we credit quarters of coverage for calendar years before 1978.
(a) General. The rules in this section tell how we credit calendar
quarters as quarters of coverage (QCs) for calendar years before 1978.
We credit you with a QC for a calendar quarter based on the amount of
wages you were paid and self-employment income you derived during
certain periods. The rules in paragraphs (b), (c), and (d) of this
section are subject to the limitations in Sec. 404.146, which tells when
a calendar quarter cannot be a QC.
(b) How we credit QCs based on wages paid in, or self-employment
income credited to, a calendar quarter. We credit you with a QC for a
calendar quarter in which--
(1) You were paid wages of $50 or more (see paragraph (c) of this
section for an exception relating to wages paid for agricultural labor);
or
(2) You were credited (under Sec. 404.142) with self-employment
income of $100 or more.
(c) How we credit QCs based on wages paid for agricultural labor in
a calendar year after 1954. (1) We credit QCs based on wages for
agricultural labor depending on the amount of wages paid during a
calendar year for that work. If you were paid wages for agricultural
labor in a calendar year after 1954 and before 1978, we credit you with
QCs for calendar quarters in that year which are not otherwise QCs
according to the following table.
------------------------------------------------------------------------
If the wages paid to you in a
calendar year for agricultural We credit you with And assign: \1\
labor were
------------------------------------------------------------------------
$400 or more.................... 4 QCs............. All.
At least $300 but less than $400 3 QCs............. Last 3.
At least $200 but less than $300 2 QCs............. Last 2.
At least $100 but less than $200 1 QC.............. Last.
Less than $100.................. No QCs............
------------------------------------------------------------------------
\1\ One QC to each of the following calendar quarters in that year.
(2) When we assign QCs to calendar quarters in a year as shown in
the table in paragraph (c)(1) of this section, you might not meet (or
might not meet as early in the year as otherwise possible) the
requirements to be fully or currently insured, to be entitled to a
computation or recomputation of your primary insurance amount, or to
establish a period of disability. If this happens, we assign the QCs to
different quarters in that year than those shown in the table if this
assignment permits you to meet these requirements (or meet them earlier
in the year). We can only reassign QCs for purposes of meeting these
requirements.
(d) How we credit QCs based on wages paid or self-employment income
derived in a year. (1) If you were paid wages in a calendar year after
1950 and before 1978 at least equal to the annual wage limitation in
effect for that year as described in Sec. 404.1027(a), we credit you
with a QC for each quarter in that calendar year. If you were paid at
least $3,000 wages in a calendar year before 1951, we credit you with a
QC for each quarter in that calendar year.
(2) If you derived self-employment income (or derived self-
employment income and also were paid wages) during
[[Page 68]]
a taxable year beginning after 1950 and before 1978 at least equal to
the self-employment income and wage limitation in effect for that year
as described in Sec. 404.1068(b), we credit you with a QC for each
calendar quarter wholly or partly in that taxable year.
[45 FR 25384, Apr. 15, 1980; 45 FR 41931, June 23, 1980]
Sec. 404.142 How we credit self-employment income to calendar quarters for taxable years beginning before 1978.
In crediting quarters of coverage under Sec. 404.141(b)(2), we
credit any self-employment income you derived during a taxable year that
began before 1978 to calendar quarters as follows:
(a) If your taxable year was a calendar year, we credit your self-
employment income equally to each quarter of that calendar year.
(b) If your taxable year was not a calendar year (that is, it began
on a date other than January 1, or was less than a calendar year), we
credit your self-employment income equally--
(1) To the calendar quarter in which your taxable year ended; and
(2) To each of the next three or fewer preceding quarters that were
wholly or partly in your taxable year.
Sec. 404.143 How we credit quarters of coverage for calendar years after 1977.
(a) Crediting quarters of coverage (QCs). For calendar years after
1977, we credit you with a QC for each part of the total wages paid and
self-employment income credited (under Sec. 404.144) to you in a
calendar year that equals the amount required for a QC in that year. For
example, if the total of your wages and self-employment income for a
calendar year is more than twice, but less than 3 times, the amount
required for a QC in that year, we credit you with only 2 QCs for the
year. The rules for crediting QCs in this section are subject to the
limitations in Sec. 404.146, which tells when a calendar quarter cannot
be a QC. In addition, we cannot credit you with more than four QCs for
any calendar year. The amount of wages and self-employment income that
you must have for each QC is--
(1) $250 for calendar year 1978; and
(2) For each calendar year after 1978, an amount determined by the
Commissioner for that year (on the basis of a formula in section
213(d)(2) of the Act which reflects national increases in average
wages). The amount determined by the Commissioner is published in the
Federal Register on or before November 1 of the preceding year and
included in the appendix to this subpart.
(b) Assigning QCs. We assign a QC credited under paragraph (a) of
this section to a specific calendar quarter in the calendar year only if
the assignment is necessary to--
(1) Give you fully or currently insured status;
(2) Entitle you to a computation or recomputation of your primary
insurance amount; or
(3) Permit you to establish a period of disability.
[45 FR 25834, Apr. 15, 1980, as amended at 62 FR 38450, July 18, 1997]
Sec. 404.144 How we credit self-employment income to calendar years for taxable years beginning after 1977.
In crediting quarters of coverage under Sec. 404.143(a), we credit
self-employment income you derived during a taxable year that begins
after 1977 to calendar years as follows:
(a) If your taxable year is a calendar year or begins and ends
within the same calendar year, we credit your self-employment income to
that calendar year.
(b) If your taxable year begins in one calendar year and ends in the
following calendar year, we allocate proportionately your self-
employment income to the two calendar years on the basis of the number
of months in each calendar year which are included completely within
your taxable year. We consider the calendar month in which your taxable
year ends as included completely within your taxable year.
Example: For the taxable year beginning May 15, 1978, and ending May
14, 1979, your self-employment income is $1200. We credit 7/12 ($700) of
your self-employment income to calendar year 1978 and 5/12 ($500) of
your self-employment income to calendar year 1979.
[[Page 69]]
Sec. 404.145 When you acquire a quarter of coverage.
If we credit you with a quarter of coverage (QC) for a calendar
quarter under paragraph (b), (c), or (d) of Sec. 404.141 for calendar
years before 1978 or assign it to a specific calendar quarter under
paragraph (b) of Sec. 404.143 for calendar years after 1977, you acquire
the QC as of the first day of the calendar quarter.
Sec. 404.146 When a calendar quarter cannot be a quarter of coverage.
This section applies when we credit you with quarters of coverage
(QCs) under Sec. 404.141 for calendar years before 1978 and under
Sec. 404.143 for calendar years after 1977. We cannot credit you with a
QC for--
(a) A calendar quarter that has not begun;
(b) A calendar quarter that begins after the quarter of your death;
(c) A calendar quarter that has already been counted as a QC; or
(d) A calendar quarter that is included in a period of disability
established for you, unless--
(1) The quarter is the first or the last quarter of this period; or
(2) The period of disability is not taken into consideration (see
Sec. 404.320(a)).
Appendix to Subpart B of Part 404--Quarter of Coverage Amounts for
Calendar Years After 1978
This appendix shows the amount determined by the Commissioner that
is needed for a quarter of coverage for each year after 1978 as
explained in Sec. 404.143. We publish the amount as a Notice in the
Federal Register on or before November 1 of the preceding year. The
amounts determined by the Commissioner are as follows:
------------------------------------------------------------------------
Amount
Calendar year needed
------------------------------------------------------------------------
1979.......................................................... $260
1980.......................................................... 290
1981.......................................................... 310
1982.......................................................... 340
1983.......................................................... 370
1984.......................................................... 390
1985.......................................................... 410
1986.......................................................... 440
1987.......................................................... 460
1988.......................................................... 470
1989.......................................................... 500
1990.......................................................... 520
1991.......................................................... 540
1992.......................................................... 570
------------------------------------------------------------------------
[45 FR 25384, Apr. 15, 1980, as amended at 52 FR 8247, Mar. 17, 1987; 57
FR 44096, Sept 24, 1992; 62 FR 38450, July 18, 1997]
Subpart C--Computing Primary Insurance Amounts
Authority: Secs. 202(a), 205(a), 215, and 702(a)(5) of the Social
Security Act (42 U.S.C. 402(a), 405(a), 415, and 902(a)(5)).
Source: 47 FR 30734, July 15, 1982, unless otherwise noted.
General
Sec. 404.201 What is included in this subpart?
In this subpart we describe how we compute your primary insurance
amount (PIA), how and when we will recalculate or recompute your PIA to
include credit for additional earnings, and how we automatically adjust
your PIA to reflect changes in the cost of living.
(a) What is my primary insurance amount? Your primary insurance
amount (PIA) is the basic figure we use to determine the monthly benefit
amount payable to you and your family. For example, if you retire in the
month you attain full retirement age (as defined in Sec. 404.409) or if
you become disabled, you will be entitled to a monthly benefit equal to
your PIA. If you retire prior to full retirement age your monthly
benefit will be reduced as explained in Secs. 404.410--404.413. Benefits
to other members of your family are a specified percentage of your PIA
as explained in subpart D. Total benefits to your family are subject to
a maximum as explained in Sec. 404.403.
(b) How is this subpart organized? (1) In Secs. 404.201 through
404.204, we explain some introductory matters.
(2) In Secs. 404.210 through 404.213, we describe the average-
indexed-monthly-earnings method we use to compute the primary insurance
amount (PIA) for workers who attain age 62 (or become disabled or die
before age 62) after 1978.
(3) In Secs. 404.220 through 404.222, we describe the average-
monthly-wage method we use to compute the PIA for
[[Page 70]]
workers who attain age 62 (or become disabled or die before age 62)
before 1979.
(4) In Secs. 404.230 through 404.233, we describe the guaranteed
alternative method we use to compute the PIA for people who attain age
62 after 1978 but before 1984.
(5) In Secs. 404.240 through 404.243, we describe the old-start
method we use to compute the PIA for those who had all or substantially
all of their social security covered earnings before 1951.
(6) In Secs. 404.250 through 404.252, we describe special rules we
use to compute the PIA for a worker who previously had a period of
disability.
(7) In Secs. 404.260 through 404.261, we describe how we compute the
special minimum PIA for long-term, low-paid workers.
(8) In Secs. 404.270 through 404.278, we describe how we
automatically increase your PIA because of increases in the cost of
living.
(9) In Secs. 404.280 through 404.288, we describe how and when we
will recompute your PIA to include additional earnings which were not
used in the original computation.
(10) In Sec. 404.290 we describe how and when we will recalculate
your PIA.
(11) Appendices I-VII contain material such as figures and formulas
that we use to compute PIAs.
[68 FR 4701, Jan. 30, 2003]
Sec. 404.202 Other regulations related to this subpart.
This subpart is related to several others. In subpart B of this
part, we describe how you become insured for social security benefits as
a result of your work in covered employment. In subpart D, we discuss
the different kinds of social security benefits available--old-age and
disability benefits for you and benefits for your dependents and
survivors--the amount of the benefits, and the requirements you and your
family must meet to qualify for them; your work status, your age, the
size of your family, and other factors may affect the amount of the
benefits for you and your family. Rules relating to deductions,
reductions, and nonpayment of benefits we describe in subpart E. In
subpart F of this part, we describe what we do when a recalculation or
recomputation of your primary insurance amount (as described in this
subpart) results in our finding that you and your family have been
overpaid or underpaid. In subparts G and H of this part, we tell how to
apply for benefits and what evidence is needed to establish entitlement
to them. In subpart J of this part, we describe how benefits are paid.
Then in subparts I, K, N, and O of this part, we discuss your earnings
that are taxable and creditable for social security purposes (and how we
keep records of them), and deemed military wage credits which may be
used in finding your primary insurance amount.
Sec. 404.203 Definitions.
(a) General definitions. As used in this subpart--
Ad hoc increase in primary insurance amounts means an increase in
primary insurance amounts enacted by the Congress and signed into law by
the President.
Entitled means that a person has applied for benefits and has proven
his or her right to them for a given period of time.
We, us, or our means the Social Security Administration.
You or your means the insured worker who has applied for benefits or
a deceased insured worker on whose social security earnings record
someone else has applied.
(b) Other definitions. To make it easier to find them, we have
placed other definitions in the sections of this subpart in which they
are used.
[47 FR 30734, July 15, 1982, as amended at 62 FR 38450, July 18, 1997]
Sec. 404.204 Methods of computing primary insurance amounts--general.
(a) General. We compute most workers' primary insurance amounts
under one of two major methods. There are, in addition, several special
methods of computing primary insurance amounts which we apply to some
workers. Your primary insurance amount is the highest of all those
computed under the methods for which you are eligible.
(b) Major methods. (1) If after 1978 you reach age 62, or become
disabled or die before age 62, we compute your primary insurance amount
under what we
[[Page 71]]
call the average-indexed-monthly-earnings method, which is described in
Secs. 404.210 through 404.212. The earliest of the three dates
determines the computation method we use.
(2) If before 1979 you reached age 62, became disabled, or died, we
compute your primary insurance amount under what we call the average-
monthly-wage method, described in Secs. 404.220 through 404.222.
(c) Special methods. (1) Your primary insurance amount, computed
under any of the special methods for which you are eligible as described
in this paragraph, may be substituted for your primary insurance amount
computed under either major method described in paragraph (b) of this
section.
(2) If you reach age 62 during the period 1979-1983, your primary
insurance amount is guaranteed to be the highest of--
(i) The primary insurance amount we compute for you under the
average-indexed-monthly-earnings method;
(ii) The primary insurance amount we compute for you under the
average-monthly-wage method, as modified by the rules described in
Secs. 404.230 through 404.233; or
(iii) The primary insurance amount computed under what we call the
old-start method; as described in Secs. 404.240 through 404.242.
(3) If you had all or substantially all of your social security
earnings before 1951, we will also compute your primary insurance amount
under what we call the old-start method.
(4) We compute your primary insurance amount under the rules in
Secs. 404.250 through 404.252, if--
(i) You were disabled and received social security disability
insurance benefits sometime in your life;
(ii) Your disability insurance benefits were terminated because of
your recovery or because you engaged in substantial gainful activity;
and
(iii) You are, after 1978, re-entitled to disability insurance
benefits, or entitled to old-age insurance benefits, or have died.
(5) In some situations, we use what we call a special minimum
computation, described in Secs. 404.260 through 404.261, to find your
primary insurance amount. Computations under this method reflect long-
term, low-wage attachment to covered work.
Average-Indexed-Monthly Earnings Method of Computing Primary Insurance
Amounts
Sec. 404.210 Average-indexed-monthly-earnings method.
(a) Who is eligible for this method. If after 1978, you reach age
62, or become disabled or die before age 62, we will compute your
primary insurance amount under the average-indexed-monthly-earnings
method.
(b) Steps in computing your primary insurance amount under the
average-indexed-monthly-earnings method. We follow these three major
steps in computing your primary insurance amount:
(1) First, we find your average indexed monthly earnings, as
described in Sec. 404.211;
(2) Second, we find the benefit formula in effect for the year you
reach age 62, or become disabled or die before age 62, as described in
Sec. 404.212; and
(3) Then, we apply that benefit formula to your average indexed
monthly earnings to find your primary insurance amount, as described in
Sec. 404.212.
(4) Next, we apply any automatic cost-of-living or ad hoc increases
in primary insurance amounts that became effective in or after the year
you reached age 62, unless you are receiving benefits based on the
minimum primary insurance amount, in which case not all the increases
may be applied, as described in Sec. 404.277.
Sec. 404.211 Computing your average indexed monthly earnings.
(a) General. In this method, your social security earnings after
1950 are indexed, as described in paragraph (d) of this section, then
averaged over the period of time you can reasonably have been expected
to have worked in employment or self-employment covered by social
security. (Your earnings before 1951 are not used in finding your
average indexed monthly earnings.)
(b) Which earnings may be used in computing your average indexed
monthly earnings--(1) Earnings. In computing your average indexed
monthly earnings, we use wages, compensation, self-
[[Page 72]]
employment income, and deemed military wage credits (see Secs. 404.1340
through 404.1343) that are creditable to you for social security
purposes for years after 1950.
(2) Computation base years. We use your earnings in your computation
base years in finding your average indexed monthly earnings. All years
after 1950 up to (but not including) the year you become entitled to
old-age or disability insurance benefits, and through the year you die
if you had not been entitled to old-age or disability benefits, are
computation base years for you. The year you become entitled to benefits
and following years may be used as computation base years in a
recomputation if their use would result in a higher primary insurance
amount. (See Secs. 404.280 through 404.287.) However, years after the
year you die may not be used as computation base years even if you have
earnings credited to you in those years. Computation base years do not
include years wholly within a period of disability unless your primary
insurance amount would be higher by using the disability years. In such
situations, we count all the years during the period of disability, even
if you had no earnings in some of them.
(c) Average of the total wages. Before we compute your average
indexed monthly earnings, we must first know the ``average of the total
wages'' of all workers for each year from 1951 until the second year
before you become eligible. The average of the total wages for years
after 1950 are shown in appendix I. Corresponding figures for more
recent years which have not yet been incorporated into this appendix are
published in the Federal Register on or before November 1 of the
succeeding year. ``Average of the total wages'' (or ``average wage'')
means:
(1) For the years 1951 through 1977, four times the amount of
average taxable wages that were reported to the Social Security
Administration for the first calendar quarter of each year for social
security tax purposes. For years prior to 1973, these average wages were
determined from a sampling of these reports.
(2) For the years 1978 through 1990, all remuneration reported as
wages on Form W-2 to the Internal Revenue Service for all employees for
income tax purposes, divided by the number of wage earners. We adjusted
those averages to make them comparable to the averages for 1951-1977.
For years after 1977, the term includes remuneration for services not
covered by social security and remuneration for covered employment in
excess of that which is subject to FICA contributions.
(3) For years after 1990, all remuneration reported as wages on Form
W-2 to the Internal Revenue Service for all employees for income tax
purposes, including remuneration described in paragraph (c)(2) of this
section, plus contributions to certain deferred compensation plans
described in section 209(k) of the Social Security Act (also reported on
Form W-2), divided by the number of wage earners. If both distributions
from and contributions to any such deferred compensation plan are
reported on Form W-2, we will include only the contributions in the
calculation of the average of the total wages. We will adjust those
averages to make them comparable to the averages for 1951-1990.
(d) Indexing your earnings. (1) The first step in indexing your
social security earnings is to find the relationship (under paragraph
(d)(2) of this section) between--
(i) The average wage of all workers in your computation base years;
and
(ii) The average wage of all workers in your indexing year. As a
general rule, your indexing year is the second year before the earliest
of the year you reach age 62, or become disabled or die before age 62.
However, your indexing year is determined under paragraph (d)(4) of this
section if you die before age 62, your surviving spouse or surviving
divorced spouse is first eligible for benefits after 1984, and the
indexing year explained in paragraph (d)(4) results in a higher
widow(er)'s benefit than results from determining the indexing year
under the general rule.
(2) To find the relationship, we divide the average wages for your
indexing year, in turn, by the average wages for each year beginning
with 1951 and ending with your indexing year. We use the quotients found
in these divisions to index your earnings as described in paragraph
(d)(3) of this section.
[[Page 73]]
(3) The second step in indexing your social security earnings is to
multiply the actual year-by-year dollar amounts of your earnings (up to
the maximum amounts creditable, as explained in Secs. 404.1047 and
404.1096 of this part) by the quotients found in paragraph (d)(2) of
this section for each of those years. We round the results to the nearer
penny. (The quotient for your indexing year is 1.0; this means that your
earnings in that year are used in their actual dollar amount; any
earnings after your indexing year that may be used in computing your
average indexed monthly earnings are also used in their actual dollar
amount.)
Example: Ms. A reaches age 62 in July 1979. Her year-by-year social
security earnings since 1950 are as follows:
------------------------------------------------------------------------
Year Earnings
------------------------------------------------------------------------
1951....................................................... $3,200
1952....................................................... 3,400
1953....................................................... 3,300
1954....................................................... 3,600
1955....................................................... 3,700
1956....................................................... 3,700
1957....................................................... 4,000
1958....................................................... 4,200
1959....................................................... 4,400
1960....................................................... 4,500
1961....................................................... 2,800
1962....................................................... 2,200
1963....................................................... 0
1964....................................................... 0
1965....................................................... 3,700
1966....................................................... 4,500
1967....................................................... 5,400
1968....................................................... 6,200
1969....................................................... 6,900
1970....................................................... 7,300
1971....................................................... 7,500
1972....................................................... 7,800
1973....................................................... 8,200
1974....................................................... 9,000
1975....................................................... 9,900
1976....................................................... 11,100
1977....................................................... 9,900
1978....................................................... 11,000
------------------------------------------------------------------------
Step 1. The first step in indexing Ms. A's earnings is to find the
relationship between the general wage level in Ms. A's indexing year
(1977) and the general wage level in each of the years 1951-1976. We
refer to appendix I for average wage figures, and perform the following
computations:
------------------------------------------------------------------------
II. III. Column
I. 1977 Nationwide I divided by
Year general average of column II
wage level the total equals
wages relationship
------------------------------------------------------------------------
1951.............................. $9,779.44 $2,799.16 3.4937053
1952.............................. 9,779.44 2,973.32 3.2890641
1953.............................. 9,779.44 3,139.44 3.1150269
1954.............................. 9,779.44 3,155.64 3.0990354
1955.............................. 9,779.44 3,301.44 2.9621741
1956.............................. 9,779.44 3,532.36 2.7685287
1957.............................. 9,779.44 3,641.72 2.6853904
1958.............................. 9,779.44 3,673.80 2.6619413
1959.............................. 9,779.44 3,855.80 2.5362934
1960.............................. 9,779.44 4,007.12 2.4405159
1961.............................. 9,779.44 4,086.76 2.3929568
1962.............................. 9,779.44 4,291.40 2.2788461
1963.............................. 9,779.44 4,396.64 2.2242986
1964.............................. 9,779.44 4,576.32 2.1369659
1965.............................. 9,779.44 4,658.72 2.0991689
1966.............................. 9,779.44 4,938.36 1.9803012
1967.............................. 9,779.44 5,213.44 1.8758133
1968.............................. 9,779.44 5,571.76 1.7551797
1969.............................. 9,779.44 5,893.76 1.6592871
1970.............................. 9,779.44 6,186.24 1.5808375
1971.............................. 9,779.44 6,497.08 1.5052054
1972.............................. 9,779.44 7,133.80 1.3708599
1973.............................. 9,779.44 7,580.16 1.2901364
1974.............................. 9,779.44 8,030.76 1.2177478
1975.............................. 9,779.44 8,630.92 1.1330704
1976.............................. 9,779.44 9,226.48 1.0599318
1977.............................. 9,779.44 9,779.44 1.0000000
------------------------------------------------------------------------
Step 2. After we have found these indexing quotients, we multiply
Ms. A's actual year-by-year earnings by them to find her indexed
earnings, as shown below:
------------------------------------------------------------------------
III.
Column I
II. multiplied
Year I. Actual Indexing by column
earnings quotient II equals
indexed
earnings
------------------------------------------------------------------------
1951................................ $3,200 3.4937053 $11,179.86
1952................................ 3,400 3.2890641 11,182.82
1953................................ 3,300 3.1150269 10,279.59
1954................................ 3,600 3.0990354 11,156.53
1955................................ 3,700 2.9621741 10,960.04
1956................................ 3,700 2.7685287 10,243.56
1957................................ 4,000 2.6853904 10,741.56
1958................................ 4,200 2.6619413 11,180.15
1959................................ 4,400 2.5362934 11,159.69
1960................................ 4,500 2.4405159 10,982.32
1961................................ 2,800 2.3929568 6,700.28
1962................................ 2,200 2.2788461 5,013.46
1963................................ 0 2.2242986 0
1964................................ 0 2.1369659 0
1965................................ 3,700 2.0991689 7,766.92
1966................................ 4,500 1.9803012 8,911.36
1967................................ 5,400 1.8758133 10,129.39
1968................................ 6,200 1.7551797 10,882.11
1969................................ 6,900 1.6592871 11,449.08
1970................................ 7,300 1.5808375 11,540.11
1971................................ 7,500 1.5052054 11,289.04
1972................................ 7,800 1.3708599 10,692.71
1973................................ 8,200 1.2901364 10,579.12
1974................................ 9,000 1.2177478 10,959.73
1975................................ 9,900 1.1330704 11,217.40
1976................................ 11,100 1.0599318 11,765.24
1977................................ 9,900 1.0000000 9,900.00
1978................................ 11,000 0 11,000.00
------------------------------------------------------------------------
(4) We calculate your indexing year under this paragraph if you, the
insured worker, die before reaching age 62, your surviving spouse or
surviving
[[Page 74]]
divorced spouse is first eligible after 1984, and the indexing year
calculated under this paragraph results in a higher widow(er)'s benefit
than results from the indexing year calculated under the general rule
explained in paragraph (d)(1)(ii). For purposes of this paragraph, the
indexing year is never earlier than the second year before the year of
your death. Except for this limitation, the indexing year is the earlier
of--
(i) The year in which you, the insured worker, attained age 60, or
would have attained age 60 if you had lived, and
(ii) The second year before the year in which the surviving spouse
or the surviving divorced spouse becomes eligible for widow(er)'s
benefits, i.e. has attained age 60, or is age 50-59 and disabled.
(e) Number of years to be considered in finding your average indexed
monthly earnings. To find the number of years to be used in computing
your average indexed monthly earnings--
(1) We count the years beginning with 1951, or (if later) the year
you reach age 22, and ending with the earliest of the year before you
reach age 62, become disabled, or die. Years wholly or partially within
a period of disability (as defined in Sec. 404.1501(b) of subpart P of
this part) are not counted unless your primary insurance amount would be
higher. In that case, we count all the years during the period of
disability, even though you had no earnings in some of those years.
These are your elapsed years. From your elapsed years, we then subtract
up to 5 years, the exact number depending on the kind of benefits to
which you are entitled. You cannot, under this procedure, have fewer
than 2 benefit computation years.
(2) For computing old-age insurance benefits and survivors insurance
benefits, we subtract 5 from the number of your elapsed years. See
paragraphs (e) (3) and (4) of this section for the dropout as applied to
disability benefits. This is the number of your benefit computation
years; we use the same number of your computation base years (see
paragraph (b)(2) of this section) in computing your average indexed
monthly earnings. For benefit computation years, we use the years with
the highest amounts of earnings after indexing. They may include
earnings from years that were not indexed, and must include years of no
earnings if you do not have sufficient years with earnings. You cannot
have fewer than 2 benefit computation years.
(3) Where the worker is first entitled to disability insurance
benefits (DIB) after June 1980, there is an exception to the usual 5
year dropout provision explained in paragraph (e)(2) of this section.
(For entitlement before July 1980, we use the usual dropout.) We call
this exception the disability dropout. We divide the elapsed years by 5
and disregard any fraction. The result, which may not exceed 5, is the
number of dropout years. We subtract that number from the number of
elapsed years to get the number of benefit computation years, which may
not be fewer than 2. After the worker dies, the disability dropout no
longer applies and we use the basic 5 dropout years to compute benefits
for survivors. We continue to apply the disability dropout when a person
becomes entitled to old-age insurance benefits (OAIB), unless his or her
entitlement to DIB ended at least 12 months before he or she became
eligible for OAIB. For first DIB entitlement before July 1980, we use
the rule in paragraph (e)(2) of this section.
(4) For benefits payable after June 1981, the disability dropout
might be increased by the child care dropout. If the number of
disability dropout years is fewer than 3, we will drop out a benefit
computation year for each benefit computation year that the worker meets
the child care requirement and had no earnings, until the total of all
dropout years is 3. The child care requirement for any year is that the
worker must have been living with his or her child (or his or her
spouse's child) substantially throughout any part of any calendar year
that the child was alive and under age 3. In actual practice, no more
than 2 child care years may be dropped, because of the combined effect
of the number of elapsed years, 1-for-5 dropout years (if any), and the
computation years required for the computation.
[[Page 75]]
Example: Ms. M., born August 4, 1953, became entitled to disability
insurance benefits (DIB) beginning in July 1980 based on a disability
which began January 15, 1980. In computing the DIB, we determined that
the elapsed years are 1975 through 1979, the number of dropout years is
1 (5 elapsed years divided by 5), and the number of computation years is
4. Since Ms. M. had no earnings in 1975 and 1976, we drop out 1975 and
use her earnings for the years 1977 through 1979.
Ms. M. lived with her child, who was born in 1972, in all months of
1973 and 1974 and did not have any earnings in those years. We,
therefore, recompute Ms. M.'s DIB beginning with July 1981 to give her
the advantage of the child care dropout. To do this, we reduce the 4
computation years by 1 child care year to get 3 computation years.
Because the child care dropout cannot be applied to computation years in
which the worker had earnings, we can drop only one of Ms. M.'s
computation years, i.e., 1976, in addition to the year 1975 which we
dropped in the initial computation.
(i) Living with means that you and the child ordinarily live in the
same home and you exercise, or have the right to exercise, parental
control. See Sec. 404.366(c) for a further explanation.
(ii) Substantially throughout any part of any calendar year means
that any period you were not living with the child during a calendar
year did not exceed 3 months. If the child was either born or attained
age 3 during the calendar year, the period of absence in the year cannot
have exceeded the smaller period of 3 months, or one-half the time after
the child's birth or before the child attained age 3.
(iii) Earnings means wages for services rendered and net earnings
from self-employment minus any net loss for a taxable year. See
Sec. 404.429 for a further explanation.
(f) Your average indexed monthly earnings. After we have indexed
your earnings and found your benefit computation years, we compute your
average indexed monthly earnings by--
(1) Totalling your indexed earnings in your benefit computation
years;
(2) Dividing the total by the number of months in your benefit
computation years; and
(3) Rounding the quotient to the next lower whole dollar. if not
already a multiple of $1.
Example: From the example in paragraph (d) of this section, we see
that Ms. A reaches age 62 in 1979. Her elapsed years are 1951-1978 (28
years). We subtract 5 from her 28 elapsed years to find that we must use
23 benefit computation years. This means that we will use her 23 highest
computation base years to find her average indexed monthly earnings. We
exclude the 5 years 1961-1965 and total her indexed earnings for the
remaining years, i.e., the benefit computation years (including her
unindexed earnings in 1977 and 1978) and get $249,381.41. We then divide
that amount by the 276 months in her 23 benefit computation years and
find her average indexed monthly earnings to be $903.56, which is
rounded down to $903.
[47 FR 30734, July 15, 1982; 47 FR 35479, Aug. 13, 1982, as amended at
48 FR 11695, Mar. 21, 1983; 51 FR 4482, Feb. 5, 1986; 57 FR 1381, Jan.
14, 1992]
Sec. 404.212 Computing your primary insurance amount from your average indexed monthly earnings.
(a) General. We compute your primary insurance amount under the
average-indexed-monthly-earnings method by applying a benefit formula to
your average indexed monthly earnings.
(b) Benefit formula. (1) We use the applicable benefit formula in
appendix II for the year you reach age 62, become disabled, or die
whichever occurs first. If you die before age 62, and your surviving
spouse or surviving divorced spouse is first eligible after 1984, we may
compute the primary insurance amount, for the purpose of paying benefits
to your widow(er), as if you had not died but reached age 62 in the
second year after the indexing year that we computed under the
provisions of Sec. 404.211(d)(4). We will not use this primary insurance
amount for computing benefit amounts for your other survivors or for
computing the maximum family benefits payable on your earnings record.
Further, we will only use this primary insurance amount if it results in
a higher widow(er)'s benefit than would result if we did not use this
special computation.
(2) The dollar amounts in the benefit formula are automatically
increased each year for persons who attain age 62, or who become
disabled or die before age 62 in that year, by the same percentage as
the increase in the average of the total wages (see appendix I).
(3) We will publish benefit formulas for years after 1979 in the
Federal Register at the same time we publish
[[Page 76]]
the average of the total wage figures. We begin to use a new benefit
formula as soon as it is applicable, even before we periodically update
appendix II.
(4) We may use a modified formula, as explained in Sec. 404.213, if
you are entitled to a pension based on your employment which was not
covered by Social Security.
(c) Computing your primary insurance amount from the benefit
formula. We compute your primary insurance amount by applying the
benefit formula to your average indexed monthly earnings and adding the
results for each step of the formula. For computations using the benefit
formulas in effect for 1979 through 1982, we round the total amount to
the next higher multiple of $0.10 if it is not a multiple of $0.10 and
for computations using the benefit formulas effective for 1983 and later
years, we round to the next lower multiple of $0.10. (See paragraph (e)
of this section for a discussion of the minimum primary insurance
amount.)
(d) Adjustment of your primary insurance amount when entitlement to
benefits occurs in a year after attainment of age 62, disability or
death. If you (or your survivors) do not become entitled to benefits in
the same year you reach age 62, become disabled, or die before age 62,
we compute your primary insurance amount by--
(1) Computing your average indexed monthly earnings as described in
Sec. 404.211;
(2) Applying to your average indexed monthly earnings the benefit
formula for the year in which you reach age 62, or become disabled or
die before age 62; and
(3) Applying to the primary insurance amount all automatic cost-of-
living and ad hoc increases in primary insurance amounts that have gone
into effect in or after the year you reached age 62, became disabled, or
died before age 62. (See Sec. 404.277 for special rules on minimum
benefits, and appendix VI for a table of percentage increases in primary
insurance amounts since December 1978. Increases in primary insurance
amounts are published in the Federal Register and we periodically update
appendix VI.)
(e) Minimum primary insurance amount. If you were eligible for
benefits, or died without having been eligible, before 1982, your
primary insurance amount computed under this method cannot be less than
$122. This minimum benefit provision has been repealed effective with
January 1982 for most workers and their families where the worker
initially becomes eligible for benefits in that or a later month, or
dies in January 1982 or a later month without having been eligible
before January 1982. For members of a religious order who are required
to take a vow of poverty, as explained in 20 CFR 404.1024, and which
religious order elected Social Security coverage before December 29,
1981, the repeal is effective with January 1992 based on first
eligibility or death in that month or later.
