[Title 20 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 1997 Edition]
[From the U.S. Government Printing Office]


          20



          Employees' Benefits

[[Page 1]]

(iv



[[Page v]]

          PARTS 400 TO 499

                         Revised as of April 1, 1997

          CONTAINING
          A CODIFICATION OF DOCUMENTS
          OF GENERAL APPLICABILITY
          AND FUTURE EFFECT

          AS OF APRIL 1, 1997
          With Ancillaries
          Published by
          the Office of the Federal Register
          National Archives and Records
          Administration

          as a Special Edition of
          the Federal RegisterARCHIVES.LI


                                      




                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 1997



               For sale by U.S. Government Printing Office
 Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328

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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 20:
    Chapter III--Social Security Administration...............       3
  Finding Aids:
    Table of CFR Titles and Chapters..........................    1007
    Alphabetical List of Agencies Appearing in the CFR........    1023
    Redesignation Table.......................................    1033
    Chapter III Index.........................................    1035
    List of CFR Sections Affected.............................    1041


      




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.


                               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

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, April 1, 1997), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

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 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
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.

[[Page vi]]

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, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For 
the period beginning January 1, 1986, 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), and Acts Requiring Publication 
in the Federal Register (Table II). A list of CFR titles, chapters, and 
parts and an alphabetical list of agencies publishing in the CFR are 
also included in this volume.
    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

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-523-5227 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, Washington, DC 20408.

SALES

    The Government Printing Office (GPO) processes all sales and 
distribution of the CFR. For payment by credit card, call 202-512-1800, 
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Customer Service call 202-512-1803.

                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

April 1, 1997.

[[Page vii]]



                               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, 1997.

    Redesignation tables appear in the Finding Aids section of the first 
and second volumes and an Index to chapter III appears in the second 
volume.

    For this volume, Kenneth R. Payne was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Frances D. McDonald, assisted by Alomha S. Morris.

[[Page viii]]



[[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




  --------------------------------------------------------------------
Part                                                                Page
400

[Reserved]

401             Privacy and disclosure of official records 
                    and information.........................           4
402             Availability of information and records to 
                    the public..............................          23
404             Federal old-age, survivors and disability 
                    insurance (1950-    )...................          39
410             Federal Coal Mine Health and Safety Act of 
                    1969, Title IV--Black lung benefits 
                    (1969-    ).............................         546
416             Supplemental security income for the aged, 
                    blind, and disabled.....................         632
422             Organization and procedures.................         967
423             Service of process..........................         991
424-497

[Reserved]

498             Civil monetary penalties, assessments and 
                    recommended exclusions..................         992
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.
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 401.103 and 401.115 through 
401.195. 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.



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.
    Individual when used in connection with the Privacy Act or for 
disclosure of nonprogram records, means a living

[[Page 6]]

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 records; provided, that such personal papers are not used by 
the employee or

[[Page 7]]

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 name and address 
of the manager of

[[Page 8]]

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 9]]



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 10]]

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 11]]

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 12]]

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 13]]

    (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 14]]

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 15]]

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 16]]

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 17]]

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 18]]

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.



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 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.

[[Page 19]]



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 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

[[Page 20]]

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 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

[[Page 21]]

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 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

[[Page 22]]

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 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

[[Page 23]]

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 for withholding records: 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.
402.115  Deletion of identifying details.
402.120  Creation of records.
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); Section 413(b) of the Federal 
Mine Safety and Health Act of 1977 (30 U.S.C. 923b), 5 U.S.C. 552 and 
552a; 8 U.S.C. 1360; 18 U.S.C. 1905; 26 U.S.C. 6103; 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 24]]

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 with

[[Page 25]]

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 handwritten, typed, or printed documents (such as 
memoranda, books, brochures, studies, writings, drafts, letters, 
transcripts, and minutes) and documentary material in other forms (such 
as punchcards; magnetic tapes, cards, or discs; 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 or audiovisual processing 
materials. Nor does it include 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. Subpoenas 
are requests only to the extent provided by 45 CFR 2.
    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 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

[[Page 26]]

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.



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 (c) and (d), 
410.610c (c) and (d), and 416.1484 (c) and (d). 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).



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:
    (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.

[[Page 27]]



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.



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 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.

[[Page 28]]



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.



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

[[Page 29]]

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 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

[[Page 30]]

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 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.

[[Page 31]]

    (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 for withholding records: 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 that person's privacy against the 
public benefit that would result from the release. If you were seeking 
information for a purely commercial venture, for example, we might not 
think that disclosure would primarily benefit the public and we would 
deny your request. On the other hand, we would be more inclined to 
release information if you were working on a research project that gave 
promise of providing valuable information to a wide audience. 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.