[47 FR 30734, July 15, 1982, as amended at 48 FR 46142, Oct. 11, 1983;
51 FR 4482, Feb. 5, 1986; 52 FR 47916, Dec. 17, 1987]
Sec. 404.213 Computation where you are eligible for a pension based on your noncovered employment.
(a) When applicable. Except as provided in paragraph (d) of this
section, we will modify the formula prescribed in Sec. 404.212 and in
appendix II of this subpart in the following situations:
(1) You become eligible for old-age insurance benefits after 1985;
or
(2) You become eligible for disability insurance benefits after
1985; and
(3) For the same months after 1985 that you are entitled to old-age
or disability benefits, you are also entitled to a monthly pension(s)
for which you first became eligible after 1985 based in whole or part on
your earnings in employment which was not covered under Social Security.
We consider you to first become eligible for a monthly pension in the
first month for which you met all requirements for the pension except
that you were working or had not yet applied. In determining whether you
are eligible for a pension before 1986, we consider all applicable
service used by the pension-paying agency. (Noncovered employment
includes employment outside the United States which is not covered under
the United States Social Security system. Pensions from noncovered
employment outside the United States include both pensions from social
insurance systems
[[Page 77]]
that base benefits on earnings but not on residence or citizenship, and
those from private employers. However, for benefits payable for months
prior to January 1995, we will not modify the computation of a
totalization benefit (see Secs. 404.1908 and 404.1918) as a result of
your entitlement to another pension based on employment covered by a
totalization agreement. Beginning January 1995, we will not modify the
computation of a totalization benefit in any case (see
Sec. 404.213(e)(8)).
(b) Amount of your monthly pension that we use. For purposes of
computing your primary insurance amount, we consider the amount of your
monthly pension(s) (or the amount prorated on a monthly basis) which is
attributable to your noncovered work after 1956 that you are entitled to
for the first month in which you are concurrently entitled to Social
Security benefits. For applications filed before December 1988, we will
use the month of earliest concurrent eligibility. In determining the
amount of your monthly pension we will use, we will consider the
following:
(1) If your pension is not paid on a monthly basis or is paid in a
lump-sum, we will allocate it proportionately as if it were paid
monthly. We will allocate this the same way we allocate lump-sum
payments for a spouse or surviving spouse whose benefits are reduced
because of entitlement to a Government pension. (See Sec. 404.408a.)
(2) If your monthly pension is reduced to provide a survivor's
benefit, we will use the unreduced amount.
(3) If the monthly pension amount which we will use in computing
your primary insurance amount is not a multiple of $0.10, we will round
it to the next lower multiple of $0.10.
(c) How we compute your primary insurance amount. When you become
entitled to old-age or disability insurance benefits and to a monthly
pension, we will compute your primary insurance amount under the
average-indexed-monthly-earnings method (Sec. 404.212) as modified by
paragraph (c) (1) and (2) of this section. Where applicable, we will
also consider the 1977 simplified old-start method (Sec. 404.241) as
modified by Sec. 404.243 and a special minimum primary insurance amount
as explained in Secs. 404.260 and 404.261. We will use the highest
result from these three methods as your primary insurance amount. We
compute under the average-indexed-monthly-earnings method, and use the
higher primary insurance amount resulting from the application of
paragraphs (c) (1) and (2) of this section, as follows:
(1) The formula in appendix II, except that instead of the first
percentage figure (i.e., 90 percent), we use--
(i) 80 percent if you initially become eligible for old-age or
disability insurance benefits in 1986;
(ii) 70 percent for initial eligibility in 1987;
(iii) 60 percent for initial eligibility in 1988;
(iv) 50 percent for initial eligibility in 1989;
(v) 40 percent for initial eligibility in 1990 and later years, or
(2) The formula in appendix II minus one-half the portion of your
monthly pension which is due to noncovered work after 1956 and for which
you were entitled in the first month you were entitled to both Social
Security benefits and the monthly pension. If the monthly pension amount
is not a multiple of $0.10, we will round to the next lower multiple of
$0.10. To determine the portion of your pension which is due to
noncovered work after 1956, we consider the total number of years of
work used to compute your pension and the percentage of those years
which are after 1956, and in which your employment was not covered. We
take that percentage of your total pension as the amount which is due to
your noncovered work after 1956.
(d) Alternate computation. (1) If you have more than 20 but less
than 30 years of coverage as defined in the column headed ``Alternate
Computation Under Sec. 404.213(d)'' in appendix IV of this subpart, we
will compute your primary insurance amount using the applicable
percentage given below instead of the first percentage in appendix II of
this subpart if the applicable percentage below is larger than the
percentage specified in paragraph (c) of this section:
(i) For benefits payable for months before January 1989--
[[Page 78]]
------------------------------------------------------------------------
Years of coverage Percent
------------------------------------------------------------------------
29............................................................ 80
28............................................................ 70
27............................................................ 60
26............................................................ 50
------------------------------------------------------------------------
(ii) For benefits payable for months after December 1988--
------------------------------------------------------------------------
Years of coverage Percent
------------------------------------------------------------------------
29............................................................ 85
28............................................................ 80
27............................................................ 75
26............................................................ 70
25............................................................ 65
24............................................................ 60
23............................................................ 55
22............................................................ 50
21............................................................ 45
------------------------------------------------------------------------
(2) If you later earn additional year(s) of coverage, we will
recompute your primary insurance amount, effective with January of the
following year.
(e) Exceptions. The computations in paragraph (c) of this section do
not apply in the following situations:
(1) Payments made under the Railroad Retirement Act are not
considered to be a pension from noncovered employment for the purposes
of this section. See subpart O of this part for a discussion of railroad
retirement benefits.
(2) You were entitled before 1986 to disability insurance benefits
in any of the 12 months before you reach age 62 or again become
disabled. (See Sec. 404.251 for the appropriate computation.)
(3) You were a Federal employee performing service on January 1,
1984 to which Social Security coverage was extended on that date solely
by reason of the amendments made by section 101 of the Social Security
Amendments of 1983.
(4) You were an employee of a nonprofit organization who was exempt
from Social Security coverage on December 31, 1983 unless you were
previously covered under a waiver certificate which was terminated prior
to that date..
(5) You have 30 years of coverage as defined in the column headed
``Alternate Computation Under Sec. 404.213(d)'' in appendix IV of this
subpart.
(6) Your survivors are entitled to benefits on your record of
earnings. (After your death, we will recompute the primary insurance
amount to nullify the effect of any monthly pension, based in whole or
in part on noncovered employment, to which you had been entitled.)
(7) For benefits payable for months after December 1994, payments by
the social security system of a foreign country which are based on a
totalization agreement between the United States and that country are
not considered to be a pension from noncovered employment for purposes
of this section. See subpart T of this part for a discussion of
totalization agreements.
(8) For benefits payable for months after December 1994, the
computations in paragraph (c) do not apply in the case of an individual
whose entitlement to U.S. social security benefits results from a
totalization agreement between the United States and a foreign country.
(9) For benefits payable for months after December 1994, you are
eligible after 1985 for monthly periodic benefits based wholly on
service as a member of a uniformed service, including inactive duty
training.
(f) Entitlement to a totalization benefit and a pension based on
noncovered employment. If, before January 1995, you are entitled to a
totalization benefit and to a pension based on noncovered employment
that is not covered by a totalization agreement, we count your coverage
from a foreign country with which the United States (U.S.) has a
totalization agreement and your U.S. coverage to determine if you meet
the requirements for the modified computation in paragraph (d) of this
section or the exception in paragraph (e)(5) of this section.
(1) Where the amount of your totalization benefit will be determined
using a computation method that does not consider foreign earnings (see
Sec. 404.1918), we will find your total years of coverage by adding
your--
(i) Years of coverage from the agreement country (quarters of
coverage credited under Sec. 404.1908 divided by four) and
(ii) Years of U.S. coverage as defined for the purpose of computing
the special minimum primary insurance amount under Sec. 404.261.
[[Page 79]]
(2) Where the amount of your totalization benefit will be determined
using a computation method that does consider foreign earnings, we will
credit your foreign earnings to your U.S. earnings record and then find
your total years of coverage using the method described in Sec. 404.261.
[52 FR 47916, Dec. 17, 1987, as amended at 55 FR 21382, May 24, 1990; 57
FR 22429, May 28, 1992; 60 FR 17444, Apr. 6, 1995; 60 FR 56513, Nov. 9,
1995]
Average-Monthly-Wage Method of Computing Primary Insurance Amounts
Sec. 404.220 Average-monthly-wage method.
(a) Who is eligible for this method. You must before 1979, reach age
62, become disabled or die to be eligible for us to compute your primary
insurance amount under the average-monthly-wage method. Also, as
explained in Sec. 404.230, if you reach age 62 after 1978 but before
1984, you are eligible to have your primary insurance amount computed
under a modified average-monthly-wage method if it is to your advantage.
Being eligible for either the average-monthly-wage method or the
modified average-monthly-wage method does not preclude your eligibility
under the old-start method described in Secs. 404.240 through 404.242.
(b) Steps in computing your primary insurance amount under the
average-monthly-wage method. We follow these three major steps in
computing your primary insurance amount under the average-monthly-wage
method:
(1) First, we find your average monthly wage, as described in
Sec. 404.221;
(2) Second, we look at the benefit table in appendix III; and
(3) Then we find your primary insurance amount in the benefit table,
as described in Sec. 404.222.
(4) Finally, we apply any automatic cost-of-living or ad hoc
increases that became effective in or after the year you reached age 62,
or became disabled, or died before age 62, as explained in Secs. 404.270
through 404.277.
Sec. 404.221 Computing your average monthly wage.
(a) General. Under the average-monthly-wage method, your social
security earnings are averaged over the length of time you can
reasonably have been expected to have worked under social security after
1950 (or after you reached age 21, if later).
(b) Which of your earnings may be used in computing your average
monthly wage. (1) In computing your average monthly wage, we consider
all the wages, compensation, self-employment income, and deemed military
wage credits that are creditable to you for social security purposes.
(The maximum amounts creditable are explained in Secs. 404.1047 and
404.1096 of this part.)
(2) We use your earnings in your computation base years in computing
your average monthly wage. All years after 1950 up to (but not
including) the year you become entitled to old-age or disability
insurance benefits, or through the year you die if you had not been
entitled to old-age or disability benefits, are computation base years
for you. Years after the year you die may not be used as computation
base years even if you have earnings credited to you in them. However,
years beginning with the year you become entitled to benefits may be
used for benefits beginning with the following year if using them would
give you a higher primary insurance amount. Years wholly within a period
of disability are not computation base years unless your primary
insurance amount would be higher if they were. In such situations, we
count all the years during the period of disability, even if you had no
earnings in some of them.
(c) Number of years to be considered in computing your average
monthly wage. To find the number of years to be used in computing your
average monthly wage--
(1) We count the years beginning with 1951 or (if later) the year
you reached age 22 and ending with the year before you reached age 62,
or became disabled, or died before age 62. Any part of a year--or years-
-in which you were disabled, as defined in Sec. 404.1505, is not counted
unless doing so
[[Page 80]]
would give you a higher average monthly wage. In that case, we count all
the years during the period of disability, even if you had no earnings
in some of those years. These are your elapsed years. (If you are a male
and you reached age 62 before 1975, see paragraph (c)(2) of this section
for the rules on finding your elapsed years.)
(2) If you are a male and you reached age 62 in--
(i) 1972 or earlier, we count the years beginning with 1951 and
ending with the year before you reached age 65, or became disabled or
died before age 65 to find your elapsed years;
(ii) 1973, we count the years beginning with 1951 and ending with
the year before you reached age 64, or became disabled or died before
age 64 to find your elapsed years; or
(iii) 1974, we count the years beginning with 1951 and ending with
the year before you reached age 63, became disabled, or died before age
63 to find your elapsed years.
(3) Then we subtract 5 from the number of your elapsed years. This
is the number of your benefit computation years; we use the same number
of your computation base years in computing your average monthly wage.
For benefit computation years, we use the years with the highest amounts
of earnings, but they may include years of no earnings. You cannot have
fewer than 2 benefit computation years.
(d) Your average monthly wage. After we find your benefit
computation years, we compute your average monthly wage by--
(1) Totalling your creditable earnings in your benefit computation
years;
(2) Dividing the total by the number of months in your benefit
computation years; and
(3) Rounding the quotient to the next lower whole dollar if not
already a multiple of $1.
Example: Mr. B reaches age 62 and becomes entitled to old-age
insurance benefits in August 1978. He had no social security earnings
before 1951 and his year-by-year social security earnings after 1950 are
as follows:
------------------------------------------------------------------------
Year Earnings
------------------------------------------------------------------------
1951....................................................... $2,700
1952....................................................... 2,700
1953....................................................... 3,400
1954....................................................... 3,100
1955....................................................... 4,000
1956....................................................... 4,100
1957....................................................... 4,000
1958....................................................... 4,200
1959....................................................... 4,800
1960....................................................... 4,800
1961....................................................... 4,800
1962....................................................... 4,800
1963....................................................... 4,800
1964....................................................... 1,500
1965....................................................... 0
1966....................................................... 0
1967....................................................... 0
1968....................................................... 3,100
1969....................................................... 5,200
1970....................................................... 7,100
1971....................................................... 7,800
1972....................................................... 8,600
1973....................................................... 8,900
1974....................................................... 9,700
1975....................................................... 10,100
1976....................................................... 10,800
1977....................................................... 11,900
------------------------------------------------------------------------
We first find Mr. B's elapsed years, which are the 27 years 1951-
1977. We subtract 5 from his 27 elapsed years to find that we must use
22 benefit computation years in computing his average monthly wage. His
computation base years are 1951-1977, which are the years after 1950 and
prior to the year he became entitled. This means that we will use his 22
computation base years with the highest earnings to compute his average
monthly wage. Thus, we exclude the years 1964-1967 and 1951.
We total his earnings in his benefit computation years and get
$132,700. We then divide that amount by the 264 months in his 22 benefit
computation years and find his average monthly wage to be $502.65, which
is rounded down to $502.
(e) ``Deemed'' average monthly wage for certain deceased veterans of
World War II. Certain deceased veterans of World War II are ``deemed''
to have an average monthly wage of $160 (see Secs. 404.1340 through
404.1343 of this part) unless their actual average monthly wage, as
found in the method described in paragraphs (a) through (d) of this
section is higher.
Sec. 404.222 Use of benefit table in finding your primary insurance amount from your average monthly wage.
(a) General. We find your primary insurance amount under the
average-monthly-wage method in the benefit table in appendix III.
(b) Finding your primary insurance amount from benefit table. We
find your average monthly wage in column III of the table. Your primary
insurance amount appears on the same line in
[[Page 81]]
column IV (column II if you are entitled to benefits for any of the 12
months preceding the effective month in column IV). As explained in
Sec. 404.212(e), there is a minimum primary insurance amount of $122
payable for persons who became eligible or died after 1978 and before
January 1982. There is also an alternative minimum of $121.80 (before
the application of cost-of-living increases) for members of this group
whose benefits were computed from the benefit table in effect in
December 1978 on the basis of either the old-start computation method in
Secs. 404.240 through 404.242 or the guaranteed alternative computation
method explained in Secs. 404.230 through 404.233. However, as can be
seen from the extended table in appendix III, the lowest primary
insurance amount under this method is now $1.70 for individuals for whom
the minimum benefit has been repealed.
Example: In the example in Sec. 404.221(d), we computed Mr. B's
average monthly wage to be $502. We refer to the December 1978 benefit
table in appendix III. Then we find his average monthly wage in column
III of the table. Reading across, his primary insurance amount is on the
same line in column IV and is $390.50. A 9.9 percent automatic cost-of-
living benefit increase was effective for June 1979, increasing Mr. B's
primary insurance amount to $429.20, as explained in Secs. 404.270
through 404.277. Then, we increase the $429.20 by the 14.3 percent June
1980 cost-of-living benefit increase and get $490.60, and by the 11.2
percent June 1981 increase to get $545.60.
[47 FR 30734, July 15, 1982, as amended at 48 FR 46142, Oct. 11, 1983]
Guaranteed Alternative for People Reaching Age 62 After 1978 but Before
1984
Sec. 404.230 Guaranteed alternative.
(a) General. If you reach age 62 after 1978 but before 1984, we
compute your primary insurance amount under a modified average-monthly-
wage method as a guaranteed alternative to your primary insurance amount
computed under the average-indexed-monthly-earnings method. We also
compute your primary insurance amount under the old-start method
(Secs. 404.240 through 404.242) and under the special rules for a person
who had a period of disability (Secs. 404.250 through 404.252), if you
are eligible. In Secs. 404.231 through 404.233, we explain the average-
monthly-wage method as the alternative to the average-indexed-monthly-
earnings method.
(b) Restrictions. (1) To qualify for this guaranteed-alternative
computation, you must have some creditable earnings before 1979.
(2) You or your survivors do not qualify for a guaranteed-
alternative computation if you were eligible (you attained age 62,
became disabled, or died before age 62) for social security benefits
based on your own earnings at any time before 1979 unless--
(i) Those benefits were disability insurance benefits which were
terminated because you recovered from your disability or you engaged in
substantial gainful activity; and
(ii) You spent at least 12 months without being eligible for
disability benefits again.
(3) This guaranteed alternative method applies only to old-age
insurance benefits and to survivor benefits where the deceased worker
reached the month of his or her 62nd birthday after 1978 but before 1984
and died after reaching age 62.
Sec. 404.231 Steps in computing your primary insurance amount under the guaranteed alternative--general.
If you reach age 62 after 1978 but before 1984, we follow three
major steps in finding your guaranteed alternative:
(a) First, we compute your average monthly wage, as described in
Sec. 404.232;
(b) Second, we find the primary insurance amount that corresponds to
your average monthly wage in the benefit table in appendix III.
(c) Then we apply any automatic cost-of-living or ad hoc increases
in primary insurance amounts that have become effective in or after the
year you reached age 62.
Sec. 404.232 Computing your average monthly wage under the guaranteed alternative.
(a) General. With the exception described in paragraph (b) of this
section, we follow the rules in Sec. 404.221 to compute your average
monthly wage.
(b) Exception. We do not use any year after the year you reach age
61 as a computation base year in computing
[[Page 82]]
your average monthly wage for purposes of the guaranteed alternative.
Sec. 404.233 Adjustment of your guaranteed alternative when you become entitled after age 62.
(a) If you do not become entitled to benefits at the time you reach
age 62, we adjust the guaranteed alternative computed for you under
Sec. 404.232 as described in paragraph (b) of this section.
(b) To the primary insurance amount computed under the guaranteed
alternative, we apply any automatic cost-of-living or ad hoc increases
in primary insurance amounts that go into effect in the year you reach
age 62 and in years up through the year you become entitled to benefits.
(See appendix VI for a list of the percentage increases in primary
insurance amounts since December 1978.)
Example: Mr. C reaches age 62 in January 1981 and becomes entitled
to old-age insurance benefits in April 1981. He had no social security
earnings before 1951 and his year-by-year social security earnings after
1950 are as follows:
------------------------------------------------------------------------
Year Earnings
------------------------------------------------------------------------
1951....................................................... $3,600
1952....................................................... 3,600
1953....................................................... 3,600
1954....................................................... 3,600
1955....................................................... 4,200
1956....................................................... 4,200
1957....................................................... 4,200
1958....................................................... 4,200
1959....................................................... 4,800
1960....................................................... 4,800
1961....................................................... 4,800
1962....................................................... 4,800
1963....................................................... 4,800
1964....................................................... 4,800
1965....................................................... 4,800
1966....................................................... 6,600
1967....................................................... 6,600
1968....................................................... 7,800
1969....................................................... 7,800
1970....................................................... 7,800
1971....................................................... 7,800
1972....................................................... 9,000
1973....................................................... 10,800
1974....................................................... 13,200
1975....................................................... 14,100
1976....................................................... 15,300
1977....................................................... 16,500
1978....................................................... 17,700
1979....................................................... 22,900
1980....................................................... 25,900
1981....................................................... 29,700
------------------------------------------------------------------------
Mr. C's elapsed years are the 30 years 1951 through 1980. We
subtract 5 from his 30 elapsed years to find that we must use 25 benefit
computation years in computing his average monthly wage. His computation
base years are 1951 through 1980 which are years after 1950 up to the
year he reached age 62. We will use his 25 computation base years with
the highest earnings to compute his average monthly wage. Thus, we
exclude the years 1951-1955. The year 1981 is not a base year for this
computation.
We total his earnings in his benefit computation years and get
$236,000. We then divide by the 300 months in his 25 benefit computation
years, and find his average monthly wage to be $786.66 which is rounded
down to $786.
The primary insurance amount in the benefit table in appendix III
that corresponds to Mr. C's average monthly wage is $521.70. The 9.9
percent and 14.3 percent cost of living increase for 1979 and 1980,
respectively, are not applicable because Mr. C reached age 62 in 1981.
The average indexed monthly earnings method described in
Secs. 404.210 through 404.212 considers all of the earnings after 1950,
including 1981 earnings which, in Mr. C's case cannot be used in the
guaranteed alternative method. Mr. C's primary insurance amount under
the average indexed earnings method is $548.40. Therefore, his benefit
is based upon the $548.40 primary insurance amount. As in the guaranteed
alternative method, Mr. C is not entitled to the cost of living
increases for years before the year he reaches age 62.
Old-Start Method of Computing Primary Insurance Amounts
Sec. 404.240 Old-start method--general.
If you had all or substantially all your social security earnings
before 1951, your primary insurance amount computed under the ``1977
simplified old-start'' method may be higher than any other primary
insurance amount computed for you under any other method for which you
are eligible. As explained in Sec. 404.242, if you reach age 62 after
1978, your primary insurance amount computed under the old-start method
is used, for purposes of the guaranteed alternative described in
Sec. 404.230, if the old-start primary insurance amount is higher than
the one found under the average-monthly-wage method. We may use a
modified computation, as explained in Sec. 404.243, if you are entitled
to a pension based on your employment which was not covered by Social
Security.
[47 FR 30734, July 15, 1982, as amended at 52 FR 47917, Dec. 17, 1987]
[[Page 83]]
Sec. 404.241 1977 simplified old-start method.
(a) Who is qualified. To qualify for the old-start computation, you
must meet the conditions in paragraphs (a) (1), (2), or (3) of this
section:
(1) You must--
(i) Have one ``quarter of coverage'' (see Secs. 404.101 and 404.110
of this part) before 1951;
(ii) Have attained age 21 after 1936 and before 1950, or attained
age 22 after 1950 and earned fewer than 6 quarters of coverage after
1950;
(iii) Have not had a period of disability which began before 1951,
unless it can be disregarded, as explained in Sec. 404.320 of this part;
and,
(iv) Have attained age 62, become disabled, or died, after 1977.
(2)(i) You or your survivor becomes entitled to benefits for June
1992 or later;
(ii) You do not meet the conditions in paragraph (a)(1) of this
section, and,
(iii) No person is entitled to benefits on your earnings record in
the month before the month you or your survivor becomes entitled to
benefits.
(3) A recomputation is first effective for June 1992 or later based
on your earnings for 1992 or later.
(b) Steps in old-start computation. (1) First, we allocate your
earnings during the period 1937-1950 as described in paragraph (c) of
this section.
(2) Next, we compute your average monthly wage, as described in
paragraph (d) of this section.
(3) Next, we apply the old-start formula to your average monthly
wage, as described in paragraph (e)(1) of this section.
(4) Next, we apply certain increments to the amount computed in step
(3), as described in paragraph (e)(2) of this section.
(5) Next, we find your primary insurance amount in the benefit table
in appendix III, as described in paragraph (f)(1) of this section.
(6) Then, we apply automatic cost-of-living or ad hoc increases in
primary insurance amounts to the primary insurance amount found in step
(5), as described in paragraph (f)(2) of this section.
(c) Finding your computation base years under the old-start method.
(1) Instead of using your actual year-by-year earnings before 1951, we
find your computation base years for 1937-1950 (and the amount of
earnings for each of them) by allocating your total 1937-1950 earnings
among the years before 1951 under the following procedure:
(i) If you reached age 21 before 1950 and your total 1937-1950
earnings are not more than $3,000 times the number of years after the
year you reached age 20 and before 1951 (a maximum of 14 years), we
allocate your earnings equally among those years, and those years are
your computation base years before 1951.
(ii) If you reached age 21 before 1950 and your total 1937-1950
earnings are more than $3,000 times the number of years after the year
you reached age 20 and before 1951, we allocate your earnings at the
rate of $3,000 per year for each year after you reached age 20 and
before 1951 up to a maximum of 14 years. We credit any remainder in
reverse order to years before age 21 in $3,000 increments and any amount
left over of less than $3,000 to the year before the earliest year to
which we credited $3,000. No more than $42,000 may be credited in this
way and to no more than 14 years. Those years are your computation base
years before 1951.
(iii) If you reached age 21 in 1950 or later and your total pre-1951
earnings are $3,000 or less, we credit the total to the year you reached
age 20 and that year is your pre-1951 computation base year.
(iv) If you reached age 21 in 1950 or later and your total pre-1951
earnings are more than $3,000, we credit $3,000 to the year you reached
age 20 and credit the remainder to earlier years (or year) in blocks of
$3,000 in reverse order. We credit any remainder of less than $3,000 to
the year before the earliest year to which we had credited $3,000. No
more than $42,000 may be credited in this way and to no more than 14
years. Those years are your computation base years before 1951.
(v) If you die before 1951, we allocate your 1937-1950 earnings
under paragraphs (c)(1) (i) through (iv), except that in determining the
number of
[[Page 84]]
years, we will use the year of death instead of 1951. If you die before
you attain age 21, the number of years in the period is equal to 1.
(vi) For purposes of paragraphs (c)(1) (i) through (v), if you had a
period of disability which began before 1951, we will exclude the years
wholly within a period of disability in determining the number of years.
(2)(i) All years after 1950 up to (but not including) the year you
become entitled to old-age insurance or disability insurance benefits
(or through the year you die if you had not become entitled to old-age
or disability benefits) are also computation base years for you.
(ii) Years wholly within a period of disability are not computation
base years unless your primary insurance amount would be higher if they
were. In such situations, we count all the years during the period of
disability, even if you had no earnings in some of them.
Example: Ms. D reaches age 62 in June 1979. Her total 1937-1950
social security earnings are $40,000 and she had social security
earnings of $7,100 in 1976 and $6,300 in 1977. Since she reaches age 62
after 1978, we first compute her primary insurance amount under the
average-indexed-monthly-earnings method (Secs. 404.210 through 404.212).
As of June 1981, it is $170.50, which is the minimum primary insurance
amount applicable, because her average indexed monthly earnings of $50
would yield only $56.50 under the benefit formula. Ms. D reached age 62
after 1978 but before 1984 and her guaranteed alternative under the
average-monthly-wage method as of June 1981 is $170.30, which is the
minimum primary insurance amount based on average monthly wages of $48.
(These amounts include the 9.9, the 14.3, and the 11.2 percent cost-of-
living increases effective June 1979, June 1980, and June 1981
respectively.)
Ms. D is also eligible for the old-start method. We first allocate
$3,000 of her 1937-1950 earnings to each of her 13 computation base
years starting with the year she reached age 21 (1938) and ending with
1950. The remaining $1,000 is credited to the year she reached age 20.
Ms. D, then, has 42 computation base years (14 before 1951 and 28 after
1950).
(d) Computing your average monthly wage under the old-start method.
(1) First, we count your elapsed years, which are the years beginning
with 1937 (or the year you reach 22, if later) and ending with the year
before you reach age 62, or become disabled or die before age 62. (See
Sec. 404.211(e)(1) for the rule on how we treat years wholly or
partially within a period of disability.)
(2) Next, we subtract 5 from the number of your elapsed years, and
this is the number of computation years we must use. We then choose this
number of your computation base years in which you had the highest
earnings. These years are your benefit computation years. You must have
at least 2 benefit computation years.
(3) Then we compute your average monthly wage by dividing your total
creditable earnings in your benefit computation years by the number of
months in these years and rounding the quotient to the next lower dollar
if not already a multiple of $1.
(e) Old-start computation formula. We use the following formula to
compute your primary insurance benefit, which we will convert to your
primary insurance amount:
(1) We take 40 percent of the first $50 of your average monthly
wage, plus 10 percent of the next $200 of your average monthly wage up
to a total average monthly wage of $250. (We do not use more than $250
of your average monthly wage.)
(2) We increase the amount found in paragraph (e)(1) of this section
by 1 percent for each $1,650 in your pre-1951 earnings, disregarding any
remainder less than $1,650. We always increase the amount by at least 4
of these 1 percent increments but may not increase it by more than 14 of
them.
(f) Finding your primary insurance amount under the old-start
method. (1) In column I of the benefit table in appendix III we locate
the amount (the primary insurance benefit) computed in paragraph (e) of
this section and find the corresponding primary insurance amount on the
same line in column IV of the table.
(2) We increase that amount by any automatic cost-of-living or ad
hoc increases in primary insurance amounts effective since the beginning
of the year in which you reached age 62, or became disabled or died
before age 62. (See Secs. 404.270 through 404.277.)
Example: From the example in paragraph (c)(2) of this section, we
see that Ms. D's elapsed years total 40 (number of years at ages 22 to
61, both inclusive). Her benefit
[[Page 85]]
computation years, therefore, must total 35. Since she has only 16 years
of actual earnings, we must include 19 years of zero earnings in this
old-start computation to reach the required 35 benefit computation
years.
We next divide her total social security earnings ($53,400) by the
420 months in her benefit computation years and find her average monthly
wage to be $127.
We apply the old-start computation formula to Ms. D's average
monthly wage as follows: 40 percent of the first $50 of her average
monthly wage ($20.00), plus 10 percent of the remaining $77 of her
average monthly wage ($7.70), for a total of $27.70.
We then apply 14 1-percent increments to that amount, increasing it
by $3.88 to $31.58. We find $31.58 in column I of the December 1978
benefit table in appendix III and find her primary insurance amount of
$195.90 on the same line in column IV. We apply the 9.9 percent
automatic cost-of-living increase effective for June 1979 to $195.90 and
get an old-start primary insurance amount of $215.30 which we then
increase to $246.10 to reflect the 14.3 percent cost-of-living increase
effective for June 1980, and to $273.70 to reflect the June 1981
increase. Since that primary insurance amount is higher than the $153.10
primary insurance amount computed under the average-monthly-wage method
and the $153.30 primary insurance amount computed under the average-
indexed-monthly-earnings method, we base Ms. D's benefits (and those of
her family) on $215.30 (plus later cost-of-living increases), which is
the highest primary insurance amount.
[47 FR 30734, July 15, 1982, as amended at 55 FR 21382, May 24, 1990; 57
FR 23157, June 2, 1992]
Sec. 404.242 Use of old-start primary insurance amount as guaranteed alternative.
If your primary insurance amount as computed under the old-start
method is higher than your primary insurance amount computed under the
average-monthly-wage method, your old-start primary insurance amount
will serve as the guaranteed alternative to your primary insurance
amount computed under the average-indexed-monthly-earnings method, as
described in Sec. 404.230. However, earnings that you have in or after
the year you reach age 62, or become disabled or die before age 62 are
not used in an old-start computation in this situation.
Sec. 404.243 Computation where you are eligible for a pension based on noncovered employment.
The provisions of Sec. 404.213 are applicable to computations under
the old-start method, except for paragraphs (c) (1) and (2) and (d) of
that section. Your primary insurance amount will be whichever of the
following two amounts is larger:
(a) One-half the primary insurance amount computed according to
Sec. 404.241 (before application of the cost of living amount); or
(b) The primary insurance amount computed according to Sec. 404.241
(before application of the cost of living amount), minus one-half the
portion of your monthly pension which is due to noncovered work after
1956 and for which you were eligible in the first month you became
eligible for Social Security benefits. If the result is not a multiple
of $0.10, we will round to the next lower multiple of $0.10. (See
Sec. 404.213 (b)(3) if you are not eligible for a monthly pension in the
first month you are entitled to Social Security benefits.) To determine
the portion of your pension which is due to noncovered work after 1956,
we consider the total number of years of work used to compute your
pension and the percentage of those years which are after 1956 and in
which your employment was not covered. We take that percentage of your
total pension as the amount which is due to your noncovered work after
1956.
[52 FR 47918, Dec. 17, 1987]
Special Computation Rules for People Who Had a Period of Disability
Sec. 404.250 Special computation rules for people who had a period of disability.
If you were disabled at some time in your life, received disability
insurance benefits, and those benefits were terminated because you
recovered from your disability or because you engaged in substantial
gainful activity, special rules apply in computing your primary
insurance amount when you become eligible after 1978 for old-age
insurance benefits or if you become re-entitled to disability insurance
benefits or die.
[[Page 86]]
(For purposes of Secs. 404.250 through 404.252, we use the term second
entitlement to refer to this situation.) There are two sets of rules:
(a) Second entitlement within 12 months. If 12 months or fewer pass
between the last month for which you received a disability insurance
benefit and your second entitlement, see the rules in Sec. 404.251; and
(b) Second entitlement after more than 12 months. If more than 12
months pass between the last month for which you received a disability
insurance benefit and your second entitlement, see the rules in
Sec. 404.252.
Sec. 404.251 Subsequent entitlement to benefits less than 12 months after entitlement to disability benefits ended.
(a) Disability before 1979; second entitlement after 1978. In this
situation, we compute your second-entitlement primary insurance amount
by selecting the highest of the following:
(1) The primary insurance amount to which you were entitled when you
last received a benefit, increased by any automatic cost-of-living or ad
hoc increases in primary insurance amounts that took effect since then;
(2) The primary insurance amount resulting from a recomputation of
your primary insurance amount, if one is possible; or
(3) The primary insurance amount computed for you as of the time of
your second entitlement under any method for which you are qualified at
that time, including the average-indexed-monthly-earnings method if the
previous period of disability is disregarded.
(b) Disability and second entitlement after 1978. In this situation,
we compute your second-entitlement primary insurance amount by selecting
the highest of the following:
(1) The primary insurance amount to which you were entitled when you
last received a benefit, increased by any automatic cost-of-living or ad
hoc increases in primary insurance amount that took effect since then;
(2) The primary insurance amount resulting from a recomputation of
your primary insurance amount, if one is possible (this recomputation
may be under the average-indexed-monthly-earnings method only); or
(3) The primary insurance amount computed for you as of the time of
your second entitlement under any method (including an old-start method)
for which you are qualifed at that time.
(c) Disability before 1986; second entitlement after 1985. When
applying the rule in paragraph (b)(3) of this section, we must consider
your receipt of a monthly pension based on noncovered employment. (See
Sec. 404.213). However, we will disregard your monthly pension if you
were previously entitled to disability benefits before 1986 and in any
of the 12 months before your second entitlement.
[47 FR 30734, July 15, 1982, as amended at 52 FR 47918, Dec. 17, 1987]
Sec. 404.252 Subsequent entitlement to benefits 12 months or more after entitlement to disability benefits ended.
In this situation, we compute your second-entitlement primary
insurance amount by selecting the higher of the following:
(a) New primary insurance amount. The primary insurance amount
computed as of the time of your second entitlement under any of the
computation methods for which you qualify at the time of your second
entitlement; or
(b) Previous primary insurance amount. The primary insurance amount
to which you were entitled in the last month for which you were entitled
to a disability insurance benefit.
Special Minimum Primary Insurance Amounts
Sec. 404.260 Special minimum primary insurance amounts.
Regardless of the method we use to compute your primary insurance
amount, if the special minimum primary insurance amount described in
Sec. 404.261 is higher, then your benefits (and those of your dependents
or survivors) will be based on the special minimum primary insurance
amount. Special minimum primary insurance amounts are not based on a
worker's average earnings, as are primary insurance amounts computed
under other
[[Page 87]]
methods. Rather, the special minimum primary insurance amount is
designed to provide higher benefits to people who worked for long
periods in low-paid jobs covered by social security.
Sec. 404.261 Computing your special minimum primary insurance amount.
(a) Years of coverage. (1) The first step in computing your special
minimum primary insurance amount is to find the number of your years of
coverage, which is the sum of--
(i) The quotient found by dividing your total creditable social
security earnings during the period 1937-1950 by $900, disregarding any
fractional remainder; plus
(ii) The number of your computation base years after 1950 in which
your social security earnings were at least the amounts shown in
appendix IV. (Computation base years mean the same here as in other
computation methods discussed in this subpart.)
(2) You must have at least 11 years of coverage to qualify for a
special minimum primary insurance amount computation. However, special
minimum primary insurance amounts based on little more than 10 years of
coverage are usually lower than the regular minimum benefit that was in
effect before 1982 (see Secs. 404.212(e) and 404.222(b) of this part).
In any situation where your primary insurance amount computed under
another method is higher, we use that higher amount.
(b) Computing your special minimum primary insurance amount. (1)
First, we subtract 10 from your years of coverage and multiply the
remainder (at least 1 and no more than 20) by $11.50;
(2) Then we increase the amount found in paragraph (b)(1) of this
section by any automatic cost-of-living or ad hoc increases that have
become effective since December 1978 to find your special minimum
primary insurance amount. See appendix V for the applicable table, which
includes the 9.9 percent cost-of-living increase that became effective
June 1979, the 14.3 percent increase that became effective June 1980,
and the 11.2 percent increase that became effective June 1981.
Example: Ms. F, who attained age 62 in January 1979, had $10,000 in
total social security earnings before 1951 and her post-1950 earnings
are as follows:
------------------------------------------------------------------------
Year Earnings
------------------------------------------------------------------------
1951....................................................... $1,100
1952....................................................... 950
1953....................................................... 0
1954....................................................... 1,000
1955....................................................... 1,100
1956....................................................... 1,200
1957....................................................... 0
1958....................................................... 1,300
1959....................................................... 0
1960....................................................... 1,300
1961....................................................... 0
1962....................................................... 1,400
1963....................................................... 1,300
1964....................................................... 0
1965....................................................... 500
1966....................................................... 700
1967....................................................... 650
1968....................................................... 900
1969....................................................... 1,950
1970....................................................... 2,100
1971....................................................... 2,000
1972....................................................... 1,500
1973....................................................... 2,700
1974....................................................... 2,100
1975....................................................... 2,600
1976....................................................... 3,850
1977....................................................... 4,150
1978....................................................... 0
------------------------------------------------------------------------
Her primary insurance amount under the average-indexed-monthly-
earnings method as of June 1981 is $240.40 (based on average indexed
monthly earnings of $229). Her guaranteed-alternative primary insurance
amount under the average-monthly-wage method as of June 1981 is $255.80
(based on average monthly wages of $131).
However, Ms. F has enough earnings before 1951 to allow her 11 years
of coverage before 1951 ($10,000/$900=11, plus a remainder, which we
drop). She has sufficient earnings in 1951-52, 1954-56, 1958, 1960,
1962-63, 1969-71, 1973, and 1976-77 to have a year of coverage for each
of those years. She thus has 15 years of coverage after 1950 and a total
of 26 years of coverage. We subtract 10 from her years of coverage,
multiply the remainder (16) by $11.50 and get $184.00. We then apply the
June 1979, June 1980, and June 1981 automatic cost-of-living increases
(9.9 percent, 14.3 percent, and 11.2 percent, respectively) to that
amount to find her special minimum primary insurance amount of $202.30
effective June 1979, $231.30 effective June 1980, and $257.30 effective
June 1981. (See appendices V and VI.) Since her special minimum primary
insurance amount is higher than the primary insurance amounts computed
for her under the other methods described in this subpart for which she
is eligible, her benefits (and those of her family) are based on the
special minimum primary insurance amount.
[47 FR 30734, July 15, 1982, as amended at 48 FR 46143, Oct. 11, 1983]
[[Page 88]]
Cost-of-Living Increases
Sec. 404.270 Cost-of-living increases.
Your primary insurance amount may be automatically increased each
December so it keeps up with rises in the cost of living. These
automatic increases also apply to other benefit amounts, as described in
Sec. 404.271.
[47 FR 30734, July 15, 1982, as amended at 51 FR 12603, Apr. 14, 1986]
Sec. 404.271 When automatic cost-of-living increases apply.
Besides increases in the primary insurance amounts of current
beneficiaries, automatic cost-of-living increases also apply to--
(a) The benefits of certain uninsured people age 72 and older (see
Sec. 404.380);
(b) The special minimum primary insurance amounts (described in
Secs. 404.260 through 404.261) of current and future beneficiaries;
(c) The primary insurance amounts of people who after 1978 become
eligible for benefits or die before becoming eligible (beginning with
December of the year they become eligible or die), although certain
limitations are placed on the automatic adjustment of the frozen minimum
primary insurance amount (as described in Sec. 404.277); and
(d) The maximum family benefit amounts in column V of the benefit
table in appendix III.
[47 FR 30734, July 15, 1982, as amended at 51 FR 12603, Apr. 14, 1986]
Sec. 404.272 Indexes we use to measure the rise in the cost-of-living.
(a) The bases. To measure increases in the cost-of-living for annual
automatic increase purposes, we use either:
(1) The revised Consumer Price Index (CPI) for urban wage earners
and clerical workers as published by the Department of Labor, or
(2) The average wage index (AWI), which is the average of the annual
total wages that we use to index (i.e., update) a worker's past earnings
when we compute his or her primary insurance amount (Sec. 404.211(c)).
(b) Effect of the OASDI fund ratio. Which of these indexes we use to
measure increases in the cost-of-living depends on the Old-Age,
Survivors, and Disability Insurance (OASDI) fund ratio.
(c) OASDI fund ratio for years after 1984. For purposes of cost-of-
living increases, the OASDI fund ratio is the ratio of the combined
assets in the Federal Old-Age and Survivors Insurance Trust Fund and the
Federal Disability Insurance Trust Fund (see section 201 of the Social
Security Act) on January 1 of a given year, to the estimated
expenditures from the Funds in the same year. The January 1 balance
consists of the assets (i.e., government bonds and cash) in the Federal
Old-Age and Survivors Insurance Trust Fund and the Federal Disability
Insurance Trust Fund, plus Federal Insurance Contributions Act (FICA)
and Self-Employment Contributions Act (SECA) taxes transferred to these
trust funds on January 1 of the given year, minus the outstanding
amounts (principal and interest) owed to the Federal Hospital Insurance
Trust Fund as a result of interfund loans. Estimated expenditures are
amounts we expect to pay from the Old-Age and Survivors Insurance and
the Disability Insurance Trust Funds during the year, including the net
amount that we pay into the Railroad Retirement Account, but excluding
principal repayments and interest payments to the Hospital Insurance
Trust Fund and transfer payments between the Old-Age and Survivors
Insurance and the Disability Insurance Trust Funds. The ratio as
calculated under this rule is rounded to the nearest 0.1 percent.
(d) Which index we use. We use the CPI if the OASDI fund ratio is
15.0 percent or more for any year from 1984 through 1988, and if the
ratio is 20.0 percent or more for any year after 1988. We use either the
CPI or the AWI, depending on which has the lower percentage increase in
the applicable measuring period (see Sec. 404.274), if the OASDI fund
ratio is less than 15.0 percent for any year from 1984 through 1988, and
if the ratio is less than 20.0 percent for any year after 1988. For
example, if the OASDI fund ratio for a year is 17.0 percent, the cost-
of-living increase effective December of that year will be based on the
CPI.
[51 FR 12603, Apr. 14, 1986]
[[Page 89]]
Sec. 404.273 When automatic cost-of-living increases are to be made.
We make automatic cost-of-living increases if the applicable index,
either the CPI or the AWI, rises by 3.0 percent or more over a specified
measuring period (see the rules in Sec. 404.274). If the cost-of-living
increase is to be based on an increase of 3.0 percent or more in the
CPI, the increase becomes effective in December of the year in which the
measuring period ends. If the increase is to be based on an increase of
3.0 percent or more in the AWI, the increase becomes effective in
December of the year after the year in which the measuring period ends.
[51 FR 12603, Apr. 14, 1986]
Sec. 404.274 Measuring the increase in the indexes.
(a) General. Depending on the OASDI fund ratio, we measure the rise
in one index or in both indexes during the applicable measuring period
(described in paragraphs (b) and (c) of this section) to determine
whether there will be an automatic cost-of-living increase and if so,
its amount.
(b) Measuring period based on CPI. For the increase effective
December 1984 and later years, the measuring period we use for finding
the amount of the CPI increase--
(1) Begins with--
(i) Any calendar quarter in which an ad hoc benefit increase is
effective; or, if later,
(ii) The third calendar quarter of any year in which the last
automatic increase became effective; and
(2) Ends with the third calendar quarter of the following year, but
only if the CPI has increased by at least 3.0 percent (after rounding to
the nearest one-tenth of one percent) since the beginning of the
measuring period. (If the CPI increase is less than 3.0 percent, we
extend the measuring period to the third quarter of the next year, doing
so repeatedly until the 3.0 percent level is reached.) If this measuring
period ends in a year after the year in which an ad hoc increase was
enacted into law or took effect, there can be no cost-of-living increase
based on this measuring period, and we will apply the rule in paragraph
(d) of this section.
(c) Measuring period based on AWI. The measuring period we use for
finding the amount of the AWI increase--
(1) Begins with--
(i) The calendar year before the year in which an ad hoc benefit
increase is effective; or, if later,
(ii) The calendar year before the year in which the last automatic
increase became effective; and
(2) Ends with the following year, but only if the AWI has increased
by at least 3.0 percent (after rounding to the nearest one-tenth of one
percent) in that one-year period. (If the AWI increase is less than 3.0
percent, we extend the measuring period to the next year, doing so
repeatedly until the 3.0 percent level is reached.) If this measuring
period ends in a year in which an ad hoc increase was enacted into law
or took effect, there can be no cost-of-living increase based on this
measuring period, and we will apply the rule in paragraph (d) of this
section.
(d) When no automatic cost-of-living increase is possible. No
automatic cost-of-living increase is possible for the calendar year that
immediately follows a year in which an ad hoc increase was enacted into
law or took effect. The measuring period for the next automatic cost-of-
living increase--
(1) Where the measuring period is based on the CPI,
(i) Begins with the calendar quarter in which the ad hoc increase
took effect; and
(ii) Ends with the third calendar quarter of the next year in which
the CPI has risen by at least 3.0 percent if an ad hoc increase was not
enacted or effective in the preceding year. (If the CPI increase is less
than 3.0 percent, or an ad hoc increase was enacted or effective in the
prior year, we extend the end of the measuring period to the third
quarter of the following year, doing so repeatedly until the 3.0 percent
level is reached in a year which does not immediately follow an ad hoc
increase year.)
(2) Where the measuring period is based on the AWI,
(i) Begins with the calendar year before the year in which the ad
hoc increase took effect; and
(ii) Ends with the next calendar year in which the AWI has increased
by at
[[Page 90]]
least 3.0 percent and in which an ad hoc increase is not enacted or
effective. (If the AWI increase is less than 3.0 percent, we extend the
end of the measuring period to the following year, doing so repeatedly
until the 3.0 percent level is reached in a year in which an ad hoc
increase is not enacted or effective.)
[51 FR 12603, Apr. 21, 1986]
Sec. 404.275 Amount of automatic cost-of-living increases.
(a) Based on CPI. When the average of the CPI for the three months
of the quarter ending the measuring period is at least 3.0 percent
higher than the average of the CPI for the three months of the quarter
in which the measuring period began, we compute an automatic cost-of-
living increase percentage to be effective beginning with benefits
payable for December of the year in which the measuring period ended. To
compute the average of the CPI, the three monthly CPI figures (which are
published to one decimal place) are added, the total is divided by 3,
and the result is rounded to the nearest 0.1. If the CPI is the
applicable index (see Sec. 404.272(d)), we apply the increase (rounded
to the nearest one-tenth of one percent) to the amounts described in
Sec. 404.271. We round the resulting amounts to the next lower multiple
of $0.10 if not already a multiple of $0.10.
(b) Based on AWI. When the AWI for the year which ends the measuring
period is at least 3.0 percent higher than the AWI for the year which
begins the measuring period and all the other conditions for an AWI-
based increase are met, that percent is the automatic cost-of-living
increase which is due beginning with benefits payable for December of
the year after the measuring period ended. If the AWI is the applicable
index (see Sec. 404.272(d)), we apply that percentage increase (rounded
to the nearest one-tenth of one percent) to the amounts described in
Sec. 404.271. We round the resulting amounts to the next lower multiple
of $0.10 if not already a multiple of $0.10.
(c) Additional increase. See Sec. 404.278 for the additional
increase which might be possible.
[51 FR 12604, Apr. 21, 1986]
Sec. 404.276 Publication of notice of increase.
When we determine that an automatic cost-of-living increase is due,
we publish in the Federal Register within 45 days of the end of the
measuring period used in finding the amount of the increase--
(a) The fact that an increase is due;
(b) The amount of the increase;
(c) The increased special minimum primary insurance amounts; and
(d) The range of increased maximum family benefits that corresponds
to the range of increased special minimum primary insurance amounts.
Sec. 404.277 When does the frozen minimum primary insurance amount increase because of cost-of-living adjustments?
(a) What is the frozen minimum primary insurance amount (PIA)? The
frozen minimum is a minimum PIA for certain workers whose benefits are
computed under the average-indexed-monthly-earnings method. Section
404.210(a) with Sec. 404.212(e) explains when the frozen minimum
applies.
(b) When does the frozen minimum primary insurance amount (PIA)
increase automatically? The frozen minimum PIA increases automatically
in every year in which you or your dependents or survivors are entitled
to benefits and a cost-of-living increase applies.
(c) When are automatic increases effective for old-age or disability
benefits based on a frozen minimum primary insurance amount (PIA)?
Automatic cost-of-living increases apply to your frozen minimum PIA
beginning with the earliest of:
(1) December of the year you become entitled to benefits and receive
at least a partial benefit;
(2) December of the year you reach full retirement age (as defined
in Sec. 404.409) if you are entitled to benefits in or before the month
you attain full retirement age, regardless of whether you receive at
least a partial benefit; or
(3) December of the year you become entitled to benefits if that is
after you attain full retirement age.
(d) When are automatic increases effective for survivor benefits
based on a frozen minimum primary insurance amount
[[Page 91]]
(PIA)? (1) Automatic cost-of-living increases apply to the frozen
minimum PIA used to determine survivor benefits in December of any year
in which your child(ren), your surviving spouse caring for your
child(ren), or your parent(s), are entitled to survivor benefits for at
least one month.
(2) Automatic cost-of-living increases apply beginning with December
of the earlier of:
(i) The year in which your surviving spouse or surviving divorced
spouse (as defined in Secs. 404.335 and 404.336) has attained full
retirement age (as defined in Sec. 404.409) and receives at least a
partial benefit, or
(ii) The year in which your surviving spouse or surviving disabled
spouse becomes entitled to benefits and receives at least a partial
benefit.
(3) Automatic cost-of-living increases are not applied to the frozen
minimum PIA in any year in which no survivor of yours is entitled to
benefits on your social security record.
[68 FR 4702, Jan. 30, 2003]
Sec. 404.278 Additional cost-of-living increase.
(a) General. In addition to the cost-of-living increase explained in
Sec. 404.275 for a given year, we will further increase the amounts in
Sec. 404.271 if--
(1) The OASDI fund ratio is more than 32.0 percent in the given year
in which a cost-of-living increase is due; and
(2) In any prior year, the cost-of-living increase was based on the
AWI as the lower of the CPI and AWI (or would have been based on the AWI
except that it was less than the required 3.0 percent increase).
(b) Measuring period for the additional increase--(1) Beginning. To
compute the additional increase, we begin with--
(i) In the case of certain uninsured beneficiaries age 72 and older
(see Sec. 404.380), the first calendar year in which a cost-of-living
adjustment was based on the AWI rather than the CPI;
(ii) For all other individuals and for maximum benefits payable to a
family, the year in which the insured individual became eligible for
old-age or disability benefits to which he or she is currently entitled,
or died before becoming eligible.
(2) Ending. The end of the measuring period is the year before the
first year in which a cost-of-living increase is due based on the CPI
and in which the OASDI fund ratio is more than 32.0 percent.
(c)Compounded percentage benefit increase. To compute the additional
cost-of-living increase, we must first compute the compounded percentage
benefit increase (CPBI) for both the cost-of-living increases that were
actually paid during the measuring period and for the increases that
would have been paid if the CPI had been the basis for all the
increases.
(d) Computing the CPBI. The computation of the CPBI is as follows--
(1) Obtain the sum of (i) 1.000 and (ii) the actual cost-of-living
increase percentage (expressed as a decimal) for each year in the
measuring period;
(2) Multiply the resulting amount for the first year by that for the
second year, then multiply that product by the amount for the third
year, and continue until the last amount has been multiplied by the
product of the preceding amounts;
(3) Subtract 1 from the last product;
(4) Multiply the remaining product by 100. The result is what we
call the actual CPBI.
(5) Substitute the cost-of-living increase percentage(s) that would
have been used if the increase(s) had been based on the CPI (for some
years, this will be the percentage that was used), and do the same
computations as in paragraphs (d) (1) through (4) of this section. The
result is what we call the assumed CPBI.
(e) Computing the additional cost-of-living increase. To compute the
precentage increase, we--
(1) Subtract the actual CPBI from the assumed CPBI;
(2) Add 100 to the actual CPBI;
(3) Divide the answer from paragraph (e)(1) of this section by the
answer from paragraph (e)(2) of this section, multiply the quotient by
100, and round to the nearest 0.1. The result is the additional increase
percentage, which we apply to the appropriate amount described in
Sec. 404.271 after that amount has been increased under Sec. 404.275 for
a given year. If that increased amount is
[[Page 92]]
not a multiple of $0.10, we will decrease it to the next lower multiple
of $0.10.
(f) Restrictions on paying an additional cost-of-living increase. We
will pay the additional increase to the extent necessary to bring the
benefits up to the level they would have been if they had been increased
based on the CPI. However, we will pay the additional increase only to
the extent payment will not cause the OASDI fund ratio to drop below
32.0 percent for the year after the year in which the increase is
effective.
[51 FR 12604, Apr. 21, 1986]
Recomputing Your Primary Insurance Amount
Sec. 404.280 Recomputations.
At times after you or your survivors become entitled to benefits, we
will recompute your primary insurance amount. Usually we will recompute
only if doing so will increase your primary insurance amount. However,
we will also recompute your primary insurance amount if you first became
eligible for old-age or disability insurance benefits after 1985, and
later become entitled to a pension based on your noncovered employment,
as explained in Sec. 404.213. There is no limit on the number of times
your primary insurance amount may be recomputed, and we do most
recomputations automatically. In the following sections, we explain:
(a) Why a recomputation is made (Sec. 404.281),
(b) When a recomputation takes effect (Sec. 404.282),
(c) Methods of recomputing (Secs. 404.283 and 404.284),
(d) Automatic recomputations (Sec. 404.285),
(e) Requesting a recomputation (Sec. 404.286),
(f) Waiving a recomputation (Sec. 404.287), and
(g) Recomputing when you are entitled to a pension based on
noncovered employment (Sec. 404.288).
[52 FR 47918, Dec. 17, 1987]
Sec. 404.281 Why your primary insurance amount may be recomputed.
(a) Earnings not included in earlier computation or recomputation.
The most common reason for recomputing your primary insurance amount is
to include earnings of yours that were not used in the first computation
or in an earlier recomputation, as described in paragraphs (c) through
(e) of this section. These earnings will result in a revised average
monthly wage or revised average indexed monthly earnings.
(b) New computation method enacted. If a new method of computing or
recomputing primary insurance amounts is enacted into law and you are
eligible to have your primary insurance amount recomputed under the new
method, we will recompute it under the new method if doing so would
increase your primary insurance amount.
(c) Earnings in the year you reach age 62 or become disabled. In the
initial computation of your primary insurance amount, we do not use your
earnings in the year you become entitled to old-age insurance benefits
or become disabled. However, we can use those earnings (called lag
earnings) in a recomputation of your primary insurance amount. We
recompute and begin paying you the higher benefits in the year after the
year you become entitled to old-age benefits or become disabled.
(d) Earnings not reported to us in time to use them in the
computation of your primary insurance amount. Because of the way reports
of earnings are required to be submitted to us for years after 1977, the
earnings you have in the year before you become entitled to old-age
insurance benefits, or become disabled or in the year you die might not
be reported to us in time to use them in computing your primary
insurance amount. We recompute your primary insurance amount based on
the new earnings information and begin paying you (or your survivors)
the higher benefits based on the additional earnings, beginning with the
month you became entitled or died.
(e) Earnings after entitlement that are used in a recomputation.
Earnings that you have after you become entitled to benefits will be
used in a recomputation of your primary insurance amount.
(f) Entitlement to a monthly pension. We will recompute your primary
insurance amount if in a month after you became entitled to old-age or
disability
[[Page 93]]
insurance benefits, you become entitled to a pension based on noncovered
employment, as explained in Sec. 404.213. Further, we will recompute
your primary insurance amount after your death to disregard a monthly
pension based on noncovered employment which affected your primary
insurance amount.
[47 FR 30734, July 15, 1982, as amended at 52 FR 47918, Dec. 17, 1987]
Sec. 404.282 Effective date of recomputations.
Most recomputations are effective beginning with January of the
calendar year after the year in which the additional earnings used in
the recomputation were paid. However, a recomputation to include
earnings in the year of death (whether or not paid before death) is
effective for the month of death. Additionally if you first became
eligible for old-age or disability insurance benefits after 1985 and you
later also become entitled to a monthly pension based on noncovered
employment, we will recompute your primary insurance amount under the
rules in Sec. 404.213; this recomputed Social Security benefit amount is
effective for the first month you are entitled to the pension. Finally,
if your primary insurance amount was affected by your entitlement to a
pension, we will recompute the amount to disregard the pension,
effective with the month of your death.
[47 FR 30734, July 15, 1982, as amended at 52 FR 47918, Dec. 17, 1987]
Sec. 404.283 Recomputation under method other than that used to find your primary insurance amount.
In some cases, we may recompute your primary insurance amount under
a computation method different from the method used in the computation
(or earlier recomputation) of your primary insurance amount, if you are
eligible for a computation or recomputation under the different method.
Sec. 404.284 Recomputations for people who reach age 62, or become disabled, or die before age 62 after 1978.
(a) General. Years of your earnings after 1978 not used in the
computation of your primary insurance amount (or in earlier
recomputations) under the average-indexed-monthly-earnings method may be
substituted for earlier years of your indexed earnings in a
recomputation, but only under the average-indexed-monthly-earnings
method. See Sec. 404.288 for the rules on recomputing when you are
entitled to a monthly pension based on noncovered employment.
(b) Substituting actual dollar amounts in earnings for earlier years
of indexed earnings. When we recompute your primary insurance amount
under the average-indexed-monthly earnings method, we use actual dollar
amounts, i.e., no indexing, for earnings not included in the initial
computation or earlier recomputation. These later earnings are
substituted for earlier years of indexed or actual earnings that are
lower.
(c) Benefit formula used in recomputation. The formula that was used
in the first computation of your primary insurance amount is also used
in recomputations of your primary insurance amount.
(d) Your recomputed primary insurance amount. We recompute your
primary insurance amount by applying the benefit formula to your average
indexed monthly earnings as revised to include additional earnings. See
Sec. 404.281. We then increase the recomputed PIA by the amounts of any
automatic cost-of-living or ad hoc increases in primary insurance
amounts that have become effective since you reached age 62, or became
disabled or died before age 62.
(e) Minimum increase in primary insurance amounts. Your primary
insurance amount may not be recomputed unless doing so would increase it
by at least $1.
Example 1. Ms. A, whose primary insurance amount we computed to be
$432.40 in June 1979 in Secs. 404.210 through 404.212 (based on average
indexed monthly earnings of $903), had earnings of $11,000 in 1979 which
were not used in the initial computation of her primary insurance
amount. We may recompute her primary insurance amount effective for
January 1980. In this recomputation, her 1979 earnings may be
substituted in their actual dollar amount for the lowest year of her
indexed earnings that was used in the initial computation. In Ms. A's
case, we substitute the $11,000 for her 1966 indexed earnings of
[[Page 94]]
$8,911.36. Her total indexed earnings are now $251,470.05 and her new
average indexed monthly earnings are $911. We apply to Ms. A's new
average indexed monthly earnings the same benefit formula we used in the
initial computation. Doing so produces an amount of $396.00. An
automatic cost-of-living increase of 9.9 percent was effective in June
1979. We increase the $396.00 amount by 9.9 percent to find Ms. A's
recomputed primary insurance amount of $435.30. Later we increased the
primary insurance amount to $497.60 to reflect the 14.3 percent cost-of-
living increase beginning June 1980 and to $553.40 to reflect the 11.2
percent cost-of-living increase beginning June 1981.
Example 2. Mr. B, whose primary insurance amount we computed to be
$429.20 (based on average monthly wages of $502) in June 1978 in
Secs. 404.220 through 404.222, had earnings of $12,000 in 1978 which
were not used in the initial computation of his primary insurance
amount. We may recompute his primary insurance amount effective for
January 1979. In this recomputation, his 1978 earnings are substituted
for the lowest year of earnings used in the initial computation ($2,700
in 1952). Mr. B's total earnings are now $142,000 and his new average
monthly wage is $537.
We next find Mr. B's new average monthly wage in column III of the
December 1978 benefit table in appendix III. Reading across, we find his
recomputed primary insurance amount on the same line in column IV, which
is $407.70. We then apply the 9.9 percent, the 14.3 percent and the 11.2
percent automatic cost-of-living increases for June 1979, June 1980, and
June 1981, respectively, to compute Mr. B's primary insurance amount of
$569.60.
(f) Guaranteed alternatives. We may recompute your primary insurance
amount by any of the following methods for which you qualify, if doing
so would result in a higher amount than the one computed under the
average-indexed-monthly-earnings method. Earnings in or after the year
you reach age 62 cannot be used.
(1) If you reached age 62 after 1978 and before 1984, we may
recompute to include earnings for years before the year you reached age
62 by using the guaranteed alternative (Sec. 404.231). We will increase
the result by any cost-of-living or ad hoc increases in the primary
insurance amounts that have become effective in and after the year you
reached age 62.
(2) We will also recompute under the old-start guarantee
(Sec. 404.242) and the prior-disability guarantee (Sec. 404.252) if you
meet the requirements of either or both these methods.
[47 FR 30734, July 15, 1982, as amended at 52 FR 47918, Dec. 17, 1987]
Sec. 404.285 Recomputations performed automatically.
Each year, we examine the earnings record of every retired,
disabled, and deceased worker to see if the worker's primary insurance
amount may be recomputed under any of the methods we have described.
When a recomputation is called for, we perform it automatically and
begin paying the higher benefits based on your recomputed primary
insurance amount for the earliest possible month that the recomputation
can be effective. You do not have to request this service, although you
may request a recomputation at an earlier date than one would otherwise
be performed (see Sec. 404.286). Doing so, however, does not allow your
increased primary insurance amount to be effective any sooner than it
would be under an automatic recomputation. You may also waive a
recomputation if one would disadvantage you or your family (see
Sec. 404.287).
Sec. 404.286 How to request an immediate recomputation.
You may request that your primary insurance amount be recomputed
sooner than it would be recomputed automatically. To do so, you must
make the request in writing to us and provide acceptable evidence of
your earnings not included in the first computation or earlier
recomputation of your primary insurance amount. If doing so will
increase your primary insurance amount, we will recompute it. However,
we cannot begin paying higher benefits on the recomputed primary
insurance amount any sooner than we could under an automatic
recomputation, i.e., for January of the year following the year in which
the earnings were paid or derived.
Sec. 404.287 Waiver of recomputation.
If you or your family would be disadvantaged in some way by a
recomputation of your primary insurance amount, or you and every member
of your family do not want your primary insurance amount to be
recomputed for
[[Page 95]]
any other reason, you may waive (that is, give up your right to) a
recomputation, but you must do so in writing. That you waive one
recomputation, however, does not mean that you also waive future
recomputations for which you might be eligible.
Sec. 404.288 Recomputing when you are entitled to a monthly pension based on noncovered employment.
(a) After entitlement to old-age or disability insurance benefits.
If you first become eligible for old-age or disability insurance
benefits after 1985 and you later become entitled to a monthly pension
based on noncovered employment, we may recompute your primary insurance
amount under the rules in Sec. 404.213. When recomputing, we will use
the amount of the pension to which you are entitled or deemed entitled
in the first month that you are concurrently eligible for both the
pension and old-age or disability insurance benefits. We will disregard
the rule in Sec. 404.284(e) that the recomputation must increase your
primary insurance amount by at least $1.
(b) Already entitled to benefits and to a pension based on
noncovered employment. If we have already computed or recomputed your
primary insurance amount to take into account your monthly pension, we
may later recompute for one of the reasons explained in Sec. 404.281. We
will recompute your primary insurance amount under the rules in
Secs. 404.213 and 404.284. Any increase resulting from the recomputation
under the rules of Sec. 404.284 will be added to the most recent primary
insurance amount which we had computed to take into account your monthly
pension.
(c) After your death. If one or more survivors are entitled to
benefits after your death, we will recompute the primary insurance
amount as though it had never been affected by your entitlement to a
monthly pension based in whole or in part on noncovered employment.
[52 FR 47918, Dec. 17, 1987]
Recalculations of Primary Insurance Amounts
Sec. 404.290 Recalculations.
(a) Your primary insurance amount may be ``recalculated'' in certain
instances. When we recalculate your primary amount, we refigure it under
the same method we used in the first computation by taking into account-
-
(1) Earnings (including compensation for railroad service)
incorrectly included or excluded in the first computation;
(2) Special deemed earnings credits including credits for military
service (see subpart N of this part) and for individuals interned during
World War II (see subpart K of this part), not available at the time of
the first computation;
(3) Correction of clerical or mathematical errors; or
(4) Other miscellaneous changes in status.
(b) Unlike recomputations, which may only serve to increase your
primary insurance amount, recalculations may serve to either increase or
reduce it.
Appendices to Subpart C
The following appendices contain data that are needed in computing
primary insurance amounts. Appendix I contains average of the total
wages figures, which we use to index a worker's earnings for purposes of
computing his or her average indexed monthly earnings. Appendix II
contains benefit formulas which we apply to a worker's average indexed
monthly earnings to find his or her primary insurance amount. Appendix
III contains the benefit table we use to find a worker's primary
insurance amount from his or her average monthly wage. We use the
figures in appendix IV to find your years of coverage for years after
1950 for purposes of your special minimum primary insurance amount.
Appendix V contains the table for computing the special minimum primary
insurance amount. Appendix VI is a table of the percentage increases in
primary insurance amounts since 1978. Appendix VII is a table of the
old-law contribution and benefit base that would have been effective
under the Social Security Act without enactment of the 1977 amendments.
The figures in the appendices are by law automatically adjusted each
year. We are required to announce the changes through
[[Page 96]]
timely publication in the Federal Register. The only exception to the
requirement of publication in the Federal Register is the update of
benefit amounts shown in appendix III. We update the benefit amounts for
payment purposes but are not required by law to publish this extensive
table in the Federal Register. We have not updated the table in appendix
III, but the introductory paragraphs at appendix III explain how you can
compute the current benefit amount.