Sec. 402.110  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 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

[[Page 32]]

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.



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. 402.115  Deletion of identifying details.

    When SSA publishes or otherwise makes available an opinion or order, 
statement of policy, or other record which relates to a private party or 
parties, the name or names or other identifying details may be deleted.



Sec. 402.120  Creation of records.

    We are not required to create new records merely to satisfy a 
request. For example, we are not required to program computers to 
provide data in a particular form or to compile selected items from 
records, provide statistical data, ratios, proportions, percentages, 
etc. If these data have already been compiled and are available, we will 
supply the record when appropriate fees are paid, as provided in 
Secs. 402.160 and 402.165. This does not mean that we will never help 
you get information that does not already exist in our records. However, 
diverting staff and equipment from other responsibilities may not always 
be possible.



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, by telephone, or by mail. 
(However, see Secs. 402.180 through 402.195 for an explanation of your 
appeal rights.) 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. You should 
mark the outside of any envelope used to submit your request as a 
``Freedom of Information Request'', no matter how your request may be 
categorized for fee purposes. (Sections 402.145 through 402.175 explain 
our fees.) The staff at any Social Security office can help you prepare 
this request.



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) Within 10 working days from the date a request is received by 
the appropriate official (see Sec. 402.135), we will

[[Page 33]]

make a determination as to whether the requested record will be 
provided. This 10-day period may be extended by written notice 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 an extension is made, we will notify you, explain why the 
additional time is needed, and tell you the date by which we expect to 
make a decision on your request.



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. 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 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-
1.104; and the General Records Schedules of the National Archives and 
Records Administration.
    (b) Furnishing records. The requirement is that we furnish copies 
only of records that we have or can retrieve. We are not compelled to 
create new records. For example, we are not required to write a new 
program so that a computer will print information in the format you 
prefer. However, if the requested information is maintained in 
computerized form, but we can, with minimal computer instructions, 
produce the information on paper, we will do this if it is the only way 
to respond to a request. Nor are we required to perform research for 
you. On the other hand, 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. Moreover, 
we are required to furnish only one copy of a record and usually impose 
that limit. If information exists in different forms, we will provide 
the record in the form that best conserves government resources. For 
example, if it requires less time and expense to provide a computer 
record as a paper printout rather than in an electronic medium, we will 
provide the printout.



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 did not apply, or applied 
differently, in the previous situations.
    (b) Unauthorized disclosure. The principle stated in paragraph (a) 
of this section does not apply if the previous release was unauthorized.
    (c) 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.



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.

[[Page 34]]

    (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.
    (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 Sec. 402.145(c), and those two hours are spent on a computer 
search, then the two free hours are the first two hours of the 
operator's own operation. If the operator spends less than two hours on 
the search, we will reduce the total search fees by the average hourly 
rate for the operator's time, multiplied by two.
    (c) If we are not charging you for the first 100 pages of 
duplication, under Sec. 402.145 (b) or (c), then those 100 pages are the 
first 100 pages of photocopies of standard size pages, or the first 100 
pages of computer printout. If we cannot use this method to calculate 
the fee reduction, then we will reduce your total duplication fee by the 
normal charge for photocopying a standard size page, multiplied by 100.
    (d) We will charge interest on unpaid bills beginning on the 31st 
day following the day the bill was sent.



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

[[Page 35]]

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 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.)

[[Page 36]]



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
    (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.

[[Page 37]]

    (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 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

[[Page 38]]

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 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

[[Page 39]]

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, 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 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  Introduction.
404.202  Other regulations related to this subpart.
404.203  Definitions.
404.204  Methods of computing primary insurance amounts--general.

 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.

[[Page 40]]

   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  Automatic increases of ``frozen'' minimum primary insurance 
          amount.
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.
404.303  Definitions.
404.304  General rules on benefit amounts.
404.305  When you may not be entitled to benefits.

                     Old-Age and Disability Benefits

404.310  Who is entitled to old-age benefits.
404.311  When entitlement to old-age benefits begins and ends.
404.312  Old-age benefit amounts.
404.313  Using delayed retirement credit to increase old-age benefit 
          amount.
404.315  Who is entitled to disability benefits.

[[Page 41]]

404.316  When entitlement to disability benefits begins and ends.
404.317  Disability benefit amounts.
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  Who is entitled to widow's or widower's benefits.
404.336  Who is entitled to widow's or widower's benefits as a surviving 
          divorced spouse.
404.337  When widow's and widower's benefits begin and end.
404.338  Widow's and widower's benefit amounts.
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 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.
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.