When we publish the figures in the Federal Register, we do not
change every one of these figures. Instead, we provide new ones for each
year that passes. We continue to use the old ones for various
computation purposes, as the regulations show. Most of the new figures
for these appendices are required by law to be published by November 1
of each year. Notice of automatic cost-of-living increases in primary
insurance amounts is required to be published within 45 days of the end
of the applicable measuring period for the increase (see Secs. 404.274
and 404.276). In effect, publication is required within 45 days of the
end of the third calendar quarter of any year in which there is to be an
automatic cost-of-living increase.
We begin to use the new data in computing primary insurance amounts
as soon as required by law, even before we periodically update these
appendices. If the data you need to find your primary insurance amount
have not yet been included in the appendices, you may find the figures
in the Federal Register on or about November 1.
[52 FR 8247, Mar. 17, 1987]
Appendix I to Subpart C of Part 404--Average of the Total Wages for
Years After 1950
Explanation: We use these figures to index your social security
earnings (as described in Sec. 404.211) for purposes of computing your
average indexed monthly earnings.
------------------------------------------------------------------------
Average of
Calendar year the total
wages
------------------------------------------------------------------------
1951....................................................... $2,799.16
1952....................................................... 2,973.32
1953....................................................... 3,139.44
1954....................................................... 3,155.64
1955....................................................... 3,301.44
1956....................................................... 3,532.36
1957....................................................... 3,641.72
1958....................................................... 3,673.80
1959....................................................... 3,855.80
1960....................................................... 4,007.12
1961....................................................... 4,086.76
1962....................................................... 4,291.40
1963....................................................... 4,396.64
1964....................................................... 4,576.32
1965....................................................... 4,658.72
1966....................................................... 4,938.36
1967....................................................... 5,213.44
1968....................................................... 5,571.76
1969....................................................... 5,893.76
1970....................................................... 6,186.24
1971....................................................... 6,497.08
1972....................................................... 7,133.80
1973....................................................... 7,580.16
1974....................................................... 8,030.76
1975....................................................... 8,630.92
1976....................................................... 9,226.48
1977....................................................... 9,779.44
1978....................................................... 10,556.03
1979....................................................... 11,479.46
1980....................................................... 12,513.46
1981....................................................... 13,773.10
1982....................................................... 14,531.34
1983....................................................... 15,239.24
1984....................................................... 16,135.07
1985....................................................... 16,822.51
1986....................................................... 17,321.82
1987....................................................... 18,426.51
1988....................................................... 19,334.04
1989....................................................... 20,099.55
1990....................................................... 21,027.98
------------------------------------------------------------------------
[47 FR 30734, July 15, 1982, as amended at 52 FR 8247, Mar. 17, 1987; 57
FR 44096, Sept. 24, 1992]
Appendix II to Subpart C of Part 404--Benefit Formulas Used With Average
Indexed Monthly Earnings
As explained in Sec. 404.212, we use one of the formulas below to
compute your primary insurance amount from your average indexed monthly
earnings (AIME). To select the appropriate formula, we find in the left-
hand column the year after 1978 in which you reach age 62, or become
disabled, or die before age 62. The benefit formula to be used in
computing your primary insurance amount is on the same line in the
right-hand columns. For example, if you reach age 62 or become disabled
or die before age 62 in 1979, then we compute 90 percent of the first
$180 of AIME, 32 percent of the next $905 of AIME, and 15 percent of
AIME over $1,085. After we figure your amount for each step in the
formula, we add the amounts. If the total is not already a multiple of
$0.10, we round the total as follows:
(1) For computations using the benefit formulas in effect for 1979
through 1982, we round the total upward to the nearest $0.10, and
(2) For computations using the benefit formulas in effect for 1983
and later, we round the total downward to the nearest $0.10.
Benefit Formulas
------------------------------------------------------------------------
90 plus 32 plus 15
percent percent percent
Year you reach age 62 \1\ of the of the of AIME
first-- next-- over--
------------------------------------------------------------------------
1979..................................... $180 $905 $1,085
1980..................................... 194 977 1,171
[[Page 97]]
1981..................................... 211 1,063 1,274
1982..................................... 230 1,158 1,388
1983..................................... 254 1,274 1,528
1984..................................... 267 1,345 1,612
1985..................................... 280 1,411 1,691
1986..................................... 297 1,493 1,790
1987..................................... 310 1,556 1,866
1988..................................... 319 1,603 1,922
1989..................................... 339 1,705 2,044
1990..................................... 356 1,789 2,145
1991..................................... 370 1,860 2,230
1992..................................... 387 1,946 2,333
------------------------------------------------------------------------
\1\ Or become disabled or die before age 62.
[57 FR 44096, Sept. 24, 1992; 57 FR 45878, Oct. 5, 1992]
Appendix III to Subpart C of Part 404--Benefit Table
This benefit table shows primary insurance amounts and maximum
family benefits in effect in December 1978 based on cost-of-living
increases which became effective for June 1978. (See Sec. 404.403 for
information on maximum family benefits.) You will also be able to find
primary insurance amounts for an individual whose entitlement began in
the period June 1977 through May 1978.
The benefit table in effect in December 1978 had a minimum primary
insurance amount of $121.80. As explained in Sec. 404.222(b), certain
workers eligible, or who died without having been eligible, before 1982
had their benefit computed from this table. However, the minimum benefit
provision was repealed for other workers by the 1981 amendments to the
Act (the Omnibus Budget Reconciliation Act of 1981, Pub. L. 97-35 as
modified by Pub. L. 97-123). As a result, this benefit table includes a
downward extension from the former minimum of $121.80 to the lowest
primary insurance amount now possible. The extension is calculated as
follows. For each single dollar of average monthly wage in the benefit
table, the primary insurance amount shown for December 1978 is $121.80
multiplied by the ratio of that average monthly wage to $76. The upper
limit of each primary insurance benefit range in column I of the table
is $16.20 multiplied by the ratio of the average monthly wage in column
III of the table to $76. The maximum family benefit is 150 percent of
the corresponding primary insurance amount.
The repeal of the minimum benefit provision is effective with
January 1982 for most workers and their families where the worker
initially becomes eligible for benefits after 1981 or dies after 1981
without having been eligible before January 1982. For members of a
religious order who are required to take a vow of poverty, as explained
in 20 CFR 404.1024, and which religious order elected Social Security
coverage before December 29, 1981, the repeal is effective with January
1992 based on first eligibility or death in that month or later.
To use this table, you must first compute the primary insurance
benefit (column I) or the average monthly wage (column III), then move
across the same line to either column II or column IV as appropriate. To
determine increases in primary insurance amounts since December 1978 you
should see appendix VI. Appendix VI tells you, by year, the percentage
of the increases. In applying each cost-of-living increase to primary
insurance amounts, we round the increased primary insurance amount to
the next lower multiple of $0.10 if not already a multiple of $0.10.
(For cost-of-living increases which are effective before June 1982, we
round to the next higher multiple of $0.10.)
Extended December 1978 Table of Benefits Effective January 1982
[In dollars]
------------------------------------------------------------------------
I. Primary III. Average V. Maximum
insurance benefit: monthly wage: Or IV. family
If an individual's II. his or her Primary benefits:
primary insurance Primary average monthly insurance And the
benefit (as insurance wage (as amount maximum
determined under amount determined under effective amount of
Sec. 404.241(e)) effective Sec. 404.221) January benefits
is-- June 1977: is-- 1982: payable on
-------------------- Or his or ------------------ Then his the basis
her or her of his or
primary primary her wages
At least- But not insurance At But not insurance and self-
- more than- amount is-- least-- more amount is- employment
- than-- - income is--
------------------------------------------------------------------------
1 1.70 2.60
0.42 2 2 3.30 5.00
0.43 .63 3 3 4.90 7.40
.64 .85 4 4 6.50 9.80
.86 1.06 5 5 8.10 12.20
1.07 1.27 6 6 9.70 14.60
1.28 1.49 7 7 11.30 17.00
1.50 1.70 8 8 12.90 19.40
1.71 1.91 9 9 14.50 21.80
1.92 2.13 10 10 16.10 24.20
2.14 2.34 11 11 17.70 26.60
[[Page 98]]
2.35 2.55 12 12 19.30 29.00
2.56 2.77 13 13 20.90 31.40
2.78 2.98 14 14 22.50 33.80
2.99 3.19 15 15 24.10 36.20
3.20 3.41 16 16 25.70 38.60
3.42 3.62 17 17 27.30 41.00
3.63 3.83 18 18 28.90 43.40
3.84 4.05 19 19 30.50 45.80
4.06 4.26 20 20 32.10 48.20
4.27 4.47 21 21 33.70 50.60
4.48 4.68 22 22 35.30 53.00
4.69 4.90 23 23 36.90 55.40
4.91 5.11 24 24 38.50 57.80
5.12 5.32 25 25 40.10 60.20
5.33 5.54 26 26 41.70 62.60
5.55 5.75 27 27 43.30 65.00
5.76 5.96 28 28 44.90 67.40
5.97 6.18 29 29 46.50 69.80
6.19 6.39 30 30 48.10 72.20
6.40 6.60 31 31 49.70 74.60
6.61 6.82 32 32 51.30 77.00
6.83 7.03 33 33 52.90 79.40
7.04 7.24 34 34 54.50 81.80
7.25 7.46 35 35 56.10 84.20
7.47 7.67 36 36 57.70 86.60
7.68 7.88 37 37 59.30 89.00
7.89 8.10 38 38 60.90 91.40
8.11 8.31 39 39 62.60 93.90
8.32 8.52 40 40 64.20 96.30
8.53 8.73 41 41 65.80 98.70
8.74 8.95 42 42 67.40 101.10
8.96 9.16 43 43 69.00 103.50
9.17 9.37 44 44 70.60 105.90
9.38 9.59 45 45 72.20 108.30
9.60 9.80 46 46 73.80 110.70
9.81 10.01 47 47 75.40 113.10
10.02 10.23 48 48 77.00 115.50
10.24 10.44 49 49 78.60 117.90
10.45 10.65 50 50 80.20 120.30
10.66 10.87 51 51 81.80 122.70
10.88 11.08 52 52 83.40 125.10
11.09 11.29 53 53 85.00 127.50
11.30 11.51 54 54 86.60 129.90
11.52 11.72 55 55 88.20 132.30
11.73 11.93 56 56 89.80 134.70
11.94 12.15 57 57 91.40 137.10
12.16 12.36 58 58 93.00 139.50
12.37 12.57 59 59 94.60 141.90
12.58 12.78 60 60 96.20 144.30
12.79 13.00 61 61 97.80 146.70
13.01 13.21 62 62 99.40 149.10
13.22 13.42 63 63 101.00 151.50
13.43 13.64 64 64 102.60 153.90
13.65 13.85 65 65 104.20 156.30
13.86 14.06 66 66 105.80 158.70
14.07 14.28 67 67 107.40 161.10
14.29 14.49 68 68 109.00 163.50
14.50 14.70 69 69 110.60 165.90
14.71 14.92 70 70 112.20 168.30
14.93 15.13 71 71 113.80 170.70
15.14 15.34 72 72 115.40 173.10
15.35 15.56 73 73 117.00 175.50
15.57 15.77 74 74 118.60 177.90
[[Page 99]]
15.78 15.98 75 75 120.20 180.30
15.99 16.20 76 76 121.80 182.70
------------------------------------------------------------------------
Table of Benefits in Effect in December 1978
[In dollars]
------------------------------------------------------------------------
I. Primary III. Average V. Maximum
insurance benefit: monthly wage: Or IV. family
If an individual's II. his or her Primary benefits:
primary insurance Primary average monthly insurance And the
benefit (as insurance wage (as amount maximum
determined under amount determined under effective amount of
Sec. 404.241(e)) effective Sec. 404.221) June benefits
is-- June 1977: is-- 1978: payable on
-------------------- Or his or ------------------ Then his the basis
her or her of his or
primary primary her wages
At least- But not insurance At But not insurance and self-
- more than- amount is-- least-- more amount is- employment
- than-- - income is--
------------------------------------------------------------------------
16.20 114.30 76 121.80 182.70
16.21 16.84 116.10 77 78 123.70 185.60
16.85 17.60 118.80 79 80 126.60 189.90
17.61 18.40 121.00 81 81 128.90 193.50
18.41 19.24 123.00 82 83 131.20 196.80
19.25 20.00 125.80 84 85 134.00 201.00
20.01 20.64 128.10 86 87 136.50 204.80
20.65 21.28 130.10 88 89 138.60 207.90
21.29 21.88 132.70 90 90 141.40 212.10
21.89 22.28 135.00 91 92 143.80 215.70
22.29 22.68 137.20 93 94 146.20 219.20
22.59 23.08 139.40 95 96 148.50 222.80
23.09 23.44 142.00 97 97 151.30 227.00
23.45 23.76 144.30 98 99 153.70 230.60
23.77 24.20 147.10 100 101 156.70 235.10
24.21 24.60 149.20 102 102 158.90 238.50
24.61 25.00 151.70 103 104 161.60 242.40
25.01 25.48 154.50 105 106 164.60 246.90
25.49 25.92 157.00 107 107 167.30 251.00
25.93 26.40 159.40 108 109 169.80 254.80
26.41 26.94 161.90 110 113 172.50 258.80
26.95 27.46 164.20 114 118 174.90 262.40
27.47 28.00 166.70 119 122 177.60 266.50
28.01 28.68 169.30 123 127 180.40 270.60
28.69 29.25 171.80 128 132 183.00 274.60
29.26 29.68 174.10 133 136 185.50 278.30
29.69 30.36 176.50 137 141 188.00 282.10
30.37 30.92 179.10 142 146 190.80 286.20
30.93 31.36 181.70 147 150 193.60 290.40
31.37 32.00 183.90 151 155 195.90 293.90
32.01 32.60 186.50 156 160 198.70 298.10
32.61 33.20 189.00 161 164 201.30 302.00
33.21 33.88 191.40 165 169 203.90 305.90
33.89 34.50 194.00 170 174 206.70 310.10
34.51 35.00 196.30 175 178 209.10 313.70
35.01 35.80 198.90 179 183 211.90 318.00
35.81 36.40 201.30 184 188 214.40 321.70
36.41 37.08 203.90 189 193 217.20 326.00
37.09 37.60 206.40 194 197 219.90 329.90
37.61 38.20 208.80 198 202 222.40 333.60
38.21 39.12 211.50 203 207 225.30 338.00
39.13 39.68 214.00 208 211 228.00 342.00
39.69 40.33 216.00 212 216 230.10 345.20
40.34 41.12 218.70 217 221 233.00 349.50
41.13 41.76 221.20 222 225 235.60 353.40
41.77 42.44 223.90 226 230 238.50 357.80
[[Page 100]]
42.45 43.20 226.30 231 235 241.10 361.70
43.21 43.76 229.10 236 239 244.00 366.10
43.77 44.44 231.20 240 244 246.30 371.10
44.45 44.88 233.50 245 249 248.70 378.80
44.89 45.60 236.40 250 253 251.80 384.90
238.70 254 258 254.30 392.50
240.80 259 263 256.50 400.00
243.70 264 267 259.60 206.00
246.10 268 272 262.10 413.70
248.70 273 277 264.90 421.20
251.00 278 281 267.40 427.20
253.50 282 286 270.00 434.90
256.20 287 291 272.90 442.60
258.30 292 295 275.10 448.50
261.10 296 300 278.10 456.10
263.50 301 305 280.70 463.80
265.80 306 309 283.10 469.80
268.50 310 314 286.00 477.40
270.70 315 319 288.30 485.10
273.20 320 323 291.00 491.10
275.80 324 328 293.80 498.70
278.10 329 333 296.20 506.20
281.00 334 337 299.30 512.50
283.00 338 342 301.40 519.90
285.60 343 347 304.20 527.50
288.30 348 351 307.10 533.60
290.50 352 356 309.40 541.20
293.30 357 361 312.40 548.80
295.60 362 365 314.90 554.90
297.90 366 370 317.30 562.50
300.60 371 375 320.20 569.90
303.10 376 379 322.90 576.30
305.70 380 384 325.60 583.90
307.90 385 389 328.00 591.30
310.30 390 393 330.50 597.40
313.00 394 398 333.40 605.10
315.40 399 403 336.00 612.70
318.20 404 407 338.90 618.60
320.20 408 412 341.10 626.30
322.50 413 417 343.50 633.80
324.80 418 421 346.00 639.90
327.40 422 426 348.70 647.50
329.60 427 431 351.10 655.10
331.60 432 436 353.20 662.70
334.40 437 440 356.20 665.70
336.50 441 445 358.40 669.70
338.70 446 450 360.80 673.40
341.30 451 454 363.50 676.30
343.50 455 459 365.90 680.10
345.80 460 464 368.30 683.80
347.90 465 468 370.60 687.10
350.70 469 473 373.50 690.80
352.60 474 478 375.60 694.60
354.90 479 482 378.00 697.70
357.40 483 487 380.70 701.60
359.70 488 492 383.10 705.40
361.90 493 496 385.50 708.40
364.50 497 501 388.20 712.10
366.60 502 506 390.50 715.80
368.90 507 510 392.90 719.00
371.10 511 515 395.30 722.80
373.70 516 520 398.00 726.70
375.80 521 524 400.30 729.50
[[Page 101]]
378.10 525 529 402.70 733.40
380.80 530 534 405.60 737.10
382.80 535 538 407.70 740.20
385.10 539 543 410.20 744.10
387.60 544 548 412.80 747.80
389.90 549 553 415.30 751.60
392.10 554 556 417.60 753.90
393.90 557 560 419.60 756.90
396.10 561 563 421.90 759.30
398.20 564 567 424.10 762.30
400.40 568 570 426.50 764.50
402.30 571 574 428.50 767.50
404.40 575 577 430.70 769.90
406.20 578 581 432.70 772.80
408.40 582 584 435.00 775.20
410.20 585 588 436.90 778.20
412.60 589 591 439.50 780.50
414.60 592 595 441.60 783.50
416.70 596 598 443.80 785.60
418.70 599 602 446.00 788.90
420.70 603 605 448.10 791.10
422.80 606 609 450.30 794.00
424.90 610 612 452.60 796.50
426.90 613 616 454.70 799.50
428.90 617 620 456.80 802.50
431.00 621 623 459.10 804.80
433.00 624 627 461.20 807.90
435.10 628 630 463.40 810.70
437.10 631 634 465.60 814.70
439.20 635 637 467.80 818.50
441.40 638 641 470.10 822.40
443.20 642 644 472.10 826.10
445.40 645 648 474.40 830.10
447.40 649 652 476.50 833.70
448.60 653 656 477.80 836.10
449.90 657 660 479.20 838.40
451.50 661 665 480.90 841.50
453.10 666 670 482.60 844.50
454.80 671 675 484.40 847.40
456.40 676 680 486.10 850.50
458.00 681 685 487.80 853.50
459.80 686 690 489.70 856.40
461.20 691 695 491.20 859.60
462.80 696 700 492.90 862.60
464.50 701 705 494.70 865.60
466.10 706 710 496.40 868.60
467.70 711 715 498.20 871.50
469.40 716 720 500.00 874.60
471.00 721 725 501.70 877.60
472.60 726 730 503.40 880.70
474.20 731 735 505.10 883.80
475.90 736 740 506.90 886.70
477.40 741 745 508.50 889.90
478.90 746 750 510.10 892.70
480.40 751 755 511.70 896.40
481.80 756 760 513.20 897.80
483.20 761 765 514.70 900.40
484.50 766 770 516.00 903.00
485.80 771 775 517.40 905.40
487.20 776 780 518.90 907.90
488.60 781 785 520.40 910.40
489.80 786 790 521.70 912.90
491.10 791 795 523.10 915.40
[[Page 102]]
492.50 796 800 524.60 918.00
494.00 801 805 526.20 920.50
495.30 806 810 527.50 923.00
496.70 811 815 529.00 925.60
498.00 816 820 530.40 928.00
499.40 821 825 531.90 930.60
500.70 826 830 533.30 933.10
502.00 831 835 534.70 935.70
503.30 836 840 536.10 938.10
504.70 841 845 537.60 940.80
506.00 846 850 538.90 943.00
507.50 851 855 540.50 945.70
508.80 856 860 541.90 948.10
510.20 861 865 543.40 950.70
511.50 866 870 544.80 953.20
512.90 871 875 546.30 955.70
514.10 876 880 547.60 958.20
515.50 881 885 549.10 960.80
516.80 886 890 550.40 963.20
518.20 891 895 551.90 966.00
519.60 896 900 553.40 968.30
521.00 901 905 554.90 970.90
522.30 906 910 556.30 973.50
523.70 911 915 557.80 976.00
525.10 916 920 559.30 978.30
526.30 921 925 560.60 961.00
527.60 926 930 561.90 983.40
529.00 931 935 563.40 985.90
530.40 936 940 564.90 988.50
531.70 941 945 566.30 991.00
533.00 946 950 567.70 993.50
534.50 951 955 569.30 996.10
535.90 956 960 570.80 998.60
537.30 961 965 572.30 1,001.00
538.40 966 970 573.40 1,003.60
539.80 971 975 574.90 1,006.20
541.20 976 980 576.40 1,008.50
542.60 981 985 577.90 1,011.10
543.80 986 990 579.20 1,013.60
545.20 991 995 580.70 1,016.20
546.60 996 1,000 582.20 1,018.60
547.80 1,001 1,005 583.50 1,020.70
548.90 1,006 1,010 584.60 1,023.20
550.20 1,011 1,015 586.00 1,025.30
551.50 1,016 1,020 587.40 1,027.80
552.60 1,021 1,025 588.60 1,029.90
553.80 1,026 1,030 589.80 1,032.20
555.10 1,031 1,035 591.20 1,034.50
556.20 1,036 1,040 592.40 1,036.70
557.50 1,041 1,045 593.80 1,039.10
558.80 1,046 1,050 595.20 1,041.30
559.80 1,051 1,055 596.20 1,043.40
561.10 1,056 1,060 597.60 1,045.90
562.40 1,061 1,065 599.00 1,048.00
563.60 1,066 1,070 600.30 1,050.50
564.80 1,071 1,075 601.60 1,052.60
566.00 1,076 1,080 602.80 1,054.90
567.30 1,081 1,085 604.20 1,057.10
568.40 1,086 1,090 605.40 1,059.40
569.70 1,091 1,095 606.80 1,061.70
571.00 1,096 1,100 608.20 1,064.00
572.00 1,101 1,105 609.20 1,066.10
573.30 1,106 1,110 610.60 1.068.50
[[Page 103]]
574.60 1,111 1,115 612.00 1,070.70
575.70 1,116 1,120 613.20 1,073.10
577.00 1,121 1,125 614.60 1,075.30
578.20 1,126 1,130 615.80 1,077.60
579.40 1,131 1,135 617.10 1,079.70
580.60 1,136 1,140 618.40 1,082.20
581.90 1,141 1,145 619.80 1,084.40
583.10 1,146 1,150 621.10 1,086.70
584.20 1,151 1,555 622.20 1,088.80
585.50 1,156 1,160 623.60 1,091.10
586.70 1,161 1,165 624.90 1,093.40
587.90 1,166 1,170 626.20 1,095.80
589.20 1,171 1,175 627.50 1,098.00
590.30 1,176 1,180 628.70 1,100.20
591.40 1,181 1,185 629.90 1,102.20
592.60 1,186 1,190 631.20 1,104.30
593.70 1,191 1,195 632.30 1,106.50
594.80 1,196 1,200 633.50 1,108.60
595.90 1,201 1,205 634.70 1,110.60
597.10 1,206 1,210 636.00 1,112.90
598.20 1,211 1,215 637.10 1,114.90
599.30 1,216 1,220 638.30 1,117.00
600.40 1,221 1,225 639.50 1,119.00
601.60 1,226 1,230 640.80 1,121.20
602.70 1,231 1,235 641.90 1,123.30
603.80 1,236 1,240 643.10 1,125.40
605.00 1,241 1,245 644.40 1,127.50
606.10 1,246 1,250 645.50 1,129.60
607.20 1,251 1,255 646.70 1,131.60
608.30 1,256 1,260 647.90 1,133.80
609.50 1,261 1,265 649.20 1,135.90
610.60 1,266 1,270 650.30 1,138.00
611.70 1,271 1,275 651.50 1,140.00
612.80 1,276 1,280 652.70 1,142.20
613.80 1,281 1,285 653.70 1,144.10
614.80 1,286 1,290 654.90 1,146.10
616.00 1,291 1,295 656.10 1,148.00
617.00 1,296 1,300 657.20 1,150.00
618.10 1,301 1,305 658.30 1,152.00
619.10 1,306 1,310 659.40 1,154.00
620.20 1,311 1,315 660.60 1,155.90
621.30 1,316 1,320 661.70 1,157.90
622.30 1,321 1,325 662.80 1,159.80
623.40 1,326 1,330 664.00 1,161.90
624.40 1,331 1,335 665.00 1,163.80
625.50 1,336 1,340 666.20 1,165.80
626.60 1,341 1,345 667.40 1,167.70
627.60 1,346 1,350 668.40 1,169.70
628.70 1,351 1,355 669.60 1,171.70
629.70 1,356 1,360 670.70 1,173.70
630.80 1,361 1,365 671.90 1,175.60
631.80 1,366 1,370 672.90 1,177.70
632.90 1,371 1,375 674.10 1,179.60
633.90 1,376 1,380 675.20 1,181.60
634.90 1,381 1,385 676.20 1,183.40
635.90 1,386 1,390 677.30 1,185.30
636.90 1,391 1,395 678.30 1,187.10
637.90 1,396 1,400 679.40 1,189.00
638.90 1,401 1,405 680.50 1,190.80
639.90 1,406 1,410 681.50 1,192.70
640.90 1,411 1,415 682.60 1,194.60
641.90 1,416 1,420 683.70 1,196.50
642.90 1,421 1,425 685.70 1,198.30
[[Page 104]]
643.90 1,426 1,430 684.80 1,200.20
644.90 1,431 1,435 686.90 1,202.00
645.90 1,436 1,440 687.90 1,203.90
646.90 1,441 1,445 689.00 1,205.70
647.90 1,446 1,450 690.10 1,207.70
648.90 1,451 1,455 691.10 1,209.50
649.90 1,456 1,460 692.20 1,211.40
650.90 1,461 1,465 693.30 1,213.20
651.90 1,466 1,470 694.30 1,215.10
652.90 1,471 1,475 695.40 1,216.90
------------------------------------------------------------------------
[47 FR 30734, July 15, 1982; 47 FR 35479, Aug. 16, 1982, as amended at
48 FR 46143, Oct. 11, 1983; 48 FR 50076, Oct. 31, 1983]
Appendix IV to Subpart C of Part 404--Earnings Needed for a Year of
Coverage After 1950
Minimum Social Security Earnings to Qualify for a Year of Coverage After
1950 for Purposes of the--
------------------------------------------------------------------------
Special Benefit
minimum computations
Year primary described in
insurance section
amount 404.213(d) \2\
------------------------------------------------------------------------
1951-1954................................. $900 $900
1955-1958................................. 1,050 1,050
1959-1965................................. 1,200 1,200
1966-1967................................. 1,650 1,650
1968-1971................................. 1,950 1,950
1972...................................... 2,250 2,250
1973...................................... 2,700 2,700
1974...................................... 3,300 3,300
1975...................................... 3,525 3,525
1976...................................... 3,825 3,825
1977...................................... 4,125 4,125
1978...................................... 4,425 4,425
1979...................................... 4,725 4,725
1980...................................... 5,100 5,100
1981...................................... 5,550 5,550
1982...................................... 6,075 6,075
1983...................................... 6,675 6,675
1984...................................... 7,050 7,050
1985...................................... 7,425 7,425
1986...................................... 7,875 7,875
1987...................................... 8,175 8,175
1988...................................... 8,400 8,400
1989...................................... 8,925 8,925
1990...................................... 9,525 9,525
1991...................................... 5,940 9,900
1992...................................... 6,210 10,350
------------------------------------------------------------------------
\2\ Applies only to certain individuals with pensions from noncovered
employment.
Note: For 1951-78, the amounts shown are 25 percent of the
contribution and benefit base (the contribution and benefit base is the
same as the annual wage limitation as shown in Sec. 404.1047) in effect.
For years after 1978, however, the amounts are 25 percent of what the
contribution and benefit base would have been if the 1977 Social
Security Amendments had not been enacted, except, for special minimum
benefit purposes, the applicable percentage is 15 percent for years
after 1990.
[57 FR 44096, Sept. 24, 1992]
Appendix V to Subpart C of Part 404--Computing the Special Minimum
Primary Insurance Amount and Related Maximum Family Benefits
These tables are based on section 215(a)(1)(C)(i) of the Social
Security Act, as amended. They include the percent cost-of-living
increase shown in appendix VI for each effective date.
June 1979
------------------------------------------------------------------------
II. III.
Primary Maximum
I. Years of coverage insurance family
amount benefit
------------------------------------------------------------------------
11.............................................. $12.70 $19.10
12.............................................. 25.30 38.00
13.............................................. 38.00 57.00
14.............................................. 50.60 75.90
15.............................................. 63.20 94.90
16.............................................. 75.90 113.90
17.............................................. 88.50 132.80
18.............................................. 101.20 151.80
19.............................................. 113.80 170.70
20.............................................. 126.40 189.60
21.............................................. 139.10 208.70
22.............................................. 151.70 227.60
23.............................................. 164.40 246.60
[[Page 105]]
24.............................................. 177.00 265.50
25.............................................. 189.60 284.50
26.............................................. 202.30 303.50
27.............................................. 214.90 322.40
28.............................................. 227.50 341.30
29.............................................. 240.20 360.30
30.............................................. 252.80 379.20
------------------------------------------------------------------------
June 1980
------------------------------------------------------------------------
II. III.
Primary Maximum
I. Years of coverage insurance family
amount benefit
------------------------------------------------------------------------
11.............................................. $14.60 $21.90
12.............................................. 29.00 43.50
13.............................................. 43.50 65.30
14.............................................. 57.90 86.90
15.............................................. 72.30 108.50
16.............................................. 86.80 130.20
17.............................................. 101.20 151.80
18.............................................. 115.70 173.60
19.............................................. 130.10 195.20
20.............................................. 144.50 216.80
21.............................................. 159.00 238.60
22.............................................. 173.40 260.20
23.............................................. 188.00 282.00
24.............................................. 202.40 303.60
25.............................................. 216.80 325.20
26.............................................. 231.30 347.00
27.............................................. 245.70 368.60
28.............................................. 260.10 390.20
29.............................................. 274.60 411.90
30.............................................. 289.00 433.50
------------------------------------------------------------------------
June 1981
------------------------------------------------------------------------
II. III.
Primary Maximum
I. Years of coverage insurance family
amount benefits
------------------------------------------------------------------------
11.............................................. $16.30 $24.50
12.............................................. 32.30 48.50
13.............................................. 48.40 72.70
14.............................................. 64.40 96.70
15.............................................. 80.40 120.70
16.............................................. 96.60 144.90
17.............................................. 112.60 168.90
18.............................................. 128.70 193.10
19.............................................. 144.70 217.10
20.............................................. 160.70 241.10
21.............................................. 176.90 265.40
22.............................................. 192.90 289.40
23.............................................. 209.10 313.70
24.............................................. 225.10 337.70
25.............................................. 241.10 361.70
26.............................................. 257.30 386.00
27.............................................. 273.30 410.00
28.............................................. 289.30 434.00
29.............................................. 305.40 458.10
30.............................................. 321.40 482.10
------------------------------------------------------------------------
June 1982
------------------------------------------------------------------------
II. III.
Primary Maximum
I. Years of coverage insurance family
amount benefit
------------------------------------------------------------------------
11.............................................. $17.50 $26.30
12.............................................. 34.60 52.00
13.............................................. 51.90 78.00
14.............................................. 69.10 103.80
15.............................................. 86.30 129.60
16.............................................. 103.70 155.60
17.............................................. 120.90 181.30
18.............................................. 138.20 207.30
19.............................................. 155.40 233.10
20.............................................. 172.50 258.90
21.............................................. 189.90 285.00
22.............................................. 207.10 310.80
23.............................................. 224.50 336.90
24.............................................. 241.70 362.60
25.............................................. 258.90 388.40
26.............................................. 276.30 414.50
27.............................................. 293.50 440.30
28.............................................. 310.70 466.10
29.............................................. 327.90 491.90
30.............................................. 345.10 517.70
------------------------------------------------------------------------
December 1983
------------------------------------------------------------------------
II. III.
Primary Maximum
I. Years of coverage insurance family
amount benefit
------------------------------------------------------------------------
11.............................................. $18.10 $27.20
12.............................................. 35.80 53.80
13.............................................. 53.70 80.70
14.............................................. 71.50 107.40
15.............................................. 89.30 134.10
16.............................................. 107.30 161.00
17.............................................. 125.10 187.60
18.............................................. 143.00 214.50
19.............................................. 160.80 241.20
20.............................................. 178.50 267.90
21.............................................. 196.50 294.90
22.............................................. 214.30 321.60
23.............................................. 232.30 348.60
24.............................................. 250.10 375.20
25.............................................. 267.90 401.90
26.............................................. 285.90 429.00
27.............................................. 303.70 455.70
28.............................................. 321.50 482.40
29.............................................. 339.30 509.10
30.............................................. 357.10 535.80
------------------------------------------------------------------------
December 1984
------------------------------------------------------------------------
II. III.
Primary Maximum
I. Years of coverage insurance family
amount benefit
------------------------------------------------------------------------
11.............................................. $18.70 $28.10
12.............................................. 37.00 55.60
13.............................................. 55.50 83.50
14.............................................. 74.00 111.10
15.............................................. 92.40 138.70
16.............................................. 111.00 166.60
17.............................................. 129.40 194.10
18.............................................. 148.00 222.00
19.............................................. 166.40 249.60
20.............................................. 184.70 277.20
21.............................................. 203.30 305.20
22.............................................. 221.80 332.80
23.............................................. 240.40 360.80
24.............................................. 258.80 388.30
25.............................................. 277.20 415.90
26.............................................. 295.90 444.00
[[Page 106]]
27.............................................. 314.30 471.60
28.............................................. 332.70 499.20
29.............................................. 351.10 526.90
30.............................................. 369.50 554.50
------------------------------------------------------------------------
December 1985
------------------------------------------------------------------------
II. III.
Primary Maximum
I. Years of coverage insurance family
amount benefit
------------------------------------------------------------------------
11.............................................. $19.20 $28.90
12.............................................. 38.10 57.30
13.............................................. 57.20 86.00
14.............................................. 76.20 114.50
15.............................................. 95.20 142.90
16.............................................. 114.40 171.70
17.............................................. 133.40 200.10
18.............................................. 152.50 228.80
19.............................................. 171.50 257.30
20.............................................. 190.40 285.70
21.............................................. 209.60 314.60
22.............................................. 228.60 343.10
23.............................................. 247.80 371.90
24.............................................. 266.80 400.30
25.............................................. 285.70 428.70
26.............................................. 305.00 457.70
27.............................................. 324.00 486.20
28.............................................. 343.00 514.60
29.............................................. 361.90 543.20
30.............................................. 380.90 571.60
------------------------------------------------------------------------
December 1986
------------------------------------------------------------------------
II. III.
Primary Maximum
I. Years of coverage insurance family
amount benefit
------------------------------------------------------------------------
11.............................................. $19.40 $29.20
12.............................................. 38.50 58.00
13.............................................. 57.90 87.10
14.............................................. 77.10 115.90
15.............................................. 96.40 144.70
16.............................................. 115.80 173.90
17.............................................. 135.10 202.70
18.............................................. 154.40 231.70
19.............................................. 173.70 260.60
20.............................................. 192.80 289.40
21.............................................. 212.30 318.60
22.............................................. 231.50 347.50
23.............................................. 251.00 376.70
24.............................................. 270.20 405.50
25.............................................. 289.40 434.20
26.............................................. 308.90 463.60
27.............................................. 328.20 492.50
28.............................................. 347.40 521.20
29.............................................. 366.60 550.20
30.............................................. 385.80 579.00
------------------------------------------------------------------------
December 1987
------------------------------------------------------------------------
III.
II. Primary Maximum
I. Years of coverage insurance family
amount benefit
------------------------------------------------------------------------
11............................................ $20.20 $30.40
12............................................ 40.10 60.40
13............................................ 60.30 90.70
14............................................ 80.30 120.70
15............................................ 100.40 150.70
16............................................ 120.60 181.20
17............................................ 140.70 211.20
18............................................ 160.80 241.40
19............................................ 180.90 271.50
20............................................ 200.80 301.50
21............................................ 221.20 331.90
22............................................ 241.20 362.00
23............................................ 261.50 392.50
24............................................ 281.50 422.50
25............................................ 301.50 452.40
26............................................ 321.80 483.00
27............................................ 341.90 513.10
28............................................ 361.90 543.00
29............................................ 381.90 573.30
30............................................ 402.00 603.30
------------------------------------------------------------------------
December 1988
------------------------------------------------------------------------
III.
II. Primary Maximum
I. Years of coverage insurance family
amount benefit
------------------------------------------------------------------------
11............................................ $21.00 $31.60
12............................................ 41.70 62.80
13............................................ 62.70 94.30
14............................................ 83.50 125.50
15............................................ 104.40 156.70
16............................................ 125.40 188.40
17............................................ 146.30 219.60
18............................................ 167.20 251.00
19............................................ 188.10 282.30
20............................................ 208.80 313.50
21............................................ 230.00 345.10
22............................................ 250.80 376.40
23............................................ 271.90 408.20
24............................................ 292.70 439.40
25............................................ 313.50 470.40
26............................................ 334.60 502.30
27............................................ 355.50 533.60
28............................................ 376.30 564.70
29............................................ 397.10 596.20
30............................................ 418.00 627.40
------------------------------------------------------------------------
December 1989
------------------------------------------------------------------------
III.
II. Primary Maximum
I. Years of coverage insurance family
amount benefit
------------------------------------------------------------------------
11............................................ $21.90 $33.00
12............................................ 43.60 65.70
13............................................ 65.60 98.70
14............................................ 87.40 131.30
15............................................ 109.30 164.00
16............................................ 131.20 197.20
17............................................ 153.10 229.90
18............................................ 175.00 262.70
19............................................ 196.90 295.50
20............................................ 218.60 328.20
21............................................ 240.80 361.30
22............................................ 262.50 394.00
23............................................ 284.60 427.30
24............................................ 306.40 460.00
25............................................ 328.20 492.50
26............................................ 350.30 525.90
27............................................ 372.20 558.60
28............................................ 393.90 591.20
29............................................ 415.70 624.20
[[Page 107]]
30............................................ 437.60 656.80
------------------------------------------------------------------------
December 1990
------------------------------------------------------------------------
III.
II. Primary Maximum
I. Years of coverage insurance family
amount benefit
------------------------------------------------------------------------
11............................................ $23.00 $34.70
12............................................ 45.90 69.20
13............................................ 69.10 104.00
14............................................ 92.10 138.30
15............................................ 115.20 172.80
16............................................ 138.20 207.80
17............................................ 161.30 242.30
18............................................ 184.40 276.80
19............................................ 207.50 311.40
20............................................ 230.40 345.90
21............................................ 253.80 380.80
22............................................ 276.60 415.20
23............................................ 299.90 450.30
24............................................ 322.90 484.80
25............................................ 345.90 519.00
26............................................ 369.20 554.20
27............................................ 392.20 588.70
28............................................ 415.10 623.10
29............................................ 438.10 657.90
30............................................ 461.20 692.20
------------------------------------------------------------------------
December 1991
------------------------------------------------------------------------
III.
II. Primary Maximum
I. Years of coverage insurance family
amount benefit
------------------------------------------------------------------------
11............................................ $23.80 $35.90
12............................................ 47.50 71.70
13............................................ 71.60 107.80
14............................................ 95.50 143.40
15............................................ 119.40 179.10
16............................................ 143.30 215.40
17............................................ 167.20 251.20
18............................................ 191.20 287.00
19............................................ 215.10 322.90
20............................................ 238.90 358.60
21............................................ 263.10 394.80
22............................................ 286.80 430.50
23............................................ 310.90 466.90
24............................................ 334.80 502.70
25............................................ 358.60 538.20
26............................................ 382.80 574.70
27............................................ 406.70 610.40
28............................................ 430.40 646.10
29............................................ 454.30 682.20
30............................................ 478.20 717.80
------------------------------------------------------------------------
Note: The amounts shown in the above table for years of coverage less
than 19 are not payable for June 1981 through December 1981 because
the corresponding values shown in column II are less than the $135.70
minimum primary insurance amount payable for that period. For months
after December 1981, a special minimum primary insurance amount of
$128.70 will be payable.
[47 FR 30734, July 15, 1982, as amended at 52 FR 8248, Mar. 17, 1987; 57
FR 44097, Sept. 24, 1992; 57 FR 45878, Oct. 5, 1992]
Appendix VI to Subpart C of Part 404--Percentage of Automatic Increases
in Primary Insurance Amounts Since 1978
------------------------------------------------------------------------
Percentage
Effective date increase
------------------------------------------------------------------------
06/79...................................................... 9.9
06/80...................................................... 14.3
06/81...................................................... 11.2
06/82...................................................... 7.4
12/83...................................................... 3.5
12/84...................................................... 3.5
12/85...................................................... 3.1
12/86...................................................... 1.3
12/87...................................................... 4.2
12/88...................................................... 4.0
12/89...................................................... 4.7
12/90...................................................... 5.4
12/91...................................................... 3.7
------------------------------------------------------------------------
[57 FR 44097, Sept. 24, 1992]
Appendix VII to Subpart C of Part 404--``Old-Law'' Contribution and
Benefit Base
Explanation: We use these figures to determine the earnings needed
for a year of coverage for years after 1978 (see Sec. 404.261 and
appendix IV). This is the contribution and benefit base that would have
been effective under the Social Security Act without the enactment of
the 1977 amendments.
------------------------------------------------------------------------
Year Amount
------------------------------------------------------------------------
1979....................................................... $18,900
1980....................................................... 20,400
1981....................................................... 22,200
1982....................................................... 24,300
1983....................................................... 26,700
1984....................................................... 28,200
1985....................................................... 29,700
1986....................................................... 31,500
1987....................................................... 32,700
1988....................................................... 33,600
1989....................................................... 35,700
1990....................................................... 38,100
1991....................................................... 39,600
1992....................................................... 41,400
------------------------------------------------------------------------
[52 FR 8248, Mar. 17, 1987, as amended at 57 FR 44097, Sept. 24, 1992;
57 FR 45878, Oct. 5, 1992]
Subpart D--Old-Age, Disability, Dependents' and Survivors' Insurance
Benefits; Period of Disability
Authority: Secs. 202, 203 (a) and (b), 205(a), 216, 223, 225,
228(a)-(e), and 702(a)(5) of the Social Security Act (42 U.S.C. 402, 403
(a) and (b), 405(a), 416, 423, 425, 428(a)-(e), and 902(a)(5)).
[[Page 108]]
Source: 44 FR 34481, June 15, 1979, unless otherwise noted.
General
Sec. 404.301 Introduction.
This subpart sets out what requirements you must meet to qualify for
social security benefits, how your benefit amounts are figured, when
your right to benefits begins and ends, and how family relationships are
determined. These benefits are provided by title II of the Social
Security Act. They include--
(a) For workers, old-age and disability benefits and benefit
protection during periods of disability;
(b) For a worker's dependents, benefits for a worker's wife,
divorced wife, husband, divorced husband, and child;
(c) For a worker's survivors, benefits for a worker's widow,
widower, divorced wife, child, and parent, and a lump-sum death payment;
and
(d) For uninsured persons age 72 or older, special payments.
Sec. 404.302 Other regulations related to this subpart.
This subpart is related to several others. Subpart H sets out what
evidence you need to prove you qualify for benefits. Subpart P describes
what is needed to prove you are disabled. Subpart E describes when your
benefits may be reduced or stopped for a time. Subpart G describes the
need for and the effect of an application for benefits. Part 410
describes when you may qualify for black lung benefits. Part 416
describes when you may qualify for supplemental security income. Also 42
CFR part 405 describes when you may qualify for hospital and medical
insurance if you are aged, disabled, or have chronic kidney disease.
Sec. 404.303 Definitions.
As used in this subpart:
Apply means to sign a form or statement that the Social Security
Administration accepts as an application for benefits under the rules
set out in subpart G.
Eligible means that a person would meet all the requirements for
entitlement to benefits for a period of time but has not yet applied.
Entitled means that a person has applied and has proven his or her
right to benefits for a period of time.
Insured person or the insured means someone who has enough earnings
under social security to permit payment of benefits on his or her
earnings record. The requirements for becoming insured are described in
subpart B.
Permanent home means the true and fixed home (legal domicile) of a
person. It is the place to which a person intends to return whenever he
or she is absent.
Primary insurance amount means an amount that is determined from the
average monthly earnings creditable to the insured person. This term and
the manner in which it is computed are explained in subpart C.
We or Us means the Social Security Administration.
You means the person who has applied for benefits or the person for
whom someone else has applied.
Sec. 404.304 What are the general rules on benefit amounts?
This subpart describes how we determine the highest monthly benefit
amount you ordinarily could qualify for under each type of benefit.
However, the highest monthly benefit amount you could qualify for may
not be the amount you will be paid. In a particular month, your benefit
amount may be reduced or not paid at all. Under some circumstances, your
benefit amount may be increased. The most common reasons for a change in
your benefit amount are listed below.
(a) Age. Sections 404.410 through 404.413 explain how your old-age,
wife's or husband's, or widow's or widower's benefits may be reduced if
you choose to receive them before you attain full retirement age (as
defined in Sec. 404.409).
(b) Earnings. Sections 404.415 through 404.418 explain how
deductions will be made from your benefits if your earnings or the
insured person's earnings go over certain limits.
(c) Overpayments and Underpayments. Your benefits may be increased
or decreased to make up for any previous overpayment or underpayment
made on the insured person's record. For more information about this,
see subpart F of this part.
[[Page 109]]
(d) Family maximum. Sections 404.403 through 404.406 explain that
there is a maximum amount payable on each insured person's earnings
record. If you are entitled to benefits as the insured's dependent or
survivor, your benefits may be reduced to keep total benefits payable to
the insured's family within these limits.
(e) Government pension offset. If you are entitled to wife's,
husband's, widow's, widower's, mother's or father's benefits and receive
a Government pension for work that was not covered under social
security, your monthly benefits may be reduced because of that pension.
Special age 72 payments may also be reduced because of a Government
pension. For more information about this, see Sec. 404.408a which covers
reductions for Government pensions and Sec. 404.384(c) which covers
special age 72 payments.
(f) Rounding. After all other deductions or reductions, we reduce
any monthly benefit that is not a multiple of $1 to the next lower
multiple of $1.
[68 FR 4702, Jan. 30, 2003]
Sec. 404.305 When you may not be entitled to benefits.
In addition to the situations described in Sec. 404.304 when you may
not receive a benefit payment, there are special circumstances when you
may not be entitled to benefits. These circumstances are--
(a) Waiver of benefits. If you have waived benefits and been granted
a tax exemption on religious grounds as described in Secs. 404.1039 and
404.1075, no one may become entitled to any benefits or payments on your
earnings record and you may not be entitled to benefits on anyone else's
earnings record; and
(b) Person's death caused by an intentional act. You may not become
entitled to or continue to receive any survivor's benefits or payments
on the earnings record of any person, or receive any underpayment due a
person, if you were convicted of a felony or an act in the nature of a
felony of intentionally causing that person's death. If you were subject
to the juvenile justice system, you may not become entitled to or
continue to receive survivor's benefits or payments on the earnings
record of any person, or receive any underpayment due a person, if you
were found by a court of competent jurisdiction to have intentionally
caused that person's death by committing an act which, if committed by
an adult, would have been considered a felony or an act in the nature of
a felony.
[44 FR 34481, June 15, 1979, as amended at 47 FR 42098, Sept. 24, 1982;
52 FR 19136, May 21, 1987, 52 FR 21410, June 5, 1987; 58 FR 64888, Dec.
10, 1993]
Old-Age and Disability Benefits
Sec. 404.310 When am I entitled to old-age benefits?
We will find you entitled to old-age benefits if you meet the
following three conditions:
(a) You are at least 62 years old;
(b) You have enough social security earnings to be fully insured as
defined in Secs. 404.110 through 404.115; and
(c) You apply; or you are entitled to disability benefits up to the
month you attain full retirement age (as defined in Sec. 404.409). When
you attain full retirement age, your disability benefits automatically
become old-age benefits.
[68 FR 4702, Jan. 30, 2003]
Sec. 404.311 When does my entitlement to old-age benefits begin and end?
(a) We will find you entitled to old-age benefits beginning with:
(1) If you have attained full retirement age (as defined in
Sec. 404.409), the first month covered by your application in which you
meet all requirements for entitlement; or
(2) If you have attained age 62, but have not attained full
retirement age (as defined in Sec. 404.409), the first month covered by
your application throughout which you meet all requirements for
entitlement.
(b) We will find your entitlement to old-age benefits ends with the
month before the month you die.
[68 FR 4702, Jan. 30, 2003]
Sec. 404.312 How is my old-age benefit amount calculated?
(a) If your old-age benefits begin in the month you attain full
retirement age (as defined in Sec. 404.409), your monthly benefit is
equal to the primary insurance amount (as explained in subpart C of this
part).
[[Page 110]]
(b) If your old-age benefits begin after the month you attain full
retirement age, your monthly benefit is your primary insurance amount
plus an increase for retiring after full retirement age. See
Sec. 404.313 for a description of these increases.
(c) If your old-age benefits begin before the month you attain full
retirement age, your monthly benefit amount is the primary insurance
amount minus a reduction for each month you are entitled before you
attain full retirement age. These reductions are described in
Secs. 404.410 through 404.413.
[68 FR 4702, Jan. 30, 2003]
Sec. 404.313 What are delayed retirement credits and how do they increase my old-age benefit amount?
(a) What are delayed retirement credits and how do I earn them?
Delayed retirement credits (DRCs) are credits we use to increase the
amount of your old-age benefit amount. You may earn a credit for each
month during the period beginning with the month you attain full
retirement age (as defined in Sec. 404.409) and ending with the month
you attain age 70 (72 before 1984). You earn a credit for each month for
which you are fully insured and eligible but do not receive an old-age
benefit either because you do not apply for benefits or because you
elect to voluntarily suspend your benefits to earn DRCs. Even if you
were entitled to old-age benefits before full retirement age you may
still earn DRCs for months during the period from full retirement age to
age 70, if you voluntarily elect to suspend those benefits.
(b) How is the amount of the increase because of delayed retirement
credits computed? (1) Computation of the increase amount. The amount of
the increase depends on your date of birth and the number of credits you
earn. We total the number of credits (which need not be consecutive) and
multiply that number by the applicable percentage from paragraph (b)(2)
of this section. We then multiply the result by your benefit amount and
round the answer to the next lower multiple of 10 cents (if the answer
is not already a multiple of 10 cents). We add the result to your
benefit amount. If a supplementary medical insurance premium is involved
it is then deducted. The result is rounded to the next lower multiple of
$1 (if the answer is not already a multiple of $1).
(2) Credit Percentages. The applicable credit amount for each month
of delayed retirement can be found in the table below.
------------------------------------------------------------------------
The credit for each month you
If your date of birth is: delay retirement is:
------------------------------------------------------------------------
Before 1/2/1917........................ \1/12\ of 1%
1/2/1917--1/1/1925..................... \1/4\ of 1%
1/2/1925--1/1/1927..................... \7/24\ of 1%
1/2/1927--1/1/1929..................... \1/3\ of 1%
1/2/1929--1/1/1931..................... \3/8\ of 1%
1/2/1931--1/1/1933..................... \5/12\ of 1%
1/2/1933--1/1/1935..................... \11/24\ of 1%
1/2/1935--1/1/1937..................... \1/2\ of 1%
1/2/1937--1/1/1939..................... \13/24\ of 1%
1/2/1939--1/1/1941..................... \7/12\ of 1%
1/2/1941--1/1/1943..................... \5/8\ of 1%
After 1/1/1943......................... \2/3\ of 1%
------------------------------------------------------------------------
Example: Alan was qualified for old-age benefits when he reached age
65 on January 15, 1998. He decided not to apply for old-age benefits
immediately because he was still working. When he became age 66 in
January 1999, he stopped working and applied for benefits beginning with
that month. Based on his earnings, his primary insurance amount was
$782.60. However, because he did not receive benefits immediately upon
attainment of full retirement age (65), he is due an increase based on
his delayed retirement credits. He earned 12 credits, one for each month
from January 1998 through December 1998. Based on his date of birth of
1/15/1933 he is entitled to a credit of 11/24 of one percent for each
month of delayed retirement. 12 credits multiplied by 11/24 of one
percent equals a credit of 5.5 percent. 5.5% of the primary insurance
amount of $782.60 is $43.04 which is rounded to $43.00, the next lower
multiple of 10 cents. $43.00 is added to the primary insurance amount,
$782.60. The result, $825.60 is the monthly benefit amount. If a
supplementary medical insurance premium is involved it is then deducted.
The result is rounded to the next lower multiple of $1 (if the answer is
not already a multiple of $1).
(c) When is the increase because of delayed retirement credits
effective?--(1) Credits earned after entitlement and before the year of
attainment of age 70. If you are entitled to benefits, we examine our
records after the end of each calendar year to determine whether you
have earned delayed retirement credits during the previous year for
months when you were at or over full
[[Page 111]]
retirement age and you were fully insured and eligible for benefits but
did not receive them. Any increase in your benefit amount is effective
beginning with January of the year after the year the credits were
earned.
(2) Credits earned after entitlement in the year of attainment of
age 70. If you are entitled to benefits in the month you attain age 70,
we examine our records to determine if you earned any additional delayed
retirement credits during the calendar year in which you attained age
70. Any increase in your benefit amount is effective beginning with the
month you attained age 70.
(3) Credits earned prior to entitlement. If you are full retirement
age or older and eligible for old-age benefits but do not apply for
benefits, your delayed retirement credits for months from the month of
attainment of full retirement age through the end of the year prior to
the year of filing will be included in the computation of your initial
benefit amount. Credits earned in the year you attain age 70 will be
added in the month you attain age 70.
(d) How do delayed retirement credits affect the special minimum
primary insurance amount? We do not add delayed retirement credits to
your old-age benefit if your benefit is based on the special minimum
primary insurance amount described in Sec. 404.260. We add the delayed
retirement credits only to your old-age benefit based on your regular
primary insurance amount, i.e. as computed under one of the other
provisions of subpart C of this part. If your benefit based on the
regular primary insurance amount plus your delayed retirement credits is
higher than the benefit based on your special minimum primary insurance
amount, we will pay the higher amount to you. However, if the special
minimum primary insurance amount is higher than the regular primary
insurance amount without the delayed retirement credits, we will use the
special minimum primary insurance amount to determine the family maximum
and the benefits of others entitled on your earnings record.
(e) What is the effect of my delayed retirement credits on the
benefit amount of others entitled on my earnings record?--(1) Surviving
Spouse or Surviving Divorced Spouse. If you earn delayed retirement
credits during your lifetime, we will compute benefits for your
surviving spouse or surviving divorced spouse based on your regular
primary insurance amount plus the amount of those delayed retirement
credits. All delayed retirement credits, including any earned during the
year of death, can be used in computing the benefit amount for your
surviving spouse or surviving divorced spouse beginning with the month
of your death. We compute delayed retirement credits up to but not
including the month of death.
(2) Other Family Member. We do not use your delayed retirement
credits to increase the benefits of other family members entitled on
your earnings record.
(3) Family Maximum. We add delayed retirement credits to your
benefit after we compute the family maximum. However, we add delayed
retirement credits to your surviving spouse's or surviving divorced
spouse's benefit before we reduce for the family maximum.
[68 FR 4703, Jan. 30, 2003]
Sec. 404.315 Who is entitled to disability benefits?
(a) General. You are entitled to disability benefits while disabled
before attaining full retirement age as defined in Sec. 404.409 if--
(1) You have enough social security earnings to be insured for
disability, as described in Sec. 404.130;
(2) You apply;
(3) You have a disability, as defined in Sec. 404.1505, or you are
not disabled, but you had a disability that ended within the 12-month
period before the month you applied; and
(4) You have been disabled for 5 full consecutive months. This 5-
month waiting period begins with a month in which you were both insured
for disability and disabled. Your waiting period can begin no earlier
than the 17th month before the month you apply--no matter how long you
were disabled before then. No waiting period is required if you were
previously entitled to disability benefits or to a period of disability
under Sec. 404.320 any time within 5 years of the month you again became
disabled.
[[Page 112]]
(b) Prohibition against reentitlement to disability benefits if drug
addiction or alcoholism is a contributing factor material to the
determination of disability. You cannot be entitled to a period of
disability payments if drug addiction or alcoholism is a contributing
factor material to the determination of disability and your earlier
entitlement to disability benefits on the same basis terminated after
you received benefits for 36 months during which treatment was
available.
[44 FR 34481, June 15, 1979, as amended at 48 FR 21930, May 16, 1983; 51
FR 10616, Mar. 28, 1986; 51 FR 16166, May 1, 1986; 53 FR 43681, Oct. 28,
1988; 57 FR 30119, July 8, 1992; 60 FR 8145, Feb. 10, 1995; 68 FR 4704,
Jan. 30, 2003]
Sec. 404.316 When entitlement to disability benefits begins and ends.
(a) You are entitled to disability benefits beginning with the first
month covered by your application in which you meet all the other
requirements for entitlement. If a waiting period is required, your
benefits cannot begin earlier than the first month following that
period.
(b) Your entitlement to disability benefits ends with the earliest
of these months:
(1) The month before the month of your death;
(2) The month before the month you attain full retirement age as
defined in Sec. 404.409 (at full retirement age your disability benefits
will be automatically changed to old-age benefits);
(3) The second month after the month in which your disability ends
as provided in Sec. 404.1594(b)(1), unless continued subject to
paragraph (c); or (4) subject to the provisions of paragraph (d) of this
section, the month before your termination month (Sec. 404.325).
(c)(1) Your benefits, and those of your dependents, may be continued
after your impairment is no longer disabling if--
(i) Your disability did not end before December 1980, the effective
date of this provision of the law;
(ii) You are participating in an appropriate program of vocational
rehabilitation, that is, one that has been approved under a State plan
approved under title I of the Rehabilitation Act of 1973 and which meets
the requirements outlined in 34 CFR part 361 for a rehabilitation
program;
(iii) You began the program before your disability ended; and
(iv) We have determined that your completion of the program, or your
continuation in the program for a specified period of time, will
significantly increase the likelihood that you will not have to return
to the disability benefit rolls.
Example: While under a disability from a severe back impairment,
``A'' begins a vocational rehabilitation program under the direction of
a State vocational rehabilitation agency with a vocational goal of
jewelry repairman. ``A'' is 50 years old, has a high school education,
and worked as a route salesman for a bread company for 6 years before
becoming disabled. Before ``A'' completes his training, his disability
status is reviewed and a determination is made that he is able to do
light work. Considering his age, education and work experience, ``A'' is
no longer disabled. However, if ``A'' is able to work as a jewelry
repairman, he will be considered able to engage in substantial gainful
activity even if he can do only sedentary work. Therefore, it is
determined that ``A's'' completion of the vocational rehabilitation
program will significantly increase the likelihood that he will be
permanently removed from the disability rolls. ``A'' will continue to
receive payments until he completes or stops his program, or until it is
determined that continued participation will no longer significantly
increase the likelihood of permanent removal from the disability rolls.
(2) Your benefits generally will be stopped with the month--
(i) You complete the program;
(ii) You stop participating in the program for any reason; or
(iii) We determine that your continuing participation in the program
will no longer significantly increase the likelihood that you will be
permanently removed from the disability benefit rolls.
Exception: In no case will your benefits be stopped with a month
earlier than the second month after the month your disability ends.
(d) If, after November 1980, you have a disabling impairment
(Sec. 404.1511), you will be paid benefits for all months in which you
do not do substantial gainful activity during the reentitlement period
(Sec. 404.1592a) following the end of your trial work period
(Sec. 404.1592). If
[[Page 113]]
you are unable to do substantial gainful activity in the first month
following the reentitlement period, we will pay you benefits until you
are able to do substantial gainful activity. (Earnings during your trial
work period do not affect the payment of your benefit.) You will also be
paid benefits for the first month after the trial work period in which
you do substantial gainful activity and the two succeeding months,
whether or not you do substantial gainful activity during those
succeeding months. After those three months, you cannot be paid benefits
for any months in which you do substantial gainful activity.
(e) If drug addiction or alcoholism is a contributing factor
material to the determination of disability as described in
Sec. 404.1535, you may receive disability benefits on that basis for no
more than 36 months regardless of the number of entitlement periods you
may have. Not included in these 36 months are months in which treatment
for your drug addiction or alcoholism is not available, months before
March 1995, and months for which your benefit payments were suspended
for any reason. Benefits to your dependents may continue after the 36
months of benefits if, but for the operation of this paragraph, you
would otherwise be entitled to benefits based on disability. The 36-
month limit is no longer effective for benefits for months beginning
after September 2004.
(f) If drug addiction or alcoholism is a contributing factor
material to the determination of disability as described in
Sec. 404.1535 and your disability benefits are suspended for 12
consecutive months because of your failure to comply with treatment
requirements, your disability benefits will be terminated effective the
first month after such 12-month period. Benefits to your dependents may
continue after the 12-month period if, but for the operation of this
paragraph, you would otherwise be entitled to benefits based on
disability.
[44 FR 34481, June 15, 1979, as amended at 47 FR 31542, July 21, 1982;
47 FR 52693, Nov. 23, 1982; 49 FR 22270, May 29, 1984; 51 FR 17617, May
14, 1986; 60 FR 8145, Feb. 10, 1995; 68 FR 4704, Jan. 30, 2003]
Sec. 404.317 How is the amount of my disability benefit calculated?
Your monthly benefit is equal to the primary insurance amount (PIA).
This amount is computed under the rules in subpart C of this part as if
it was an old-age benefit, and as if you were 62 years of age at the
beginning of the 5-month waiting period mentioned in Sec. 404.315(a). If
the 5-month waiting period is not required because of your previous
entitlement, your PIA is figured as if you were 62 years old when you
become entitled to benefits this time. Your monthly benefit amount may
be reduced if you receive worker's compensation or public disability
payments before you become 65 years old as described in Sec. 404.408.
Your benefits may also be reduced if you were entitled to other
retirement-age benefits before you attained full retirement age (as
defined in Sec. 404.409).
[68 FR 4704, Jan. 30, 2003]
Sec. 404.320 Who is entitled to a period of disability.
(a) General. A period of disability is a continuous period of time
during which you are disabled. If you become disabled, you may apply to
have our records show how long your disability lasts. You may do this
even if you do not qualify for disability benefits. If we establish a
period of disability for you, the months in that period of time will not
be counted in figuring your average earnings. If benefits payable on
your earnings record would be denied or reduced because of a period of
disability, the period of disability will not be taken into
consideration.
(b) Who is entitled. You are entitled to a period of disability if
you meet all the following conditions:
(1) You have or had a disability as defined in Sec. 404.1505.
(2) You are insured for disability, as defined in Sec. 404.130 in
the calendar quarter in which you became disabled, or in a later
calendar quarter in which you were disabled.
(3) You file an application while disabled, or no later than 12
months after the month in which your period of disability ended. If you
were unable to apply within the 12-month period after your period of
disability ended because
[[Page 114]]
of a physical or mental condition as described in Sec. 404.322, you may
apply not more than 36 months after the month your disability ended.
(4) At least 5 consecutive months go by from the month in which your
period of disability begins and before the month in which it would end.
[44 FR 34481, June 15, 1979, as amended at 48 FR 21930, May 16, 1983; 51
FR 10616, Mar. 28, 1986]
Sec. 404.321 When a period of disability begins and ends.
(a) When a period of disability begins. Your period of disability
begins on the day your disability begins if you are insured for
disability on that day. If you are not insured for disability on that
day, your period of disability will begin on the first day of the first
calendar quarter after your disability began in which you become insured
for disability. Your period of disability may not begin after you have
attained full retirement age as defined in Sec. 404.409.
(b) When disability ended before December 1, 1980. Your period of
disability ends on the last day of the month before the month in which
you become 65 years old or, if earlier, the last day of the second month
following the month in which your disability ended.
(c) When disability ends after November 1980. Your period of
disability ends with the close of whichever of the following is the
earliest--
(1) The month before the month in which you attain full retirement
age as defined in Sec. 404.409.
(2) The month immediately preceding your termination month
(Sec. 404.325); or
(3) If you perform substantial gainful activity during the
reentitlement period described in Sec. 404.1592a, the last month for
which you received benefits.
(d) When drug addiction or alcoholism is a contributing factor
material to the determination of disability. (1) Your entitlement to
receive disability benefit payments ends the month following the month
in which, regardless of the number of entitlement periods you may have
had based on disability where drug addiction or alcoholism is a
contributing factor material to the determination of disability (as
described in Sec. 404.1535)--
(i) You have received a total of 36 months of disability benefits.
Not included in these 36 months are months in which treatment for your
drug addiction or alcoholism is not available, months before March 1995,
and months for which your benefits were suspended for any reason; or
(ii) Your benefits have been suspended for 12 consecutive months
because of your failure to comply with treatment requirements.
(2) For purposes other than payment of your disability benefits,
your period of disability continues until the termination month as
explained in Sec. 404.325.
[49 FR 22271, May 29, 1984, as amended at 60 FR 8145, Feb. 10, 1995; 65
FR 42782, July 11, 2000; 68 FR 4704, Jan. 30, 2003]
Sec. 404.322 When you may apply for a period of disability after a delay due to a physical or mental condition.
If because of a physical or mental condition you did not apply for a
period of disability within 12 months after your period of disability
ended, you may apply not more than 36 months after the month in which
your disability ended. Your failure to apply within the 12-month time
period will be considered due to a physical or mental condition if
during this time--
(a) Your physical condition limited your activities to such an
extent that you could not complete and sign an application; or
(b) You were mentally incompetent.
Sec. 404.325 The termination month.
If you do not have a disabling impairment, your termination month is
the third month following the month in which your impairment is not
disabling even if it occurs during the trial work period or the
reentitlement period. If you continue to have a disabling impairment and
complete 9 months of trial work, your termination month will be the
third month following the earliest month you perform substantial gainful
activity or are determined able to perform substantial gainful activity;
however, in no event will the termination month under these
circumstances be earlier than the first month after the end of the
reentitlement period described in Sec. 404.1592a.
[[Page 115]]
Example 1: You complete your trial work period in December 1999. You
then work at the substantial gainful activity level and continue to do
so throughout the 36 months following completion of your trial work
period and thereafter. Your termination month will be January 2003,
which is the first month in which you performed substantial gainful
activity after the end of your 36-month reentitlement period. This is
because, for individuals who have disabling impairments (see
Sec. 404.1511) and who work, the termination month cannot occur before
the first month after the end of the 36-month reentitlement period.
Example 2: You complete your trial work period in December 1999, but
you do not do work showing your ability to do substantial gainful
activity during your trial work period or throughout your 36-month
reentitlement period. In April 2003, 4 months after your reentitlement
period ends, you become employed at work that we determine is
substantial gainful activity, considering all of our rules in
Sec. Sec. 404.1574 and 404.1574a. Your termination month will be July
2003; that is, the third month after the earliest month you performed
substantial gainful activity.
[65 FR 42782, July 11, 2000]
Benefits for Spouses and Divorced Spouses
Sec. 404.330 Who is entitled to wife's or husband's benefits.