[[Page 42]]

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  [Reserved]
404.410  Reduction in benefits for age--general.
404.411  Special reduction in benefits for age involving entitlement to 
          two or more benefits.
404.412  Adjustments in benefit reductions for age.
404.413  Reduction in benefits for age following an increase in primary 
          insurance amounts.
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  Deductions because beneficiary failed 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.
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.
404.460  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.

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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 Internal Revenue Service 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.

            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  Filing after the first month you meet the requirements for 
          benefits.
404.622  Limiting an application.
404.623  Filing by person 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.

               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.

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                  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.
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.

[[Page 45]]

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

404.967  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.

           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.

[[Page 46]]

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.
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.

[[Page 47]]

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 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.

[[Page 48]]

 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.
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.

[[Page 49]]

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 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 evidence of your impairment.
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.

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 physician or psychologist.
404.1519i  Other sources for consultative examinations.
404.1519j  Objections to the designated physician or psychologist.
404.1519k  Purchase of medical examinations, laboratory tests, and other 
          services.
404.1519m  Diagnostic tests or procedures.
404.1519n  Informing the examining physician or psychologist of 
          examination scheduling, report content, and signature 
          requirements.

[[Page 50]]

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 medical opinions about your impairment(s) or 
          disability.
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.
404.1575  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 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.

[[Page 51]]

                    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 consultant.
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 standards.
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.
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.

[[Page 52]]

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 governing representatives.
404.1745  What happens to a representative who breaks the rules.
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.
404.2015  Information considered in determining whether to make 
          representative payment.
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 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.

[[Page 53]]

       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.)
    (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 Secretary. It also 
sets out the Secretary's responsibilities in carrying

[[Page 54]]

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]



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) Secretary; Commissioner; Appeals Council; Administrative Law 
Judge defined. (1) Secretary means the Secretary of Health and Human 
Services.
    (2) Commissioner means the Commissioner of Social Security.
    (3) 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.
    (4) Administrative Law Judge means an Administrative Law Judge in 
the Office of Hearings and Appeals of the Social Security 
Administration.
    (c) Miscellaneous. (1) Certify, when used in connection with the 
duty imposed on the Secretary 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 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

[[Page 55]]

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]



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 Secretary 
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 Secretary pursuant to law. 
Such extension of any period of limitation does not apply to periods 
during which benefits may be paid for months prior to the month 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]



           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 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

[[Page 56]]

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 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

[[Page 57]]

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]



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. V \4\--
          Col. I--Date of birth                                        Col. III \2\--                Age in year
                                                Men          Women     Year of death   Col. IV \3\    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

[[Page 58]]

                                                                                                                
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 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

[[Page 59]]

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 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.

[[Page 60]]

    (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 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

[[Page 61]]

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 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-

[[Page 62]]

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 
Secretary 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 Secretary 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.



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.



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--

[[Page 63]]

    (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 Secretary 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 Secretary 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]



             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  Introduction.

    In this subpart we describe how we compute your primary insurance 
amount, which is the first step in finding your monthly social security 
benefit amount. Your primary insurance amount is the basic figure we use 
in finding the monthly benefit actually payable to you and to members of 
your family. For example, if you retire at age 65 or become disabled, 
your monthly benefit is equal to your primary insurance amount. In other 
situations, your benefit does not equal your primary insurance amount. 
For example, if you become entitled to old-age benefits before you reach 
age 65, your benefit is less than your primary insurance amount, as 
described in Secs. 404.410 through 404.413. Benefits payable to members 
of your family are a specified percentage of your primary insurance 
amount. (See subpart D.) We explain how we automatically increase your 
primary insurance amount to keep it up to date with rises in the cost of 
living. We also explain how and when we recompute your primary insurance 
amount and how and when we recalculate your primary insurance amount. We 
have organized this subpart as follows:
    (a) In Secs. 404.210 through 404.212, we describe the average-
indexed-monthly-earnings method we use for computing primary insurance 
amounts of workers who after 1978 reach age 62, or become disabled or 
die before age 62;
    (b) In Secs. 404.220 through 404.222, we describe the average-
monthly-wage method we use for computing primary insurance amounts of 
workers who reach age 62, become disabled, or die before 1979;
    (c) In Secs. 404.230 through 404.233, we describe the guaranteed 
alternative method of computing primary insurance amounts that applies 
to people who reach age 62 after 1978 but before 1984;
    (d) In Secs. 404.240 through 404.242, we describe a method of 
computing primary insurance amounts (called the old-start method) for 
people who had all or substantially all their social security earnings 
before 1951;
    (e) In Secs. 404.250 through 404.252, we describe special rules we 
apply in computing primary insurance amounts of people who had a period 
of disability at some time in their lives;
    (f) In Secs. 404.260 through 404.261, we describe how we compute the 
special