You are entitled to benefits as the wife or husband of an insured
person who is entitled to old-age or disability benefits if--
(a) You are the insured's wife or husband based upon a relationship
described in Secs. 404.345 through 404.346 and one of the following
conditions is met:
(1) Your relationship to the insured as a wife or husband has lasted
at least 1 year. (You will be considered to meet the 1-year duration
requirement throughout the month in which the first anniversary of the
marriage occurs.)
(2) You and the insured are the natural parents of a child; or
(3) In the month before you married the insured you were entitled
to, or if you had applied and been old enough you could have been
entitled to, any of these benefits or payments: Wife's, husband's,
widow's, widower's, or parent's benefits; disabled child's benefits; or
annuity payments under the Railroad Retirement Act for widows, widowers,
parents, or children 18 years old or older;
(b) You apply;
(c) You are age 62 or older throughout a month and you meet all
other conditions of entitlement, or you are the insured's wife or
husband and have in your care (as defined in Secs. 404.348 through
404.349), throughout a month in which all other conditions of
entitlement are met, a child who is entitled to child's benefits on the
insured's earnings record and the child is either under age 16 or
disabled; and
(d) You are not entitled to an old-age or disability benefit based
upon a primary insurance amount that is equal to or larger than the full
wife's or husband's benefit.
[44 FR 34481, June 15, 1979; 44 FR 56691, Oct. 2, 1979, as amended at 45
FR 68932, Oct. 17, 1980; 48 FR 21926, May 16, 1983]
Sec. 404.331 Who is entitled to wife's or husband's benefits as a divorced spouse.
You are entitled to wife's or husband's benefits as the divorced
wife or divorced husband of an insured person who is entitled to old-age
or disability benefits if you meet the requirements of paragraphs (a)
through (e). You are entitled to these benefits even though the insured
person is not yet entitled to benefits, if the insured person is at
least age 62 and if you meet the requirements of paragraphs (a) through
(f). The requirements are that--
(a) You are the insured's divorced wife or divorced husband and--
(1) You were validly married to the insured under State law as
described in Sec. 404.345 or you were deemed to be validly married as
described in Sec. 404.346; and
(2) You were married to the insured for at least 10 years
immediately before your divorce became final;
(b) You apply;
(c) You are not married. (For purposes of meeting this requirement,
you will be considered not to be married throughout the month in which
the divorce occurred);
(d) You are age 62 or older throughout a month in which all other
conditions of entitlement are met; and
[[Page 116]]
(e) You are not entitled to an old-age or disability benefit based
upon a primary insurance amount that is equal to or larger than the full
wife's or husband's benefit.
(f) You have been divorced from the insured person for at least 2
years.
[44 FR 34481, June 15, 1979, as amended at 48 FR 21926, May 16, 1983; 51
FR 11911, Apr. 8, 1986; 58 FR 64891, Dec. 10, 1993]
Sec. 404.332 When wife's and husband's benefits begin and end.
(a) You are entitled to wife's or husband's benefits beginning with
the first month covered by your application in which you meet all the
other requirements for entitlement under Sec. 404.330 or Sec. 404.331.
However, if you are entitled as a divorced spouse before the insured
person becomes entitled, your benefits cannot begin before January 1985
based on an application filed no earlier than that month.
(b) Your entitlement to benefits ends with the month before the
month in which one of the following events first occurs:
(1) You become entitled to an old-age or disability benefit based
upon a primary insurance amount that is equal to or larger than the full
wife's or husband's benefit.
(2) You are the wife or husband and are divorced from the insured
person unless you meet the requirements for benefits as a divorced wife
or divorced husband as described in Sec. 404.331.
(3) You are the divorced wife or divorced husband and you marry
someone, other than the insured who is entitled to old-age benefits,
unless that other person is someone entitled to benefits as a wife,
husband, widow, widower, father, mother, parent or disabled child. Your
benefits will end if you remarry the insured who is not yet entitled to
old-age benefits.
(4) If you are under age 62, there is no longer a child of the
insured who is under age 16 or disabled and entitled to child's benefits
on the insured's earnings record. (See paragraph (c) of this section if
you were entitled to wife's or husband's benefits for August 1981 on the
basis of having a child in care.) (If you no longer have in your care a
child who is under age 16 or disabled and entitled to child's benefits
on the insured's earnings record, your benefits may be subject to
deductions as provided in Sec. 404.421.)
(5) The insured person dies or is no longer entitled to old age or
disability benefits. Exception: Your benefits will continue if the
insured person was entitled to disability benefits based on a finding
that drug addiction or alcoholism was a contributing factor material to
the determination of his or her disability (as described in
Sec. 404.1535), the insured person's benefits ended after 36 months of
benefits (see Sec. 404.316(e)) or 12 consecutive months of suspension
for noncompliance with treatment (see Sec. 404.316(f)), and but for the
operation of these provisions, the insured person would remain entitled
to benefits based on disability.
(6) If your benefits are based upon a deemed valid marriage and you
have not divorced the insured, you marry someone other than the insured.
(7) You die.
(8) You became entitled as the divorced wife or the divorced husband
before the insured person became entitled, but he or she is no longer
insured.
(c) If you were entitled to wife's or husband's benefits for August
1981 on the basis of having a child in care, your entitlement will
continue until September 1983, until the child reaches 18 (unless
disabled) or is otherwise no longer entitled to child's benefits, or
until one of the events described in paragraph (b) (1), (2), (3), (5),
(6) or (7) of this section occurs, whichever is earliest.
[44 FR 34481, June 15, 1979, as amended at 48 FR 21926, May 16, 1983; 49
FR 24115, June 12, 1984; 51 FR 11911, Apr. 8, 1986; 58 FR 64891, Dec.
10, 1993; 60 FR 8145, Feb. 10, 1995; 64 FR 14608, Mar. 26, 1999]
Sec. 404.333 Wife's and husband's benefit amounts.
Your wife's or husband's monthly benefit is equal to one-half the
insured person's primary insurance amount. If you are entitled as a
divorced wife or as a divorced husband before the insured person becomes
entitled, we will compute the primary insurance amount as if he or she
became entitled to old-age benefits in the first month you are entitled
as a divorced wife or as a divorced husband. The amount of
[[Page 117]]
your monthly benefit may change as explained in Sec. 404.304.
[51 FR 11912, Apr. 8, 1986]
Sec. 404.335 How do I become entitled to widow's or widower's benefits?
We will find you entitled to benefits as the widow or widower of a
person who died fully insured if you meet the requirements in paragraphs
(a) through (e) of this section:
(a) You are the insured's widow or widower based upon a relationship
described in Secs. 404.345 through 404.346, and you meet one of the
conditions in paragraphs (a)(1) through (4) of this section:
(1) Your relationship to the insured as a wife or husband lasted for
at least 9 months immediately before the insured died.
(2) Your relationship to the insured as a wife or husband did not
last 9 months before the insured died, but at the time of your marriage
the insured was reasonably expected to live for 9 months, and you meet
one of the conditions in paragraphs (a)(2)(i) through (iii) of this
section:
(i) The death of the insured was accidental. The death is accidental
if it was caused by an event that the insured did not expect; it was the
result of bodily injuries received from violent and external causes; and
as a direct result of these injuries, death occurred not later than 3
months after the day on which the bodily injuries were received. An
intentional and voluntary suicide will not be considered an accidental
death.
(ii) The death of the insured occurred in the line of duty while he
or she was serving on active duty as a member of the uniformed services
as defined in Sec. 404.1019.
(iii) You had been previously married to the insured for at least 9
months.
(3) You and the insured were the natural parents of a child; or you
were married to the insured when either of you adopted the other's child
or when both of you adopted a child who was then under 18 years old.
(4) In the month before you married the insured, you were entitled
to or, if you had applied and had been old enough, could have been
entitled to any of these benefits or payments: widow's, widower's,
father's (based on the record of a fully insured individual), mother's
(based on the record of a fully insured individual), wife's, husband's,
parent's, or disabled child's benefits; or annuity payments under the
Railroad Retirement Act for widows, widowers, parents, or children age
18 or older.
(b) You apply, except that you need not apply again if you meet one
of the conditions in paragraphs (b)(1) through (4) of this section:
(1) You are entitled to wife's or husband's benefits for the month
before the month in which the insured dies and you have attained full
retirement age (as defined in Sec. 404.409) or you are not entitled to
either old-age or disability benefits.
(2) You are entitled to mother's or father's benefits for the month
before the month in which you attained full retirement age (as defined
in Sec. 404.409).
(3) You are entitled to wife's or husband's benefits and to either
old-age or disability benefits in the month before the month of the
insured's death, you are under full retirement age (as defined in
Sec. 404.409) in the month of death, and you have filed a Certificate of
Election in which you elect to receive reduced widow's or widower's
benefits.
(4) You applied in 1990 for widow's or widower's benefits based on
disability and you meet both of the conditions in paragraphs (b)(4)(i)
and (ii) of this section:
(i) You were entitled to disability insurance benefits for December
1990, or eligible for supplemental security income or federally
administered State supplementary payments, as specified in subparts B
and T of part 416 of this chapter, respectively, for January 1991.
(ii) You were found not disabled for any month based on the
definition of disability in Secs. 404.1577 and 404.1578, as in effect
prior to January 1991, but would have been entitled if the standard in
Sec. 404.1505(a) had applied. (This exception to the requirement for
filing an application is effective only with respect to benefits payable
for months after December 1990.)
(c) You are at least 60 years old; or you are at least 50 years old
and have a disability as defined in Sec. 404.1505 and you meet all of
the conditions in paragraphs (c)(1) through (4) of this section:
(1) Your disability started not later than 7 years after the insured
died or 7
[[Page 118]]
years after you were last entitled to mother's or father's benefits or
to widow's or widower's benefits based upon a disability, whichever
occurred last.
(2) Your disability continued during a waiting period of 5 full
consecutive months, unless months beginning with the first month of
eligibility for supplemental security income or federally administered
State supplementary payments are counted, as explained in the Exception
in paragraph (c)(3) of this section. The waiting period may begin no
earlier than the 17th month before you applied; the fifth month before
the insured died; or if you were previously entitled to mother's,
father's, widow's, or widower's benefits, the 5th month before your
entitlement to benefits ended. If you were previously entitled to
widow's or widower's benefits based upon a disability, no waiting period
is required.
(3) Exception: For monthly benefits payable for months after
December 1990, if you were or have been eligible for supplemental
security income or federally administered State supplementary payments,
as specified in subparts B and T of part 416 of this chapter,
respectively, your disability need not have continued through a
separate, full 5-month waiting period before you may begin receiving
benefits. We will include as months of the 5-month waiting period the
months in a period beginning with the first month you received
supplemental security income or a federally administered State
supplementary payment and continuing through all succeeding months,
regardless of whether the months in the period coincide with the months
in which your waiting period would have occurred, or whether you
continued to be eligible for supplemental security income or a federally
administered State supplementary payment after the period began, or
whether you met the nondisability requirements for entitlement to
widow's or widower's benefits. However, we will not pay you benefits
under this provision for any month prior to January 1991.
(4) You have not previously received 36 months of payments based on
disability when drug addiction or alcoholism was a contributing factor
material to the determination of disability (as described in
Sec. 404.1535), regardless of the number of entitlement periods you may
have had, or your current application for widow's or widower's benefits
is not based on a disability where drug addiction or alcoholism is a
contributing factor material to the determination of disability.
(d) You are not entitled to an old-age benefit that is equal to or
larger than the insured person's primary insurance amount.
(e) You are unmarried, unless for benefits for months after 1983 you
meet one of the conditions in paragraphs (e)(1) through (3) of this
section:
(1) You remarried after you became 60 years old.
(2) You are now age 60 or older and you meet both of the conditions
in paragraphs (e)(2)(i) and (ii) of this section:
(i) You remarried after attaining age 50 but before attaining age
60.
(ii) At the time of the remarriage, you were entitled to widow's or
widower's benefits as a disabled widow or widower.
(3) You are now at least age 50, but not yet age 60 and you meet
both of the conditions in paragraphs (e)(3)(i) and (ii) of this section:
(i) You remarried after attaining age 50.
(ii) You met the disability requirements in paragraph (c) of this
section at the time of your remarriage (i.e., your disability began
within the specified time and before your remarriage).
[68 FR 4704, Jan. 30, 2003]
Sec. 404.336 How do I become entitled to widow's or widower's benefits as a surviving divorced spouse?
We will find you entitled to widow's or widower's benefits as the
surviving divorced wife or the surviving divorced husband of a person
who died fully insured if you meet the requirements in paragraphs (a)
through (e) of this section:
(a) You are the insured's surviving divorced wife or surviving
divorced husband and you meet both of the conditions in paragraphs
(a)(1) and (2) of this section:
(1) You were validly married to the insured under State law as
described in
[[Page 119]]
Sec. 404.345 or are deemed to have been validly married as described in
Sec. 404.346.
(2) You were married to the insured for at least 10 years
immediately before your divorce became final.
(b) You apply, except that you need not apply again if you meet one
of the conditions in paragraphs (b)(1) through (4) of this section:
(1) You are entitled to wife's or husband's benefits for the month
before the month in which the insured dies and you have attained full
retirement age (as defined in Sec. 404.409) or you are not entitled to
old-age or disability benefits.
(2) You are entitled to mother's or father's benefits for the month
before the month in which you attain full retirement age (as defined in
Sec. 404.409).
(3) You are entitled to wife's or husband's benefits and to either
old-age or disability benefits in the month before the month of the
insured's death, you have not attained full retirement age (as defined
in Sec. 404.409) in the month of death, and you have filed a Certificate
of Election in which you elect to receive reduced widow's or widower's
benefits.
(4) You applied in 1990 for widow's or widower's benefits based on
disability, and you meet the requirements in both paragraphs (b)(4)(i)
and (ii) of this section:
(i) You were entitled to disability insurance benefits for December
1990 or eligible for supplemental security income or federally
administered State supplementary payments, as specified in subparts B
and T of part 416 of this chapter, respectively, for January 1991.
(ii) You were found not disabled for any month based on the
definition of disability in Secs. 404.1577 and 404.1578, as in effect
prior to January 1991, but would have been entitled if the standard in
Sec. 404.1505(a) had applied. (This exception to the requirement for
filing an application is effective only with respect to benefits payable
for months after December 1990.)
(c) You are at least 60 years old; or you are at least 50 years old
and have a disability as defined in Sec. 404.1505 and you meet all of
the conditions in paragraphs (c)(1) through (4) of this section:
(1) Your disability started not later than 7 years after the insured
died or 7 years after you were last entitled to mother's or father's
benefits or to widow's or widower's benefits based upon a disability,
whichever occurred last.
(2) Your disability continued during a waiting period of 5 full
consecutive months, unless months beginning with the first month of
eligibility for supplemental security income or federally administered
State supplementary payments are counted, as explained in the Exception
in paragraph (c)(3) of this section. This waiting period may begin no
earlier than the 17th month before you applied; the fifth month before
the insured died; or if you were previously entitled to mother's,
father's, widow's, or widower's benefits, the 5th month before your
previous entitlement to benefits ended. If you were previously entitled
to widow's or widower's benefits based upon a disability, no waiting
period is required.
(3) Exception: For monthly benefits payable for months after
December 1990, if you were or have been eligible for supplemental
security income or federally administered State supplementary payments,
as specified in subparts B and T of part 416 of this chapter,
respectively, your disability does not have to have continued through a
separate, full 5-month waiting period before you may begin receiving
benefits. We will include as months of the 5-month waiting period the
months in a period beginning with the first month you received
supplemental security income or a federally administered State
supplementary payment and continuing through all succeeding months,
regardless of whether the months in the period coincide with the months
in which your waiting period would have occurred, or whether you
continued to be eligible for supplemental security income or a federally
administered State supplementary payment after the period began, or
whether you met the nondisability requirements for entitlement to
widow's or widower's benefits. However, we will not pay you benefits
under this provision for any month prior to January 1991.
(4) You have not previously received 36 months of payments based on
disability when drug addiction or alcoholism was a contributing factor
material to the determination of disability
[[Page 120]]
(as described in Sec. 404.1535), regardless of the number of entitlement
periods you may have had, or your current application for widow's or
widower's benefits is not based on a disability where drug addiction or
alcoholism is a contributing factor material to the determination of
disability.
(d) You are not entitled to an old-age benefit that is equal to or
larger than the insured person's primary insurance amount.
(e) You are unmarried, unless for benefits for months after 1983 you
meet one of the conditions in paragraphs (e)(1) through (3) of this
section:
(1) You remarried after you became 60 years old.
(2) You are now age 60 or older and you meet both of the conditions
in paragraphs (e)(2)(i) and (ii) of this section:
(i) You remarried after attaining age 50 but before attaining age
60.
(ii) At the time of the remarriage, you were entitled to widow's or
widower's benefits as a disabled widow or widower.
(3) You are now at least age 50 but not yet age 60 and you meet one
of the conditions in paragraphs (e)(3)(i) and (ii) of this section:
(i) You remarried after attaining age 50.
(ii) You met the disability requirements in paragraph (c) of this
section at the time of your remarriage (i.e., your disability began
within the specified time and before your remarriage).
[68 FR 4705, Jan. 30, 2003]
Sec. 404.337 When does my entitlement to widow's and widower's benefits start and end?
(a) We will find you entitled to widow's or widower's benefits under
Sec. 404.335 or Sec. 404.336 beginning with the first month covered by
your application in which you meet all other requirements for
entitlement.
(b) We will end your entitlement to widow's or widower's benefits at
the earliest of the following times:
(1) The month before the month in which you become entitled to an
old-age benefit that is equal to or larger than the insured's primary
insurance amount.
(2) The second month after the month your disability ends or, where
disability ends on or after December 1, 1980, the month before your
termination month (Sec. 404.325). However your payments are subject to
the provisions of paragraphs (c) and (d) of this section. Note: You may
remain eligible for payment of benefits if you attained full retirement
age (as defined in Sec. 404.409) before your termination month and you
meet the other requirements for widow's or widower's benefits.
(3) If drug addiction or alcoholism is a contributing factor
material to the determination of disability as described in
Sec. 404.1535, the month after the 12th consecutive month of suspension
for noncompliance with treatment or after 36 months of benefits on that
basis when treatment is available regardless of the number of
entitlement periods you may have had, unless you are otherwise disabled
without regard to drug addiction or alcoholism.
(4) The month before the month in which you die.
(c)(1) If you are entitled to widow's or widower's benefits based on
a disability and your impairment is no longer disabling, generally, we
will continue your benefits if you meet all the conditions in paragraphs
(c)(1)(i) through (iv) of this section:
(i) Your disability did not end before December 1980, the effective
date of this provision of the law.
(ii) You are participating in an appropriate program of vocational
rehabilitation as described in Sec. 404.316(c)(1)(ii).
(iii) You began the program before your disability ended.
(iv) We determined that your completion of the program, or your
continuation in the program for a specified period of time, would
significantly increase the likelihood that you will not have to return
to the disability benefit rolls.
(2) Generally, we will stop your benefits with the month you meet
one of the conditions in paragraphs (c)(2)(i) through (iii) of this
section:
(i) You complete the program.
(ii) You stop participating in the program for any reason.
[[Page 121]]
(iii) We determined that your continuing participation in the
program would no longer significantly increase the likelihood that you
will be permanently removed from the disability benefit rolls.
(iv) Exception: In no case will we stop your benefits with a month
earlier than the second month after the month your disability ends.
(d) If, after November 1980, you have a disabling impairment
(Sec. 404.1511), we will pay you benefits for all months in which you do
not do substantial gainful activity during the reentitlement period
(Sec. 404.1592a) following the end of your trial work period
(Sec. 404.1592). If you are unable to do substantial gainful activity in
the first month following the reentitlement period, we will pay you
benefits until you are able to do substantial gainful activity.
(Earnings during your trial work period do not affect the payment of
your benefits.) We will also pay you benefits for the first month after
the trial work period in which you do substantial gainful activity and
the two succeeding months, whether or not you do substantial gainful
activity during those succeeding months. After those three months, we
cannot pay you benefits for any months in which you do substantial
gainful activity.
[68 FR 4706, Jan. 30, 2003]
Sec. 404.338 How is the amount of my widow's or widower's benefit calculated?
Your widow's or widower's monthly benefit is equal to the insured
person's primary insurance amount. If the insured person died before
reaching age 62 and you are first eligible after 1984, we may compute a
special primary insurance amount to determine the amount of your monthly
benefit (see Sec. 404.212(b)). We may increase your monthly benefit
amount if the insured person earned delayed retirement credit after full
retirement age (as defined in Sec. 404.409) by working or by delaying
filing for benefits (see Sec. 404.313). The amount of your monthly
benefit may change as explained generally in Sec. 404.304. In addition,
your monthly benefit will be reduced if the insured person was entitled
to old-age benefits that were reduced for age because he or she chose to
receive them before attaining full retirement age. In this instance,
your benefit is reduced, if it would otherwise be higher, to either the
amount the insured would have been entitled to if still alive or 82\1/2\
percent of his or her primary insurance amount, whichever is larger.
[68 FR 4706, Jan. 30, 2003]
Sec. 404.339 Who is entitled to mother's or father's benefits.
You may be entitled as the widow or widower to mother's or father's
benefits on the earnings record of someone who was fully or currently
insured when he or she died. You are entitled to these benefits if--
(a) You are the widow or widower of the insured and meet the
conditions described in Sec. 404.335(a)(1);
(b) You apply for these benefits; or you were entitled to wife's
benefits for the month before the insured died;
(c) You are unmarried;
(d) You are not entitled to widow's or widower's benefits, or to an
old-age benefit that is equal to or larger than the full mother's or
father's benefit; and
(e) You have in your care the insured's child who is entitled to
child's benefits and he or she is under 16 years old or is disabled.
Sections 404.348 and 404.349 describe when a child is in your care.
[44 FR 34481, June 15, 1979, as amended at 48 FR 21927, May 16, 1983]
Sec. 404.340 Who is entitled to mother's or father's benefits as a surviving divorced spouse.
You may be entitled to mother's or father's benefits as the suviving
divorced wife or the surviving divorced husband of someone who was fully
or currently insured when he or she died. You are entitled to these
benefits if--
(a) You were validly married to the insured under State law as
described in Sec. 404.345 or you were deemed to be validly married as
described in Sec. 404.346 but the marriage ended in a final divorce and-
-
(1) You are the mother or father of the insured's child; or
(2) You were married to the insured when either of you adopted the
other's child or when both of you adopted a
[[Page 122]]
child and the child was then under 18 years old;
(b) You apply for these benefits; or you were entitled to wife's or
husband's benefits for the month before the insured died;
(c) You are unmarried;
(d) You are not entitled to widow's or widower's benefits, or to an
old-age benefit that is equal to or larger than the full mother's or
father's benefit; and
(e) You have in your care the insured's child who is under age 16 or
disabled, is your natural or adopted child, and is entitled to child's
benefits on the insured person's record. Sections 404.348 and 404.349
describe when a child is in your care.
[44 FR 34481, June 15, 1979, as amended at 45 FR 68932, Oct. 17, 1980;
48 FR 21927, May 16, 1983; 58 FR 64891, Dec. 10, 1993]
Sec. 404.341 When mother's and father's benefits begin and end.
(a) You are entitled to mother's or father's benefits beginning with
the first month covered by your application in which you meet all the
other requirements for entitlement.
(b) Your entitlement to benefits ends with the month before the
month in which one of the following events first occurs:
(1) You become entitled to a widow's or widower's benefit or to an
old-age benefit that is equal to or larger than the full mother's or
father's benefit.
(2) There is no longer a child of the insured who is under age 16 or
disabled and entitled to a child's benefit on the insured's earnings
record. (See paragraph (c) of this section if you were entitled to
mother's or father's benefits for August 1981.) (If you no longer have
in your care a child who is under age 16 or disabled and entitled to
child's benefits on the insured's earnings record, your benefits may be
subject to deductions as provided in Sec. 404.421.)
(3) You remarry. Your benefits will not end, however, if you marry
someone entitled to old-age, disability, wife's, husband's, widow's,
widower's, father's, mother's, parent's or disabled child's benefits.
(4) You die.
(c) If you were entitled to spouse's benefits on the basis of having
a child in care, or to mother's or father's benefits for August 1981,
your entitlement will continue until September 1983, until the child
reaches 18 (unless disabled) or is otherwise no longer entitled to
child's benefits, or until one of the events described in paragraph (b)
(1), (3), or (4) of this section occurs, whichever is earliest.
[44 FR 34481, June 15, 1979, as amended at 48 FR 21927, May 16, 1983; 49
FR 24115, June 12, 1984; 58 FR 64891, Dec. 10, 1993; 64 FR 14608, Mar.
26, 1999]
Sec. 404.342 Mother's and father's benefit amounts.
Your mother's or father's monthly benefit is equal to 75 percent of
the insured person's primary insurance amount. The amount of your
monthly benefit may change as explained in Sec. 404.304.
Sec. 404.344 Your relationship by marriage to the insured.
You may be eligible for benefits if you are related to the insured
person as a wife, husband, widow, or widower. To decide your
relationship to the insured, we look first to State laws. The State laws
that we use are discussed in Sec. 404.345. If your relationship cannot
be established under State law, you may still be eligible for benefits
if your relationship as the insured's wife, husband, widow, or widower
is based upon a deemed valid marriage as described in Sec. 404.346.
Sec. 404.345 Your relationship as wife, husband, widow, or widower under State law.
To decide your relationship as the insured's wife or husband, we
look to the laws of the State where the insured had a permanent home
when you applied for wife's or husband's benefits. To decide your
relationship as the insured's widow or widower, we look to the laws of
the State where the insured had a permanent home when he or she died. If
the insured's permanent home is not or was not in one of the 50 States,
the Commonwealth of Puerto Rico, the Virgin Islands, Guam, or American
Samoa, we look to the laws of the District of Columbia. For a definition
of permanent home, see Sec. 404.303. If you and the insured were validly
married
[[Page 123]]
under State law at the time you apply for wife's or husband's benefits
or at the time the insured died if you apply for widow's, widower's,
mother's, or father's benefits, the relationship requirement will be
met. The relationship requirement will also be met if under State law
you would be able to inherit a wife's, husband's, widow's, or widower's
share of the insured's personal property if he or she were to die
without leaving a will.
Sec. 404.346 Your relationship as wife, husband, widow, or widower based upon a deemed valid marriage.
(a) General. If your relationship as the insured's wife, husband,
widow, or widower cannot be established under State law as explained in
Sec. 404.345, you may be eligible for benefits based upon a deemed valid
marriage. You will be deemed to be the wife, husband, widow, or widower
of the insured if, in good faith, you went through a marriage ceremony
with the insured that would have resulted in a valid marriage except for
a legal impediment. A legal impediment includes only an impediment which
results because a previous marriage had not ended at the time of the
ceremony or because there was a defect in the procedure followed in
connection with the intended marriage. For example, a defect in the
procedure may be found where a marriage was performed through a
religious ceremony in a country that requires a civil ceremony for a
valid marriage. Good faith means that at the time of the ceremony you
did not know that a legal impediment existed, or if you did know, you
thought that it would not prevent a valid marriage.
(b) Entitlement based upon a deemed valid marriage. To be entitled
to benefits as a wife, husband, widow or widower as the result of a
deemed valid marriage, you and the insured must have been living in the
same household (see Sec. 404.347) at the time the insured died or, if
the insured is living, at the time you apply for benefits. However, a
marriage that had been deemed valid, shall continue to be deemed valid
if the insured individual and the person entitled to benefits as the
wife or husband of the insured individual are no longer living in the
same household at the time of death of the insured individual.
[44 FR 34481, June 15, 1979, as amended at 45 FR 65540, Oct. 3, 1980; 48
FR 21927, May 16, 1983; 58 FR 64892, Dec. 10, 1993]
Sec. 404.347 ``Living in the same household'' defined.
Living in the same household means that you and the insured
customarily lived together as husband and wife in the same residence.
You may be considered to be living in the same household although one of
you is temporarily absent from the residence. An absence will be
considered temporary if:
(a) It was due to service in the U.S. Armed Forces;
(b) It was 6 months or less and neither you nor the insured were
outside of the United States during this time and the absence was due to
business, employment, or confinement in a hospital, nursing home, other
medical institution, or a penal institution;
(c) It was for an extended separation, regardless of the duration,
due to the confinement of either you or the insured in a hospital,
nursing home, or other medical institution, if the evidence indicates
that you were separated solely for medical reasons and you otherwise
would have resided together; or
(d) It was based on other circumstances, and it is shown that you
and the insured reasonably could have expected to live together in the
near future.
[61 FR 41330, Aug. 8, 1996]
Sec. 404.348 When a child living with you is ``in your care''.
To become entitled to wife's benefits before you become 62 years old
or to mother's or father's benefits, you must have the insured's child
in your care. A child who has been living with you for at least 30 days
is in your care unless--
(a) The child is in active military service;
(b) The child is 16 years old or older and not disabled;
(c) The child is 16 years old or older with a mental disability, but
you do not actively supervise his or her activities and you do not make
important decisions about his or her needs, either alone or with help
from your spouse; or
[[Page 124]]
(d) The child is 16 years old or older with a physical disability,
but it is not necessary for you to perform personal services for him or
her. Personal services are services such as dressing, feeding, and
managing money that the child cannot do alone because of a disability.
[44 FR 34481, June 15, 1979, as amended at 48 FR 21927, May 16, 1983]
Sec. 404.349 When a child living apart from you is ``in your care''.
(a) In your care. A child living apart from you is in your care if--
(1) The child lived apart from you for not more than 6 months, or
the child's current absence from you is not expected to last over 6
months;
(2) The child is under 16 years old, you supervise his or her
activities and make important decisions about his or her needs, and one
of the following circumstances exist:
(i) The child is living apart because of school but spends at least
30 days vacation with you each year unless some event makes having the
vacation unreasonable; and if you and the child's other parent are
separated, the school looks to you for decisions about the child's
welfare;
(ii) The child is living apart because of your employment but you
make regular and substantial contributions to his or her support; see
Sec. 404.366(a) for a definition of contributions for support;
(iii) The child is living apart because of a physical disability
that the child has or that you have; or
(3) The child is 16 years old or older, is mentally disabled, and
you supervise his or her activities, make important decisions about his
or her needs, and help in his or her upbringing and development.
(b) Not in your care. A child living apart from you is not in your
care if--
(1) The child is in active military service;
(2) The child is living with his or her other parent;
(3) The child is removed from your custody and control by a court
order;
(4) The child is 16 years old or older, is mentally competent, and
either has been living apart from you for 6 months or more or begins
living apart from you and is expected to be away for more than 6 months;
(5) You gave your right to have custody and control of the child to
someone else; or
(6) You are mentally disabled.
[44 FR 34481, June 15, 1979, as amended at 48 FR 21927, May 16, 1983]
Child's Benefits
Sec. 404.350 Who is entitled to child's benefits.
(a) General. You are entitled to child's benefits on the earnings
record of an insured person who is entitled to old-age or disability
benefits or who has died if--
(1) You are the insured person's child, based upon a relationship
described in Secs. 404.355 through 404.359;
(2) You are dependent on the insured, as defined in Secs. 404.360
through 404.365;
(3) You apply;
(4) You are unmarried; and
(5) You are under age 18; you are 18 years old or older and have a
disability that began before you became 22 years old; or you are 18
years or older and qualify for benefits as a full-time student as
described in Sec. 404.367.
(b) Entitlement preclusion for certain disabled children. If you are
a disabled child as referred to in paragraph (a)(5) of this section, and
your disability was based on a finding that drug addiction or alcoholism
was a contributing factor material to the determination of disability
(as described in Sec. 404.1535) and your benefits ended after your
receipt of 36 months of benefits, you will not be entitled to benefits
based on disability for any month following such 36 months regardless of
the number of entitlement periods you have had if, in such following
months, drug addiction or alcoholism is a contributing factor material
to the later determination of disability (as described in
Sec. 404.1535).
[44 FR 34481, June 15, 1979, as amended at 48 FR 21927, May 16, 1983; 60
FR 8146, Feb. 10, 1995; 61 FR 38363, July 24, 1996]
Sec. 404.351 Who may be reentitled to child's benefits.
If your entitlement to child's benefits has ended, you may be
reentitled on the same earnings record if you have not married and if
you apply for
[[Page 125]]
reentitlement. Your reentitlement may begin with--
(a) The first month in which you qualify as a full-time student.
(See Sec. 404.367.)
(b) The first month in which you are disabled, if your disability
began before you became 22 years old; or
(c) The first month you are under a disability that began before the
end of the 84th month following the month in which your benefits had
ended because an earlier disability had ended.
[44 FR 34481, June 15, 1979, as amended at 48 FR 21927, May 16, 1983; 61
FR 38363, July 24, 1996]
Sec. 404.352 When does my entitlement to child's benefits begin and end?
(a) We will find your entitlement to child's benefits begins at the
following times:
(1) If the insured is deceased, with the first month covered by your
application in which you meet all other requirements for entitlement.
(2) If the insured is living and your first month of entitlement is
September 1981 or later, with the first month covered by your
application throughout which you meet all other requirements for
entitlement.
(3) If the insured is living and your first month of entitlement is
before September 1981, with the first month covered by your application
in which you meet all other requirements for entitlement.
(b) We will find your entitlement to child's benefits ends at the
earliest of the following times:
(1) With the month before the month in which you become 18 years
old, if you are not disabled or a full-time student.
(2) With the second month following the month in which your
disability ends, if you become 18 years old and you are disabled. If
your disability ends on or after December 1, 1980, your entitlement to
child's benefits continues, subject to the provisions of paragraphs (c)
and (d) of this section, until the month before your termination month
(Sec. 404.325).
(3) With the last month you are a full-time student or, if earlier,
with the month before the month you become age 19, if you become 18
years old and you qualify as a full-time student who is not disabled. If
you become age 19 in a month in which you have not completed the
requirements for, or received, a diploma or equivalent certificate from
an elementary or secondary school and you are required to enroll for
each quarter or semester, we will find your entitlement ended with the
month in which the quarter or semester in which you are enrolled ends.
If the school you are attending does not have a quarter or semester
system which requires reenrollment, we will find your entitlement to
benefits ended with the month you complete the course or, if earlier,
the first day of the third month following the month in which you become
19 years old.
(4) With the month before the month you marry. We will not find your
benefits ended, however, if you are age 18 or older, disabled, and you
marry a person entitled to child's benefits based on disability or
person entitled to old-age, divorced wife's, divorced husband's,
widow's, widower's, mother's, father's, parent's, or disability
benefits.
(5) With the month before the month the insured's entitlement to
old-age or disability benefits ends for a reason other than death or the
attainment of full retirement age (as defined in Sec. 404.409).
Exception: We will continue your benefits if the insured person was
entitled to disability benefits based on a finding that drug addiction
or alcoholism was a contributing factor material to the determination of
his or her disability (as described in Sec. 404.1535), the insured
person's benefits ended after 36 months of payment (see Sec. 404.316(e))
or 12 consecutive months of suspension for noncompliance with treatment
(see Sec. 404.316(f)), and the insured person remains disabled.
(6) With the month before the month you die.
(c) If you are entitled to benefits as a disabled child age 18 or
over and your disability is based on a finding that drug addiction or
alcoholism was a contributing factor material to the determination of
disability (as described in Sec. 404.1535), we will find your
entitlement to benefits ended under the following conditions:
(1) If your benefits have been suspended for a period of 12
consecutive
[[Page 126]]
months for failure to comply with treatment, with the month following
the 12 months unless you are otherwise disabled without regard to drug
addiction or alcoholism (see Sec. 404.470(c)).
(2) If you have received 36 months of benefits on that basis when
treatment is available, regardless of the number of entitlement periods
you may have had, with the month following such 36-month payment period
unless you are otherwise disabled without regard to drug addiction or
alcoholism.
(d)(1) Generally, we will continue your benefits after your
impairment is no longer disabling if you meet all the following
conditions:
(i) Your disability did not end before December 1980, the effective
date of this provision of the law.
(ii) You are participating in an appropriate program of vocational
rehabilitation as described in Sec. 404.316(c)(1)(ii).
(iii) You began the program before your disability ended.
(iv) We have determined that your completion of the program, or your
continuation in the program for a specified period of time, will
significantly increase the likelihood that you will not have to return
to the disability benefit rolls.
(2) Generally, we will end your entitlement to benefits with the
month you meet one of the following conditions:
(i) You complete the program.
(ii) You stop participating in the program for any reason.
(iii) We determine that your continuing participation in the program
will no longer significantly increase the likelihood that you will be
permanently removed from the disability benefit rolls.
(iv) Exception: In no case will we stop your benefits with a month
earlier than the second month after the month your disability ends.
(e) If, after November 1980, you have a disabling impairment
(Sec. 404.1511), we will pay you benefits for all months in which you do
not do substantial gainful activity during the reentitlement period
(Sec. 404.1592a) following the end of your trial work period
(Sec. 404.1592). If you are unable to do substantial gainful activity in
the first month following the reentitlement period, we will pay you
benefits until you are able to do substantial gainful activity.
(Earnings during your trial work period do not affect the payment of
your benefits during that period.) We will also pay you benefits for the
first month after the trial work period in which you do substantial
gainful activity and the two succeeding months, whether or not you do
substantial gainful activity during those succeeding months. After those
three months, we cannot pay you benefits for any months in which you do
substantial gainful activity.
[68 FR 4707, Jan. 30, 2003]
Sec. 404.353 Child's benefit amounts.
(a) General. Your child's monthly benefit is equal to one-half of
the insured person's primary insurance amount if he or she is alive and
three-fourths of the primary insurance amount if he or she has died. The
amount of your monthly benefit may change as explained in Sec. 404.304.
(b) Entitlement to more than one benefit. If you are entitled to a
child's benefit on more than one person's earnings record, you will
ordinarily receive only the benefit payable on the record with the
highest primary insurance amount. If your benefit before any reduction
would be larger on an earnings record with a lower primary insurance
amount and no other person entitled to benefits on any earnings record
would receive a smaller benefit as a result of your receiving benefits
on the record with the lower primary insurance amount, you will receive
benefits on that record. See Sec. 404.407(d) for a further explanation.
If you are entitled to a child's benefit and to other dependent's or
survivor's benefits, you can receive only the highest of the benefits.
[44 FR 34481, June 15, 1979; 44 FR 56691, Oct. 2, 1979, as amended at 48
FR 21928, May 16, 1983; 51 FR 12606, Apr. 14, 1986; 61 FR 38363, July
24, 1996]
Sec. 404.354 Your relationship to the insured.
You may be related to the insured person in one of several ways and
be entitled to benefits as his or her child, i.e., as a natural child,
legally adopted child, stepchild, grandchild,
[[Page 127]]
stepgrandchild, or equitably adopted child. For details on how we
determine your relationship to the insured person, see Secs. 404.355
through 404.359.
[63 FR 57593, Oct. 28, 1998]
Sec. 404.355 Who is the insured's natural child?
(a) Eligibility as a natural child. You may be eligible for benefits
as the insured's natural child if any of the following conditions is
met:
(1) You could inherit the insured's personal property as his or her
natural child under State inheritance laws, as described in paragraph
(b) of this section.
(2) You are the insured's natural child and the insured and your
mother or father went through a ceremony which would have resulted in a
valid marriage between them except for a ``legal impediment'' as
described in Sec. 404.346(a).
(3) You are the insured's natural child and your mother or father
has not married the insured, but the insured has either acknowledged in
writing that you are his or her child, been decreed by a court to be
your father or mother, or been ordered by a court to contribute to your
support because you are his or her child. If the insured is deceased,
the acknowledgment, court decree, or court order must have been made or
issued before his or her death. To determine whether the conditions of
entitlement are met throughout the first month as stated in
Sec. 404.352(a), the written acknowledgment, court decree, or court
order will be considered to have occurred on the first day of the month
in which it actually occurred.
(4) Your mother or father has not married the insured but you have
evidence other than the evidence described in paragraph (a)(3) of this
section to show that the insured is your natural father or mother.
Additionally, you must have evidence to show that the insured was either
living with you or contributing to your support at the time you applied
for benefits. If the insured is not alive at the time of your
application, you must have evidence to show that the insured was either
living with you or contributing to your support when he or she died. See
Sec. 404.366 for an explanation of the terms ``living with'' and
``contributions for support.''
(b) Use of State Laws--(1) General. To decide whether you have
inheritance rights as the natural child of the insured, we use the law
on inheritance rights that the State courts would use to decide whether
you could inherit a child's share of the insured's personal property if
the insured were to die without leaving a will. If the insured is
living, we look to the laws of the State where the insured has his or
her permanent home when you apply for benefits. If the insured is
deceased, we look to the laws of the State where the insured had his or
her permanent home when he or she died. If the insured's permanent home
is not or was not in one of the 50 States, the Commonwealth of Puerto
Rico, the Virgin Islands, Guam, American Samoa, or the Northern Mariana
Islands, we will look to the laws of the District of Columbia. For a
definition of permanent home, see Sec. 404.303. For a further discussion
of the State laws we use to determine whether you qualify as the
insured's natural child, see paragraphs (b)(3) and (b)(4) of this
section. If these laws would permit you to inherit the insured's
personal property as his or her child, we will consider you the child of
the insured.
(2) Standards. We will not apply any State inheritance law
requirement that an action to establish paternity must be taken within a
specified period of time measured from the worker's death or the child's
birth, or that an action to establish paternity must have been started
or completed before the worker's death. If applicable State inheritance
law requires a court determination of paternity, we will not require
that you obtain such a determination but will decide your paternity by
using the standard of proof that the State court would use as the basis
for a determination of paternity.
(3) Insured is living. If the insured is living, we apply the law of
the State where the insured has his or her permanent home when you file
your application for benefits. We apply the version of State law in
effect when we make our final decision on your application for benefits.
If you do not qualify as a child of the insured under that version of
State law, we look at all versions of
[[Page 128]]
State law that were in effect from the first month for which you could
be entitled to benefits up until the time of our final decision and
apply the version of State law that is most beneficial to you.
(4) Insured is deceased. If the insured is deceased, we apply the
law of the State where the insured had his or her permanent home when he
or she died. We apply the version of State law in effect when we make
our final decision on your application for benefits. If you do not
qualify as a child of the insured under that version of State law, we
will apply the version of State law that was in effect at the time the
insured died, or any version of State law in effect from the first month
for which you could be entitled to benefits up until our final decision
on your application. We will apply whichever version is most beneficial
to you. We use the following rules to determine the law in effect as of
the date of death:
(i) If a State inheritance law enacted after the insured's death
indicates that the law would be retroactive to the time of death, we
will apply that law; or
(ii) If the inheritance law in effect at the time of the insured's
death was later declared unconstitutional, we will apply the State law
which superseded the unconstitutional law.
[63 FR 57593, Oct. 28, 1998]
Sec. 404.356 Who is the insured's legally adopted child.
You may be eligible for benefits as the insured's child if you were
legally adopted by the insured. If you were legally adopted after the
insured's death by his or her surviving spouse you may also be
considered the insured's legally adopted child. We apply the adoption
laws of the State or foreign country where the adoption took place, not
the State inheritance laws described in Sec. 404.355, to determine
whether you are the insured's legally adopted child.
[44 FR 34481, June 15, 1979, as amended at 63 FR 57594, Oct. 28, 1998]
Sec. 404.357 Who is the insured's stepchild.
You may be eligible for benefits as the insured's stepchild if,
after your birth, your natural or adopting parent married the insured.
You also may be eligible as a stepchild if you were conceived prior to
the marriage of your natural parent to the insured but were born after
the marriage and the insured is not your natural parent. The marriage
between the insured and your parent must be a valid marriage under State
law or a marriage which would be valid except for a legal impediment
described in Sec. 404.346(a). If the insured is alive when you apply,
you must have been his or her stepchild for at least 1 year immediately
preceding the day you apply. For purposes of determining whether the
conditions of entitlement are met throughout the first month as stated
in Sec. 404.352(a)(2)(i), you will be considered to meet the one year
duration requirement throughout the month in which the anniversary of
the marriage occurs. If the insured is not alive when you apply, you
must have been his or her stepchild for at least 9 months immediately
preceding the day the insured died. This 9-month requirement will not
have to be met if the marriage between the insured and your parent
lasted less than 9 months under the conditions described in
Sec. 404.335(a)(2).
[48 FR 21928, May 16, 1983, as amended at 64 FR 14608, Mar. 26, 1999]
Sec. 404.358 Who is the insured's grandchild or stepgrandchild.
(a) Grandchild and stepgrandchild defined. You may be eligible for
benefits as the insured's grandchild or stepgrandchild if you are the
natural child, adopted child, or stepchild of a person who is the
insured's child as defined in Secs. 404.355 through 404.357, or
Sec. 404.359. Additionally, for you to be eligible as a grandchild or
stepgrandchild, your natural or adoptive parents must have been either
deceased or under a disability, as defined in Sec. 404.1501(a), at the
time your grandparent or stepgrandparent became entitled to old-age or
disability benefits or died; or if your grandparent or stepgrandparent
had a period of disability that continued until he or she became
entitled to benefits or died, at the time the period of disability
began. If your parent is deceased, for purposes of determining whether
the conditions of entitlement
[[Page 129]]
are met throughout the first month as stated in Sec. 404.352(a)(2)(i),
your parent will be considered to be deceased as of the first day of the
month of death.
(b) Legally adopted grandchild or stepgrandchild. If you are the
insured's grandchild or stepgrandchild and you are legally adopted by
the insured or by the insured's surviving spouse after his or her death,
you are considered an adopted child and the dependency requirements of
Sec. 404.362 must be met.
[44 FR 34481, June 15, 1979, as amended at 48 FR 21928, May 16, 1983]
Sec. 404.359 Who is the insured's equitably adopted child.
You may be eligible for benefits as an equitably adopted child if
the insured had agreed to adopt you as his or her child but the adoption
did not occur. The agreement to adopt you must be one that would be
recognized under State law so that you would be able to inherit a
child's share of the insured's personal property if he or she were to
die without leaving a will. The agreement must be in whatever form, and
you must meet whatever requirements for performance under the agreement,
that State law directs. If you apply for child's benefits after the
insured's death, the law of the State where the insured had his or her
permanent home at the time of his or her death will be followed. If you
apply for child's benefits during the insured's life, the law of the
State where the insured has his or her permanent home at the time or
your application will be followed.
Sec. 404.360 When a child is dependent upon the insured person.
One of the requirements for entitlement to child's benefits is that
you be dependent upon the insured. The evidence you need to prove your
dependency is determined by how you are related to the insured. To prove
your dependency you may be asked to show that at a specific time you
lived with the insured, that you received contributions for your support
from the insured, or that the insured provided at least one-half of your
support. These dependency requirements, and the time at which they must
be met, are explained in Secs. 404.361 through 404.365. The terms living
with, contributions for support, and one-half support are defined in
Sec. 404.366.
Sec. 404.361 When a natural child is dependent.
(a) Dependency of natural child. If you are the insured's natural
child, as defined in Sec. 404.355, you are considered dependent upon him
or her, except as stated in paragraph (b) of this section.
(b) Dependency of natural child legally adopted by someone other
than the insured. (1) Except as indicated in paragraph (b)(2) of this
section, if you are legally adopted by someone other than the insured
(your natural parent) during the insured's lifetime, you are considered
dependent upon the insured only if the insured was either living with
you or contributing to your support at one of the following times:
(i) When you applied;
(ii) When the insured died; or
(iii) If the insured had a period of disability that lasted until he
or she became entitled to disability or old-age benefits or died, at the
beginning of the period of disability or at the time he or she became
entitled to disability or old-age benefits.
(2) You are considered dependent upon the insured (your natural
parent) if:
(i) You were adopted by someone other than the insured after you
applied for child's benefits; or
(ii) The insured had a period of disability that lasted until he or
she became entitled to old-age or disability benefits or died, and you
are adopted by someone other than the insured after the beginning of
that period of disability.
[64 FR 14608, Mar. 26, 1999]
Sec. 404.362 When a legally adopted child is dependent.
(a) General. If you were legally adopted by the insured before he or
she became entitled to old-age or disability benefits, you are
considered dependent upon him or her. If you were legally adopted by the
insured after he or she became entitled to old-age or disability
benefits and you apply for child's benefits during the life of the
insured, you must meet the dependency requirements stated in paragraph
(b) of this section. If you were legally adopted by
[[Page 130]]
the insured after he or she became entitled to old-age or disability
benefits and you apply for child's benefits after the death of the
insured, you are considered dependent upon him or her. If you were
adopted after the insured's death by his or her surviving spouse, you
may be considered dependent upon the insured only under the conditions
described in paragraph (c) of this section.
(b) Adoption by the insured after he or she became entitled to
benefits. (1) General. If you are legally adopted by the insured after
he or she became entitled to benefits and you are not the insured's
natural child or stepchild, you are considered dependent on the insured
during his or her lifetime only if--
(i) You had not attained age 18 when adoption proceedings were
started, and your adoption was issued by a court of competent
jurisdiction within the United States; or
(ii) You had attained age 18 before adoption proceedings were
started; your adoption was issued by a court of competent jurisdiction
within the United States; and you were living with or receiving at least
one-half of your support from the insured for the year immediately
preceding the month in which your adoption was issued.
(2) Natural child and stepchild. If you were legally adopted by the
insured after he or she became entitled to benefits and you are the
insured's natural child or stepchild, you are considered dependent upon
the insured.
(c) Adoption by the insured's surviving spouse--(1) General. If you
are legally adopted by the insured's surviving spouse after the
insured's death, you are considered dependent upon the insured as of the
date of his or her death if--
(i) You were either living with or receiving at least one-half of
your support from the insured at the time of his or her death; and,
(ii) The insured had started adoption proceedings before he or she
died; or if the insured had not started the adoption proceedings before
he or she died, his or her surviving spouse began and completed the
adoption within 2 years of the insured's death.
(2) Grandchild or stepgrandchild adopted by the insured's surviving
spouse. If you are the grandchild or stepgrandchild of the insured and
any time after the death of the insured you are legally adopted by the
insured's surviving spouse, you are considered the dependent child of
the insured as of the date of his or her death if--
(i) Your adoption took place in the United States;
(ii) At the time of the insured's death, your natural, adopting or
stepparent was not living in the insured's household and making regular
contributions toward your support; and
(iii) You meet the dependency requirements stated in Sec. 404.364.
[44 FR 34481, June 15, 1979; 44 FR 56691, Oct. 2, 1979, as amended at 56
FR 24000, May 28, 1991; 57 FR 3938, Feb. 3, 1992]
Sec. 404.363 When a stepchild is dependent.
If you are the insured's stepchild, as defined in Sec. 404.357, you
are considered dependent upon him or her if you were either living with
or receiving at least one-half of your support from him or her at one of
these times--
(a) When you applied;
(b) When the insured died; or
(c) If the insured had a period of disability that lasted until his
or her death or entitlement to disability or old-age benefits, at the
beginning of the period of disability or at the time the insured became
entitled to benefits.
Sec. 404.364 When a grandchild or stepgrandchild is dependent.
If you are the insured's grandchild or stepgrandchild, as defined in
Sec. 404.358(a), you are considered dependent upon the insured if--
(a) You began living with the insured before you became 18 years
old; and
(b) You were living with the insured in the United States and
receiving at least one-half of your support from him for the year before
he or she became entitled to old-age or disability benefits or died; or
if the insured had a period of disability that lasted until he or she
became entitled to benefits or died, for the year immediately before the
month in which the period of disability began. If you were born during
the 1-
[[Page 131]]
year period, the insured must have lived with you and provided at least
one-half of your support for substantially all of the period that begins
on the date of your birth. The term substantially all is defined in
Sec. 404.362(b)(1)(iii).
Sec. 404.365 When an equitably adopted child is dependent.
If you are the insured's equitably adopted child, as defined in
Sec. 404.359, you are considered dependent upon him or her if you were
either living with or receiving contributions for your support from the
insured at the time of his or her death. If your equitable adoption is
found to have occurred after the insured became entitled to old-age or
disability benefits, your dependency cannot be established during the
insured's life. If your equitable adoption is found to have occurred
before the insured became entitled to old-age or disability benefits,
you are considered dependent upon him or her if you were either living
with or receiving contributions for your support from the insured at one
of these times--
(a) When you applied; or
(b) If the insured had a period of disability that lasted until he
or she became entitled to old-age or disability benefits, at the
beginning of the period of disability or at the time the insured became
entitled to benefits.
Sec. 404.366 ``Contributions for support,'' ``one-half support,'' and ``living with'' the insured defined--determining first month of entitlement.
To be eligible for child's or parent's benefits, and in certain
Government pension offset cases, you must be dependent upon the insured
person at a particular time or be assumed dependent upon him or her.
What it means to be a dependent child is explained in Secs. 404.360
through 404.365; what it means to be a dependent parent is explained in
Sec. 404.370(f); and the Government pension offset is explained in
Sec. 404.408a. Your dependency upon the insured person may be based upon
whether at a specified time you were receiving contributions for your
support or one-half of your support from the insured person, or whether
you were living with him or her. These terms are defined in paragraphs
(a) through (c) of this section.
(a) Contributions for support. The insured makes a contribution for
your support if the following conditions are met:
(1) The insured gives some of his or her own cash or goods to help
support you. Support includes food, shelter, routine medical care, and
other ordinary and customary items needed for your maintenance. The
value of any goods the insured contributes is the same as the cost of
the goods when he or she gave them for your support. If the insured
provides services for you that would otherwise have to be paid for, the
cash value of his or her services may be considered a contribution for
your support. An example of this would be work the insured does to
repair your home. The insured person is making a contribution for your
support if you receive an allotment, allowance, or benefit based upon
his or her military pay, veterans' pension or compensation, or social
security earnings.
(2) Contributions must be made regularly and must be large enough to
meet an important part of your ordinary living costs. Ordinary living
costs are the costs for your food, shelter, routine medical care, and
similar necessities. If the insured person only provides gifts or
donations once in a while for special purposes, they will not be
considered contributions for your support. Although the insured's
contributions must be made on a regular basis, temporary interruptions
caused by circumstances beyond the insured person's control, such as
illness or unemployment, will be disregarded unless during this
interrruption someone else takes over responsibility for supporting you
on a permanent basis.
(b) One-half support. The insured person provides one-half of your
support if he or she makes regular contributions for your ordinary
living costs; the amount of these contributions equals or exceeds one-
half of your ordinary living costs; and any income (from sources other
than the insured person) you have available for support purposes is one-
half or less of your ordinary living costs. We will consider any income
[[Page 132]]
which is available to you for your support whether or not that income is
actually used for your ordinary living costs. Ordinary living costs are
the costs for your food, shelter, routine medical care, and similar
necessities. A contribution may be in cash, goods, or services. The
insured is not providing at least one-half of your support unless he or
she has done so for a reasonable period of time. Ordinarily we consider
a reasonable period to be the 12-month period immediately preceding the
time when the one-half support requirement must be met under the rules
in Secs. 404.362(c)(1) and 404.363 (for child's benefits), in
Sec. 404.370(f) (for parent's benefits) and in Sec. 404.408a(c) (for
benefits where the Government pension offset may be applied). A shorter
period will be considered reasonable under the following circumstances:
(1) At some point within the 12-month period, the insured either
begins or stops providing at least one-half of your support on a
permanent basis and this is a change in the way you had been supported
up to then. In these circumstances, the time from the change up to the
end of the 12-month period will be considered a reasonable period,
unless paragraph (b)(2) of this section applies. The change in your
source of support must be permanent and not temporary. Changes caused by
seasonal employment or customary visits to the insured's home are
considered temporary.
(2) The insured provided one-half or more of your support for at
least 3 months of the 12-month period, but was forced to stop or reduce
contributions because of circumstances beyond his or her control, such
as illness or unemployment, and no one else took over the responsibility
for providing at least one-half of your support on a permanent basis.
Any support you received from a public assistance program is not
considered as a taking over of responsibility for your support by
someone else. Under these circumstances, a reasonable period is that
part of the 12-month period before the insured was forced to reduce or
stop providing at least one-half of your support.
(c) ``Living with'' the insured. You are living with the insured if
you ordinarily live in the same home with the insured and he or she is
exercising, or has the right to exercise, parental control and authority
over your activities. You are living with the insured during temporary
separations if you and the insured expect to live together in the same
place after the separation. Temporary separations may include the
insured's absence because of active military service or imprisonment if
he or she still exercises parental control and authority. However, you
are not considered to be living with the insured if you are in active
military service or in prison. If living with is used to establish
dependency for your eligibility to child's benefits and the date your
application is filed is used for establishing the point for determining
dependency, you must have been living with the insured throughout the
month your application is filed in order to be entitled to benefits for
that month.
(d) Determining first month of entitlement. In evaluating whether
dependency is established under paragraph (a), (b), or (c) of this
section, for purposes of determining whether the conditions of
entitlement are met throughout the first month as stated in
Sec. 404.352(a)(2)(i), we will not use the temporary separation or
temporary interruption rules.
[44 FR 34481, June 15, 1979, as amended at 45 FR 65540, Oct. 3, 1980; 48
FR 21928, May 16, 1983; 52 FR 26955, July 17, 1987; 64 FR 14608, Mar.
26, 1999]
Sec. 404.367 When you are a ``full-time elementary or secondary school student''.
You may be eligible for child's benefits if you are a full-time
elementary or secondary school student. For the purposes of determining
whether the conditions of entitlement are met throughout the first month
as stated in Sec. 404.352(a)(2)(i), if you are entitled as a student on
the basis of attendance at an elementary or secondary school, you will
be considered to be in full-time attendance for a month during any part
of which you are in full-time attendance. You are a full-time elementary
or secondary school student if you meet all the following conditions:
(a) You attend a school which provides elementary or secondary
education as determined under the law of
[[Page 133]]
the State or other jurisdiction in which it is located. Participation in
the following programs also meets the requirements of this paragraph:
(1) You are instructed in elementary or secondary education at home
in accordance with a home school law of the State or other jurisdiction
in which you reside; or
(2) You are in an independent study elementary or secondary
education program in accordance with the law of the State or other
jurisdiction in which you reside which is administered by the local
school or school district/jurisdiction.
(b) You are in full-time attendance in a day or evening
noncorrespondence course of at least 13 weeks duration and you are
carrying a subject load which is considered full-time for day students
under the institution's standards and practices. If you are in a home
schooling program as described in paragraph (a)(1) of this section, you
must be carrying a subject load which is considered full-time for day
students under standards and practices set by the State or other
jurisdiction in which you reside;
(c) To be considered in full-time attendance, your scheduled
attendance must be at the rate of at least 20 hours per week unless one
of the exceptions in paragraphs (c) (1) and (2) of this section applies.
If you are in an independent study program as described in paragraph
(a)(2) of this section, your number of hours spent in school attendance
are determined by combining the number of hours of attendance at a
school facility with the agreed upon number of hours spent in
independent study. You may still be considered in full-time attendance
if your scheduled rate of attendance is below 20 hours per week if we
find that:
(1) The school attended does not schedule at least 20 hours per week
and going to that particular school is your only reasonable alternative;
or
(2) Your medical condition prevents you from having scheduled
attendance of at least 20 hours per week. To prove that your medical
condition prevents you from scheduling 20 hours per week, we may request
that you provide appropriate medical evidence or a statement from the
school.
(d) You are not being paid while attending the school by an employer
who has requested or required that you attend the school;
(e) You are in grade 12 or below; and
(f) You are not subject to the provisions in Sec. 404.468 for
nonpayment of benefits to certain prisoners and certain other inmates of
publicly funded institutions.
[48 FR 21928, May 16, 1983, as amended at 48 FR 55452, Dec. 13, 1983; 56
FR 35999, July 30, 1991; 61 FR 38363, July 24, 1996]
Sec. 404.368 When you are considered a full-time student during a period of nonattendance.
If you are a full-time student, your eligibility may continue during
a period of nonattendance (including part-time attendance) if all the
following conditions are met:
(a) The period of nonattendance is 4 consecutive months or less;
(b) You show us that you intend to resume your studies as a full-
time student at the end of the period or at the end of the period you
are a full-time student; and
(c) The period of nonattendance is not due to your expulsion or
suspension from the school.
[48 FR 21929, May 16, 1983]
Parent's Benefits
Sec. 404.370 Who is entitled to parent's benefits.
You may be entitled to parent's benefits on the earnings record of
someone who has died and was fully insured. You are entitled to these
benefits if all the following conditions are met:
(a) You are related to the insured person as his or her parent in
one of the ways described in Sec. 404.374.
(b) You are at least 62 years old.
(c) You have not married since the insured person died.
(d) You apply.
(e) You are not entitled to an old-age benefit equal to or larger
than the parent's benefit amount.
(f) You were receiving at least one-half of your support from the
insured at the time he or she died, or at the beginning of any period of
disability he or she had that continued up to death. See Sec. 404.366(b)
for a definition of one-
[[Page 134]]
half support. If you were receiving one-half of your support from the
insured at the time of the insured's death, you must give us proof of
this support within 2 years of the insured's death. If you were
receiving one-half of your support from the insured at the time his or
her period of disability began, you must give us proof of this support
within 2 years of the month in which the insured filed his or her
application for the period of disability. You must file the evidence of
support even though you may not be eligible for parent's benefits until
a later time. There are two exceptions to the 2-year filing requirement:
(1) If there is a good cause for failure to provide proof of support
within the 2-year period, we will consider the proof you give us as
though it were provided within the 2-year period. Good cause does not
exist if you were informed of the need to provide the proof within the
2-year period and you neglected to do so or did not intend to do so.
Good cause will be found to exist if you did not provide the proof
within the time limit due to--
(i) Circumstances beyond your control, such as extended illness,
mental or physical incapacity, or a language barrier;
(ii) Incorrect or incomplete information we furnished you;
(iii) Your efforts to get proof of the support without realizing
that you could submit the proof after you gave us some other evidence of
that support; or
(iv) Unusual or unavoidable circumstances that show you could not
reasonably be expected to know of the 2-year time limit.
(2) The Soldiers' and Sailors' Civil Relief Act of 1940 provides for
extending the filing time.
Sec. 404.371 When parent's benefits begin and end.
(a) You are entitled to parent's benefits beginning with the first
month covered by your application in which you meet all the other
requirements for entitlement.
(b) Your entitlement to benefits ends with the month before the
month in which one of the following events first occurs:
(1) You become entitled to an old-age benefit equal to or larger
than the parent's benefit.
(2) You marry, unless your marriage is to someone entitled to
wife's, husband's, widow's, widower's, mother's, father's, parent's or
disabled child's benefits. If you marry a person entitled to these
benefits, the marriage does not affect your benefits.
(3) You die.
[44 FR 34481, June 15, 1979, as amended at 49 FR 24116, June 12, 1984]
Sec. 404.373 Parent's benefit amounts.
Your parent's monthly benefit before any reduction that may be made
as explained in Sec. 404.304, is figured in one of the following ways:
(a) One parent entitled. Your parent's monthly benefit is equal to
82\1/2\ percent of the insured person's primary insurance amount if you
are the only parent entitled to benefits on his or her earnings record.
(b) More than one parent entitled. Your parent's monthly benefit is
equal to 75 percent of the insured person's primary insurance amount if
there is another parent entitled to benefits on his or her earnings
record.
Sec. 404.374 Parent's relationship to the insured.
You may be eligible for benefits as the insured person's parent if--
(a) You are the mother or father of the insured and would be
considered his or her parent under the laws of the State where the
insured had a permanent home when he or she died;
(b) You are the adoptive parent of the insured and legally adopted
him or her before the insured person became 16 years old; or
(c) You are the stepparent of the insured and you married the
insured's parent or adoptive parent before the insured became 16 years
old. The marriage must be valid under the laws of the State where the
insured had his or her permanent home when he or she died. See
Sec. 404.303 for a definition of permanent home.
[[Page 135]]
Special Payments at Age 72
Sec. 404.380 General.
Some older persons had little or no chance to become fully insured
for regular social security benefits during their working years. For
those who became 72 years old several years ago but are not fully
insured, a special payment may be payable as described in the following
sections.
Sec. 404.381 Who is entitled to special age 72 payments.
You are entitled to a special age 72 payment if--
(a) You have attained the age of 72; and
(1) You attained such age before 1968; or
(2) You attained such age after 1967--or, for applications filed
after November 5, 1990, you attained age 72 after 1967 and before 1972--
and have at least 3 quarters of coverage for each calendar year elapsing
after 1966 and before the year in which you attained age 72 (see subpart
B for a description of quarters of coverage);
(b) You reside in one of the 50 States, the District of Columbia, or
the Northern Mariana Islands;
(c) You apply; and
(d) You are a U.S. citizen or a citizen of the Northern Mariana
Islands; or you are an alien who was legally admitted for permanent
residence in the United States and who has resided here continuously for
5 years. Residence in the United States includes residence in the
Northern Mariana Islands, Guam, American Samoa, Puerto Rico, and the
Virgin Islands.
[44 FR 34481, June 15, 1979, as amended at 57 FR 21598, May 21, 1992]
Sec. 404.382 When special age 72 payments begin and end.
(a) Your entitlement to the special age 72 payment begins with the
first month covered by your application in which you meet all the other
requirements for entitlement.
(b) Your entitlement to this payment ends with the month before the
month of your death.
Sec. 404.383 Special age 72 payment amounts.
(a) Payment from May 1983 on. If you are entitled to special age 72
payments from May 1983 on, you will receive a monthly payment of
$125.60. If your spouse is also entitled to special age 72 payments, he
or she will also receive $125.60. This amount, first payable for June
1982, will be increased when cost-of-living adjustments of Social
Security benefits occur. This special payment may be reduced, suspended
or not paid at all as explained in Sec. 404.384.
(b) Payment prior to May 1983. If a husband or a single individual
is entitled to special age 72 payments for months prior to May 1983, the
amount payable was $125.60 for the months since June 1982. The wife
received an amount approximiately one-half the husband's amount (i.e.,
$63.00 for months in the period June 1982-April 1983).
[49 FR 24116, June 12, 1984]
Sec. 404.384 Reductions, suspensions, and nonpayments of special age 72 payments.
(a) General. Special age 72 payments may not be paid for any month
you receive public assistance payments. The payment may be reduced if
you or your spouse are eligible for a government pension. In some
instances, the special payment may not be paid while you are outside the
United States. The rules on when special payments may be suspended,
reduced, or not paid are provided in paragraphs (b) through (e) of this
section.
(b) Suspension of special age 72 payments when you receive certain
assistance payments. You cannot receive the special payment if
supplemental security income or aid to families with dependent children
(AFDC) payments are payable to you, or if your needs are considered in
setting the amounts of these assistance payments made to someone else.
However, if these assistance payments are stopped, you may receive the
special payment beginning with the last month for which the assistance
payments were paid.
(c) Reduction of special age 72 payments when you or your spouse are
eligible for a government pension. Special payments are reduced for any
regular
[[Page 136]]
government pension (or lump-sum payment given instead of a pension) that
you or your spouse are eligible for at retirement. A government pension
is any annuity, pension, or retirement pay from the Federal Government,
a State government or political subdivision, or any organization wholly
owned by the Federal or State government. Also included as a government
pension is any social security benefit. The term government pension does
not include workmen's compensation payments or Veterans Administration
payments for a service-connected disability or death.
(d) Amount of reduction because of a government pension. If you are
eligible for a government pension, the amount of the pension will be
subtracted from your special age 72 payment. If your spouse is eligible
for a government pension but is not entitled to the special payment,
your special payment is reduced (after any reduction due to your own
government pension) by the difference between the pension amount and the
full special payment amount. If both you and your spouse are entitled to
the special payment, each spouse's payment is first reduced by the
amount of his or her own government pension (if any). Then, the wife's
special payment is reduced by the amount that the husband's government
pension exceeds the full special payment. The husband's special payment
is also reduced by the amount that the wife's government pension exceeds
the full special payment.
(e) Nonpayment of special age 72 payments when you are not residing
in the United States. No special payment is due you for any month you
are not a resident of one of the 50 States, the District of Columbia, or
the Northern Mariana Islands. Also, payment to you may not be permitted
under the rules in Sec. 404.463 if you are an alien living outside the
United States.
[44 FR 34481, June 15, 1979, as amended at 49 FR 24116, June 12, 1984]
Lump-Sum Death Payment
Sec. 404.390 General.
If a person is fully or currently insured when he or she dies, a
lump-sum death payment of $255 may be paid to the widow or widower of
the deceased if he or she was living in the same household with the
deceased at the time of his or her death. If the insured is not survived
by a widow(er) who meets this requirement, all or part of the $255
payment may be made to someone else as described in Sec. 404.392.
[44 FR 34481, June 15, 1979, as amended at 48 FR 21929, May 16, 1983; 61
FR 41330, Aug. 8, 1996]
Sec. 404.391 Who is entitled to the lump-sum death payment as a widow or widower who was living in the same household.
You are entitled to the lump-sum death payment as a widow or widower
who was living in the same household if--
(a) You are the widow or widower of the deceased insured individual
based upon a relationship described in Sec. 404.345 or Sec. 404.346;
(b) You apply for this payment within two years after the date of
the insured's death. You need not apply again if, in the month prior to
the death of the insured, you were entitled to wife's or husband's
benefits on his or her earnings record; and
(c) You were living in the same household with the insured at the
time of his or her death. The term living in the same household is
defined in Sec. 404.347.
[44 FR 34481, June 15, 1979, as amended at 48 FR 21929, May 16, 1983]
Sec. 404.392 Who is entitled to the lump-sum death payment when there is no widow(er) who was living in the same household.
(a) General. If the insured individual is not survived by a
widow(er) who meets the requirements of Sec. 404.391, the lump-sum death
payment shall be paid as follows:
(1) To a person who is entitled (or would have been entitled had a
timely application been filed) to widow's or widower's benefits (as
described in Sec. 404.335) or mother's or father's benefits (as
described in Sec. 404.339) on the work record of the deceased worker for
the month of that worker's death; or
(2) If no person described in (1) survives, in equal shares to each
person who is entitled (or would have been entitled had a timely
application been
[[Page 137]]
filed) to child's benefits (as described in Sec. 404.350) on the work
record of the deceased worker for the month of that worker's death.
(b) Application requirement. A person who meets the requirements of
paragraph (a)(1) of this section need not apply to receive the lump-sum
death payment if, for the month prior to the death of the insured, that
person was entitled to wife's or husband's benefits on the insured's
earnings record. Otherwise, an application must be filed within 2 years
of the insured's death.
[48 FR 21929, May 16, 1983; 61 FR 41330, Aug. 8, 1996]
Subpart E--Deductions; Reductions; and Nonpayments of Benefits
Authority: Secs. 202, 203, 204(a) and (e), 205(a) and (c), 216(l),
222(b), 223(e), 224, 225, 702(a)(5) and 1129A of the Social Security Act
(42 U.S.C. 402, 403, 404(a) and (e), 405(a) and (c), 416(l), 422(b),
423(e), 424a, 425, 902(a)(5) and 1320a-8a).
Source: 32 FR 19159, Dec. 20, 1967, unless otherwise noted.
Sec. 404.401 Deduction, reduction, and nonpayment of monthly benefits or lump-sum death payments.
Under certain conditions, the amount of a monthly insurance benefit
(see Secs. 404.380 through 404.384 of this part for provisions
concerning special payments at age 72) or the lump-sum death payment as
calculated under the pertinent provisions of sections 202 and 203 of the
Act (including reduction for age under section 202(q) of a monthly
benefit) must be increased or decreased to determine the amount to be
actually paid to a beneficiary. Increases in the amount of a monthly
benefit or lump-sum death payment are based upon recomputation and
recalculations of the primary insurance amount (see subpart C of this
part). A decrease in the amount of a monthly benefit or lump-sum death
payment is required in the following instances:
(a) Reductions. A reduction of a person's monthly benefit is
required where:
(1) The total amount of the monthly benefits payable on an earnings
record exceeds the maximum that may be paid (see Sec. 404.403);
(2) An application for monthly benefits is effective for a month
during a retroactive period, and the maximum has already been paid for
that month or would be exceeded if such benefit were paid for that month
(see Sec. 404.406);
(3) An individual is entitled to old-age or disability insurance
benefits in addition to any other monthly benefit (see Sec. 404.407);
(4) An individual under age 65 is concurrently entitled to
disability insurance benefits and to certain public disability benefits
(see Sec. 404.408);
(5) An individual is entitled in a month to a widow's or widower's
insurance benefit that is reduced under section 202 (e)(4) or (f)(5) of
the Act and to any other monthly insurance benefit other than an old-age
insurance benefit (see Sec. 404.407(b)); or
(6) An individual is entitled in a month to old-age, disability,
wife's, husband's, widow's, or widower's insurance benefit and reduction
is required under section 202(q) of the Act (see Sec. 404.410).
(b) Deductions. A deduction from a monthly benefit or a lump-sum
death payment may be required because of:
(1) An individual's earnings or work (see Secs. 404.415 and
404.417);
(2) Failure of certain beneficiaries receiving wife's or mother's
insurance benefits to have a child in her care (see Sec. 404.421);
(3) The earnings or work of an old-age insurance beneficiary where a
wife, husband, or child is also entitled to benefits (see Secs. 404.415
and 404.417);
(4) Failure to report within the prescribed period either certain
work outside the United States or not having the care of a child (see
Sec. 404.451);
(5) Failure to report within the prescribed period earnings from
work in employment or self-employment (see Sec. 404.453);
(6) Refusal to accept rehabilitation services in certain cases (see
Sec. 404.422); or
(7) Certain taxes which were neither deducted from the wages of
maritime employees nor paid to the Federal Government (see
Sec. 404.457).
(c) Adjustments. We may adjust your benefits to correct errors in
payments
[[Page 138]]
under title II of the Act. We may also adjust your benefits if you
received more than the correct amount due under title XVI of the Act.
For the title II rules on adjustments to your benefits, see subpart F of
this part. For the rules on adjusting your benefits to recover title XVI
overpayments, see Sec. 416.572 of this chapter.
(d) Nonpayments. Nonpayment of monthly benefits may be required
because:
(1) The individual is an alien who has been outside the United
States for more than 6 months (see Sec. 404.460);
(2) The individual on whose earnings record entitlement is based has
been deported (see Sec. 404.464);
(3) The individual is engaged in substantial gainful activity while
entitled to disability insurance benefits based on ``statutory
blindness'' (see Sec. 404.467); or
(4) The individual has not provided satisfactory proof that he or
she has a Social Security number or has not properly applied for a
Social Security number (see Sec. 404.469).
(e) Recalculation. A reduction by recalculation of a benefit amount
may be prescribed because an individual has been convicted of certain
offenses (see Sec. 404.465) or because the primary insurance amount is
recalculated (see subpart C of this part).
(f) Suspensions. Suspension of monthly benefits may be required
pursuant to section 203(h)(3) of the Act (the Social Security
Administration has information indicating that work deductions may
reasonably be expected for the year), or pursuant to section 225 of the
Act (the Social Security Administration has information indicating a
beneficiary is no longer disabled).
[40 FR 30813, July 23, 1975, as amended at 48 FR 37016, Aug. 16, 1983;
56 FR 41789, Aug. 23, 1991; 65 FR 16813, Mar. 30, 2000; 66 FR 38906,
July 26, 2001]
Sec. 404.401a When we do not pay benefits because of a disability beneficiary's work activity.
If you are receiving benefits because you are disabled or blind as
defined in title II of the Social Security Act, we will stop your
monthly benefits even though you have a disabling impairment
(Sec. 404.1511), if you engage in substantial gainful activity during
the reentitlement period (Sec. 404.1592a) following completion of the
trial work period (Sec. 404.1592). You will, however, be paid benefits
for the first month after the trial work period in which you do
substantial gainful activity and the two succeeding months, whether or
not you do substantial gainful activity in those two months. If anyone
else is receiving monthly benefits based on your earnings record, that
individual will not be paid benefits for any month for which you cannot
be paid benefits during the reentitlement period. Earnings from work
activity during a trial work period will not stop your benefits.
[49 FR 22271, May 29, 1984, as amended at 58 FR 64883, Dec. 10, 1993]
Sec. 404.402 Interrelationship of deductions, reductions, adjustments, and nonpayment of benefits.
(a) Deductions, reductions, adjustment. Deductions because of
earnings or work (see Secs. 404.415 and 404.417); failure to have a
child ``in her care'' (see Sec. 404.421); refusal to accept
rehabilitation services (see Sec. 404.422); as a penalty for failure to
timely report noncovered work outside the United States, failure by a
woman to report that she no longer has a child ``in her care,'' or
failure to timely report earnings (see Secs. 404.451 and 404.453);
because of unpaid maritime taxes (see Sec. 404.457); or nonpayments
because of drug addiction and alcoholism to individuals other than an
insured individual who are entitled to benefits on the insured
individual's earnings record are made:
(1) Before making any reductions because of the maximum (see
Sec. 404.403),
(2) Before applying the benefit rounding provisions (see
Sec. 404.304(f)), and,
(3) Except for deductions imposed as a penalty (see Secs. 404.451
and 404.453), before making any adjustment necessary because an error
has been made in the payment of benefits (see subpart F). However, for
purposes of charging excess earnings for taxable years beginning after
December 1960 or ending after June 1961, see paragraph (b) of this
section and Sec. 404.437 for reductions that apply before such charging.
(b) Reductions, nonpayments. (1) Reduction because of the maximum
(see Sec. 404.403) is made:
[[Page 139]]
(i) Before reduction because of simultaneous entitlement to old-age
or disability insurance benefits and to other benefits (see
Sec. 404.407);
(ii) Before reduction in benefits for age (see Secs. 404.410 through
404.413);
(iii) Before adjustment necessary because an error has been made in
the payment of benefits (see subpart F of this part);
(iv) Before reduction because of entitlement to certain public
disability benefits provided under Federal, State, or local laws or
plans (see Sec. 404.408);
(v) Before nonpayment of an individual's benefits because he is an
alien living outside the United States for 6 months (see Sec. 404.460),
or because of deportation (see Sec. 404.464);
(vi) Before the redetermination of the amount of benefit payable to
an individual who has been convicted of certain offenses (see
Sec. 404.465); and
(vii) Before suspension of benefits due to earnings (see
Sec. 404.456), for benefits payable or paid for months after December
1995 to a non-working auxiliary or survivor who resides in a different
household than the working auxiliary or survivor whose benefits are
suspended.
(2) Reduction of benefits because of entitlement to certain public
disability benefits (see Sec. 404.408) is made before deduction:
(i) Under section 203 of the Act relating to work (see
Secs. 404.415, 404.417, 404.451, and 404.453) and failure to have care
of a child (see Secs. 404.421 and 404.451), and
(ii) Under section 222(b) of the Act on account of refusal to accept
rehabilitation services (see Sec. 404.422).
(3) Reduction of the benefit of a spouse who is receiving a
Government pension (see Sec. 404.408(a)) is made after the withholding
of payments as listed in paragraph (d)(1) of this section and after
reduction because of receipt of certain public disability benefits
(paragraph (b)(2) of this section).
(c) Alien outside the United States; deportation nonpayment--
deduction. If an individual is subject to nonpayment of a benefit for a
month under Sec. 404.460 or Sec. 404.464, no deduction is made from his
benefit for that month under Sec. 404.415, Sec. 404.417, or
Sec. 404.421, and no deduction is made because of that individual's work
from the benefit of any person entitled or deemed entitled to benefits
under Sec. 404.420, on his earnings record, for that month.
(d) Order of priority--deductions and other withholding provisions.
Deductions and other withholding provisions are applied in accordance
with the following order of priority:
(1) Current nonpayments under Secs. 404.460, 404.464, 404.465,
404.467, and 404.469;
(2) Current reductions under Sec. 404.408;
(3) Current reductions under Sec. 404.408a;
(4) Current deductions under Secs. 404.417, 404.421, and 404.422;
(5) Current withholding of benefits under Sec. 404.456;
(6) Unpaid maritime tax deductions (Sec. 404.457);
(7) Withholdings to recover overpayments (see subpart F of this
part);
(8) Penalty deductions under Secs. 404.451 and 404.453.
[40 FR 30813, July 23, 1975, as amended at 44 FR 29047, May 18, 1979; 48
FR 37016, Aug. 16, 1983; 48 FR 46148, Oct. 11, 1983; 56 FR 41789, Aug.
23, 1991; 60 FR 8146, Feb. 10, 1995; 68 FR 15659, Apr. 1, 2003]
Sec. 404.403 Reduction where total monthly benefits exceed maximum family benefits payable.
(a) General. (1) The Social Security Act limits the amount of
monthly benefits that can be paid for any month based on the earnings of
an insured individual. If the total benefits to which all persons are
entitled on one earnings record exceed a maximum amount prescribed by
law, then those benefits must be reduced so that they do not exceed that
maximum.
(2) The method of determining the total benefits payable (the family
maximum) depends on when the insured individual died or became eligible,
whichever is earlier. For purposes of this section, the year in which
the insured individual becomes eligible refers generally to the year in
which the individual attains age 62 or becomes disabled. However, where
eligibility or death is in 1979 or later, the year of death, attainment
of age 62, or beginning of current disability does not control if the
insured individual was entitled to a disability benefit within the
[[Page 140]]
12 month period preceding current eligibility or death. Instead the year
in which the individual became eligible for the former disability
insurance benefit is the year of eligibility.
(3) The benefits of an individual entitled as a divorced spouse or
surviving divorced spouse will not be reduced pursuant to this section.
The benefits of all other individuals entitled on the same record will
be determined under this section as if no such divorced spouse or
surviving divorced spouse were entitled to benefits.
(4) In any case where more than one individual is entitled to
benefits as the spouse or surviving spouse of a worker for the same
month, and at least one of those individuals is entitled based on a
marriage not valid under State law (see Secs. 404.345 and 404.346), the
benefits of the individual whose entitlement is based on a valid
marriage under State law will not be reduced pursuant to this section.
The benefits of all other individuals entitled on the same record
(unless excluded by paragraph (a)(3) of this section) will be determined
under this section as if such validly married individual were not
entitled to benefits.
(5) When a person entitled on a worker's earnings record is also
entitled to benefits on another earnings record, we consider only the
amount of benefits actually due or payable on the worker's record to the
dually-entitled person when determining how much to reduce total monthly
benefits payable on the worker's earnings record because of the maximum.
We do not include, in total benefits payable, any amount not paid
because of that person's entitlement on another earnings record (see
Sec. 404.407). The effect of this provision is to permit payment of up
to the full maximum benefits to other beneficiaries who are not subject
to a deduction or reduction. (See Sec. 404.402 for other situations
where we apply deductions or reductions before reducing total benefits
for the maximum.)
Example 1: A wage earner, his wife and child are entitled to
benefits. The wage earner's primary insurance amount is $600.00. His
maximum is $900.00. Due to the maximum limit, the monthly benefits for
the wife and child must be reduced to $150.00 each. Their original
benefit rates are $300.00 each.
Maximum--$900.00
Subtract primary insurance amount--$600.00
Amount available for wife and child--$300.00
Divide by 2--$150.00 each for wife and child
The wife is also entitled to benefits on her own record of $120.00
monthly. This reduces her wife's benefit to $30.00. The following table
illustrates this calculation.
Wife's benefit, reduced for maximum--$150.00
Subtract reduction due to dual entitlement--$120.00
Wife's benefit--$30.00
In computing the total benefits payable on the record, we disregard
the $120.00 we cannot pay the wife. This allows us to increase the
amount payable to the child to $270.00. The table below shows the steps
in our calculation.
Amount available under maximum--$300.00
Subtract amount due wife after reduction due to entitlement to her own
benefit--$30.00
Child's benefit--$270.00
Example 2: A wage earner, his wife and 2 children are entitled to
benefits. The wage earner's primary insurance amount is $1,250.00. His
maximum is $2,180.00. Due to the maximum limit, the monthly benefits for
the wife and children must be reduced to $310.00 each. Their original
rates (50 percent of the worker's benefit) are $625.00 each. The
following shows the calculation.
Maximum--$2,180.00
Subtract primary insurance amount--$1,250.00
Amount available for wife and children--$930.00
Divide by 3--$310 each for wife and children
The children are also entitled to benefits on their own records.
Child one is entitled to $390.00 monthly and child two is entitled to
$280.00 monthly. This causes a reduction in the benefit to child one to
0.00 and the benefit to child two to $30.00. Again, the following
illustrates the calculation.
Benefit payable to child 1 reduced for maximum--$310.00
Subtract reduction due to dual entitlement--$390.00
Benefit payable to child 1--$0.00
Benefit payable to child 2, reduced for maximum--$310.00
Subtract reduction for dual entitlement--$280.00
Benefit payable to child 2--$30.00
In computing the total benefits payable on the record, we consider
only the benefits actually paid to the children, or $30. This allows
payment of an additional amount to the wife, increasing her benefit to
$625.00. This is how the calculation works.
Amount available under maximum for wife and children--$930.00
[[Page 141]]
Subtract amount due children after reduction due to entitlement to their
own benefits--$30.00
Amount available for wife--$900.00
Amount payable to wife (original benefit)--$625.00
Example 3: A wage earner, his wife and 4 children are entitled to
benefits. The wage earner's primary insurance amount is $1,250.00. His
maximum is $2,180.00. Due to the maximum limit, the monthly benefits for
the wife and children must be reduced to $186.00 each. Their original
rates are $625.00 each. This is how the calculation works.
Maximum--$2,180.00
Subtract primary insurance amount--$1,250.00
Amount available for wife and children--$930.00
Divide by 5--$186.00 each for wife and four children
Two children are also entitled to benefits on their own records.
Child one is entitled to $390.00 monthly and child two is entitled to
$280.00 monthly. This causes a reduction in the benefit to child one to
$0.00 and the benefit to child two to $0.00. This calculation is as
follows.
Benefit to child 1, reduced for maximum--$186.00
Subtract reduction due to dual entitlement--$390.00
Benefit payable to child 1--$0.00
Benefit to child 2, reduced for maximum--$186.00
Subtract reduction for dual entitlement--$280.00
Benefit payable to child two--$0.00
In computing the total benefits payable on the record, we disregard
the $372.00 we cannot pay the children. This allows payment of an
additional amount to the wife, and the two remaining children as
follows:
Amount available under maximum for wife and children--$930.00
Subtract amount due child one and child two after reduction due to
entitlement to their own benefits--$0.00
Amount available for wife and the other two children--$930.00
Amount payable to the wife and each of the remaining two children--
$310.00
(b) Eligibility or death before 1979. Where more than one individual
is entitled to monthly benefits for the same month on the same earnings
record, a reduction in the total benefits payable for that month may be
required (except in cases involving a saving clause--see Sec. 404.405)
if the maximum family benefit is exceeded. The maximum is exceeded if
the total of the monthly benefits exceeds the amount appearing in column
V of the applicable table in section 215(a) of the Act on the line on
which appears in column IV the primary insurance amount of the insured
individual whose earnings record is the basis for the benefits payable.
Where the maximum is exceeded, the total benefits for each month after
1964 are reduced to the amount appearing in column V. However, when any
of the persons entitled to benefits on the insured individual's earnings
would, except for the limitation described in Sec. 404.353(b), be
entitled to child's insurance benefits on the basis of the earnings
record of one or more other insured individuals, the total benefits
payable may not be reduced to less than the smaller of--
(1) The sum of the maximum amounts of benefits payable on the basis
of the earnings records of all such insured individuals, or
(2) The last figure in column V of the applicable table in (or
deemed to be in) section 215(a) of the Act. The applicable table refers
to the table which is effective for the month the benefit is payable.
(c) Eligible for old-age insurance benefits or dies in 1979. If an
insured individual becomes eligible for old-age insurance benefits or
dies in 1979, the monthly maximum is as follows--
(1) 150 percent of the first $230 of the individual's primary
insurance amount, plus
(2) 272 percent of the primary insurance amount over $230 but not
over $332, plus
(3) 134 percent of the primary insurance amount over $332 but not
over $433, plus
(4) 175 percent of the primary insurance amount over $433.
If the total of this computation is not a multiple of $0.10, it will be
rounded to the next lower multiple of $0.10.
(d) Eligible for old-age insurance benefits or dies after 1979. (1)
If an insured individual becomes eligible for old-age insurance benefits
or dies after 1979, the monthly maximum is computed as in paragraph (c)
of this section. However, the dollar amounts shown there will be updated
each year as average earnings rise. This updating is done by first
dividing the average of the total wages (see Sec. 404.203(m)) for the
second
[[Page 142]]
year before the individual dies or becomes eligible, by the average of
the total wages for 1977. The result of that computation is then
multiplied by each dollar amount in the formula in paragraph (c) of this
section. Each updated dollar amount will be rounded to the nearer
dollar; if the amount is an exact multiple of $0.50 (but not of $1), it
will be rounded to the next higher $1.
(2) Before November 2 of each calendar year after 1978, the
Commissioner will publish in the Federal Register the formula and
updated dollar amounts to be used for determining the monthly maximum
for the following year.
(d-1) Entitled to disability insurance benefits after June 1980. If
you first become eligible for old-age or disability insurance benefits
after 1978 and first entitled to disability insurance benefits after
June 1980, we compute the monthly family maximum under a formula which
is different from that in paragraphs (c) and (d) of this section. The
computation under the new formula is as follows:
(1) We take 85 percent of your average indexed monthly earnings and
compare that figure with your primary insurance amount (see Sec. 404.212
of this part). We work with the larger of these two amounts.
(2) We take 150 percent of your primary insurance amount.
(3) We compare the results of paragraphs (d-1) (1) and (2) of this
section. The smaller amount is the monthly family maximum. As a result
of this rule, the entitled spouse and children of some workers will not
be paid any benefits because the family maximum does not exceed the
primary insurance amount.
(e) Person entitled on more than one record during years after 1978
and before 1984. (1) If any of the persons entitled to monthly benefits
on the earnings record of an insured individual would, except for the
limitation described in Sec. 404.353(b), be entitled to child's
insurance benefits on the earnings record of one or more other insured
individuals, the total benefits payable may not be reduced to less than
the smaller of--(i) the sum of the maximum amounts of benefits payable
on the earnings records of all the insured individuals, or (ii) 1.75
times the highest primary insurance amount possible for that month based
on the average indexed monthly earnings equal to one-twelfth of the
contribution and benefit base determined for that year.
(2) If benefits are payable on the earnings of more than one
individual and the primary insurance amount of one of the insured
individuals was computed under the provisions in effect before 1979 and
the primary insurance amount of the others was computed under the
provisions in effect after 1978, the maximum monthly benefits cannot be
more than the amount computed under paragraph (e)(1) of this section.
(f) Person entitled on more than one record for years after 1983.
(1) If any person for whom paragraphs (c) and (d) would apply is
entitled to monthly benefits on the earnings record of an insured
individual would, except for the limitation described in
Sec. 404.353(b), be entitled to child's insurance benefits on the
earnings record of one or more other insured individuals, the total
benefits payable to all persons on the earnings record of any of those
insured individuals may not be reduced to less than the smaller of:
(i) The sum of the maximum amounts of benefits payable on the
earnings records of all the insured individuals, or
(ii) 1.75 times the highest primary insurance amount possible for
January 1983, or if later, January of the year that the person becomes
entitled or reentitled on more than one record.
This highest primary insurance amount possible for that year will be
based on the average indexed monthly earnings equal to one-twelfth of
the contribution and benefit base determined for that year. Thereafter,
the total monthly benefits payable to persons on the earnings record of
those insured individuals will then be increased only when monthly
benefits are increased because of cost-of-living adjustments (see
Sec. 404.270ff).
(2) If benefits are payable on the earnings of more than one
individual and the primary insurance amount of one of the insured
individuals was computed under the provisions in effect before 1979 and
the primary insurance
[[Page 143]]
amount of the other was computed under the provisions in effect after
1978, the maximum monthly benefits cannot be more than the amount
computed under paragraph (f)(1) of this section.
(g) Person previously entitled to disability insurance benefits. If
an insured individual who was previously entitled to disability
insurance benefits becomes entitled to a ``second entitlement'' as
defined in Sec. 404.250, or dies, after 1995, and the insured
individual's primary insurance amount is determined under
Secs. 404.251(a)(1), 404.251(b)(1), or 404.252(b), the monthly maximum
during the second entitlement is determined under the following rules:
(1) If the primary insurance amount is determined under
Secs. 404.251(a)(1) or 404.251(b)(1), the monthly maximum equals the
maximum in the last month of the insured individual's earlier
entitlement to disability benefits, increased by any cost-of-living or
ad hoc increases since then.
(2) If the primary insurance amount is determined under
Sec. 404.252(b), the monthly maximum equals the maximum in the last
month of the insured individual's earlier entitlement to disability
benefits.
(3) Notwithstanding paragraphs (g)(1) and (g)(2) of this section, if
the second entitlement is due to the insured individual's retirement or
death, and the monthly maximum in the last month of the insured
individual's earlier entitlement to disability benefits was computed
under paragraph (d-1) of this section, the monthly maximum is equal to
the maximum that would have been determined for the last month of such
earlier entitlement if computed without regard for paragraph (d-1) of
this section.
[45 FR 1611, Jan. 8, 1980, as amended at 46 FR 25601, May 8, 1981; 48 FR
46148, Oct. 11, 1983; 51 FR 12606, Apr. 14, 1986; 58 FR 64892, Dec. 10,
1993; 62 FR 38450, July 18, 1997; 64 FR 17101, Apr. 8, 1999; 64 FR
57775, Oct. 27, 1999; 65 FR 16813, Mar. 30, 2000]
Sec. 404.404 How reduction for maximum affects insured individual and other persons entitled on his earnings record.
If a reduction of monthly benefits is required under the provisions
of Sec. 404.403, the monthly benefit amount of each of the persons
entitled to a monthly benefits on the same earnings record (with the
exception of the individual entitled to old-age or disability insurance
benefits) is proportionately reduced so that the total benefits that can
be paid in 1 month (including an amount equal to the primary insurance
amount of the old-age or disability insurance beneficiary, when
applicable) does not exceed the maximum family benefit (except as
provided in Sec. 404.405 where various savings clause provisions are
described).
Sec. 404.405 Situations where total benefits can exceed maximum because of ``savings clause.''
The following provisions are savings clauses and describe exceptions
to the rules concerning the maximum amount payable on an individual's
earnings record in a month as described in Sec. 404.403. The effect of a
savings clause is to avoid lowering benefit amounts or to guarantee
minimum increases to certain persons entitled on the earnings record of
the insured individual when a statutory change has been made that would
otherwise disadvantage them. The reduction described in Sec. 404.403
does not apply in the following instances:
(a)-(m) [Reserved]
(n) Months after August 1972. The reduction described in
Sec. 404.403(a) shall not apply to benefits for months after August 1972
where two or more persons were entitled to benefits for August 1972
based upon the filing of an application in August 1972 or earlier and
the total of such benefits was subject to reduction for the maximum
under Sec. 404.403 (or would have been subject to such reduction except
for this paragraph) for January 1971. In such a case, maximum family
benefits on the insured individual's earnings record for any month after
August 1972 may not be less than the larger of:
(1) The maximum family benefits for such month determined under the
applicable table in section 215(a) of the Act (the applicable table in
section 215(a) is that table which is effective for the month the
benefit is payable or in the case of a lump-sum payment, the month the
individual died); or
[[Page 144]]
(2) The total obtained by multiplying each benefit for August 1972
after reduction for the maximum but before deduction or reduction for
age, by 120 percent and raising each such increased amount, if it is not
a multiple of 10 cents, to the next higher multiple of 10 cents.
(o) Months after December 1972. The reduction described in
Sec. 404.403 shall not apply to benefits for months after December 1972
in the following cases:
(1) In the case of a redetermination of widow's or widower's
benefits, the reduction described in Sec. 404.403 shall not apply if:
(i) Two or more persons were entitled to benefits for December 1972
on the earnings records of a deceased individual and at least one such
person is entitled to benefits as the deceased individual's widow or
widower for December 1972 and for January 1973; and
(ii) The total of benefits to which all persons are entitled for
January 1973 is reduced (or would be reduced if deductions were not
applicable) for the maximum under Sec. 404.403.
In such case, the benefit of each person referred to in paragraph
(o)(1)(i) of this section for months after December 1972 shall be no
less than the amount it would have been if the widow's or widower's
benefit had not been redetermined under the Social Security Amendments
of 1972.
(2) In the case of entitlement to child's benefits based upon
disability which began between ages 18 and 22 the reduction described in
Sec. 404.403 shall not apply if:
(i) One or more persons were entitled to benefits on the insured
individual's earnings record for December 1972 based upon an application
filed in that month or earlier; and
(ii) One or more persons not included in paragraph (o)(2)(i) of this
section are entitled to child's benefits on that earnings record for
January 1973 based upon disability which began in the period from ages
18 to 22; and
(iii) The total benefits to which all persons are entitled on that
record for January 1973 is reduced (or would be reduced if deductions
were not applicable) for the maximum under Sec. 404.403.
In such case, the benefit of each person referred to in paragraph
(o)(2)(i) of this section for months after December 1972 shall be no
less than the amount it would have been if the person entitled to
child's benefits based upon disability in the period from ages 18 to 22
were not so entitled.
(3) In the case of entitlement of certain surviving divorced
mothers, the reduction described in Sec. 404.403 shall not apply if:
(i) One or more persons were entitled to benefits on the insured
individual's earnings record for December 1972 based upon an application
filed in December 1972 or earlier; and
(ii) One or more persons not included in paragraph (o)(3)(i) of this
section are entitled to benefits on that earnings record as a surviving
divorced mother for a month after December 1972; and
(iii) The total of benefits to which all persons are entitled on
that record for any month after December 1972 is reduced (or would be
reduced if deductions were not applicable) for the maximum under
Sec. 404.403.
In such case, the benefit of each such person referred to in paragraph
(o)(3)(i) of this section for months after December 1972 in which any
person referred to in paragraph (o)(3)(ii) of this section is entitled
shall be no less than it would have been if the person(s) referred to in
paragraph (o)(3)(ii) of this section had not become entitled to
benefits.
(p) Months after December 1973. The reduction described in
Sec. 404.403 shall not apply to benefits for months after December 1973
where two or more persons were entitled to monthly benefits for January
1971 or earlier based upon applications filed in January 1971 or
earlier, and the total of such benefits was subject to reduction for the
maximum under Sec. 404.403 for January 1971 or earlier. In such a case,
maximum family benefits payable on the insured individual's earnings
record for any month after January 1971 may not be less than the larger
of:
(1) The maximum family benefit for such month shown in the
applicable table in section 215(a) of the Act (the applicable table in
section 215(a) of the Act is that table which is effective for the month
the benefit is payable or in the case of a lump-sum payment, the month
the individual died); or
[[Page 145]]
(2) The largest amount which has been determined payable for any
month for persons entitled to benefits on the insured individual's
earnings records; or
(3) In the case of persons entitled to benefits on the insured
individual's earnings record for the month immediately preceding the
month of a general benefit or cost-of-living increase after September
1972, an amount equal to the sum of the benefit amount for each person
(excluding any part of an old-age insurance benefit increased because of
delayed retirement under the provisions of Sec. 404.305(a) for the month
immediately before the month of increase in the primary insurance amount
(after reduction for the family maximum but before deductions or
reductions for age) multiplied by the percentage of increase. Any such
increased amount, if it is not a multiple of $0.10, will be raised to
the next higher multiple of $0.10 for months before June 1982 and
reduced to the next lower multiple of $0.10 for months after May 1982.
(q) Months after May 1978. The family maximum for months after May
1978 is figured for all beneficiaries just as it would have been if none
of them had gotten a benefit increase because of the retirement credit
if:
(1) One or more persons were entitled (without the reduction
required by Sec. 404.406) to monthly benefits for May 1978 on the wages
and self-employment income of a deceased wage earner;
(2) The benefit for June 1978 of at least one of those persons is
increased by reason of a delayed retirement credit (see
Sec. 404.330(b)(4) or Sec. 404.333(b)(4)); and
(3) The total amount of monthly benefits to which all those persons
are entitled is reduced because of the maximum or would be so reduced
except for certain restrictions (see Sec. 404.403 and Sec. 404.402(a)).
[32 FR 19159, Dec. 20, 1967, as amended at 40 FR 30814, July 23, 1975;
43 FR 8132, Feb. 28, 1978; 43 FR 29277, July 7, 1978; 48 FR 46148, Oct.
11, 1983]
Sec. 404.406 Reduction for maximum because of retroactive effect of application for monthly benefits.
Under the provisions described in Sec. 404.403, beginning with the
month in which a person files an application and becomes entitled to
benefits on an insured individual's earnings record, the benefit rate of
other persons entitled on the same earnings record (aside from the
individual on whose earnings record entitlement is based) are adjusted
downward, if necessary, so that the maximum benefits payable on one
earnings record will not be exceeded. An application may also be
effective (retroactively) for benefits for months before the month of
filing (see Sec. 404.603). For any month before the month of filing,
however, benefits that have been previously certified by the
Administration for payment to other persons (on the same earnings
record) are not changed. Rather, the benefit payment of the person
filing the application 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 to some other person is made erroneous. This means that
for each month of the retroactive period the amount payable to the
person filing the later application 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 maximum amount of benefits payable
for that month to all persons, including the person filing later.
[32 FR 19159, Dec. 20, 1967, as amended at 64 FR 14608, Mar. 26, 1999]