[[Page 64]]

minimum primary insurance amount for long-term, low-paid workers;
    (g) In Secs. 404.270 through 404.277, we describe how we 
automatically adjust primary insurance amounts to take account of rises 
in the cost of living;
    (h) In Secs. 404.280 through 404.287, we describe how and when we 
recompute primary insurance amounts to take into account additional 
earnings;
    (i) In Sec. 404.290, we describe how and when we recalculate primary 
insurance amounts; and
    (j) Appendices I-VI contain material such as figures and formulas 
that we use in finding a primary insurance amount under various 
circumstances.



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 or the 
Department of Health and Human Services.
    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.



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 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.

[[Page 65]]

    (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-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,

[[Page 66]]

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.
    (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:

[[Page 67]]



------------------------------------------------------------------------
                            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 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.

[[Page 68]]

    (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.
    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.

[[Page 69]]

    (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 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

[[Page 70]]

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 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

[[Page 71]]

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--

------------------------------------------------------------------------
                       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.

[[Page 72]]

    (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.
    (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

[[Page 73]]

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 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.

[[Page 74]]

    (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 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.

[[Page 75]]

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 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:

[[Page 76]]



------------------------------------------------------------------------
                            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]



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.

[[Page 77]]

    (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 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,

[[Page 78]]

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 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-

[[Page 79]]

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. (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

[[Page 80]]

    (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 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

[[Page 81]]

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]

                        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

[[Page 82]]

    (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]



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

[[Page 83]]

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 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

[[Page 84]]

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  Automatic increases of ``frozen'' minimum primary insurance amount.

    (a) General. There are special rules for automatic cost-of-living 
increases in the minimum primary insurance amount for people whose 
primary insurance amount is computed under the average-indexed-monthly-
earnings method. The minimum primary insurance amount is frozen, for 
people becoming eligible after 1978, and before 1982, at $122 (the least 
amount in the benefit table in effect in December 1978, rounded to the 
next higher $1.00. See appendix III.). The frozen minimum is subject to 
automatic cost-of-living increases only in years in which you or your 
dependents or survivors are entitled to benefits.
    (b) Old-age insurance benefit based on frozen minimum primary 
insurance amount. We apply automatic cost-of-living increases to your 
minimum primary insurance amount beginning with the earliest of--
    (1) December of the year you become entitled to benefits and get at 
least a partial benefit; or
    (2) December of the year you reach age 65 if you are entitled to 
benefits at or before age 65, regardless of whether you get at least a 
partial benefit; or
    (3) December of the year you become entitled to benefits if that is 
not until after you reach age 65.
    (c) Survivor benefits based on minimum primary insurance amount 
either before or after the worker's entitlement to old-age insurance 
benefits. (1) We apply automatic cost-of-living increases to your 
minimum primary insurance amount for purposes of adjusting the benefits 
of your survivors--
    (i) In June of any year in which your children, your surviving 
spouse caring for your children, or your parents are entitled to 
survivors benefits for at least one month; and
    (ii) Beginning with June of the earlier of--
    (A) The year your aged surviving spouse (as defined in Secs. 404.335 
and 404.336) becomes entitled to benefits and gets at least a partial 
benefit; or
    (B) The year your surviving spouse is 65 or older and becomes 
entitled to benefits.
    (2) Automatic cost-of-living increases are not applied to your 
minimum primary insurance amount in any year in which no survivor of 
yours is entitled to benefits on your social security record.

[47 FR 30734, July 15, 1982, as amended at 48 FR 46143, Oct. 11, 1983; 
51 FR 12604, Apr. 14, 1986]



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

[[Page 85]]

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 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

[[Page 86]]

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 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

[[Page 87]]

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 
$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

[[Page 88]]

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 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.

[[Page 89]]

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 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]

[[Page 90]]

  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 of 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
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 of 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

[[Page 91]]

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               But    primary    her wages
   At      But not    insurance     At       not   insurance   and self-
 least--     more    amount is--  least--   more     amount   employment
            than--                         than--     is--    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 
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 

[[Page 92]]

                                                                        
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 
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               But    primary    her wages
   At      But not    insurance     At       not   insurance   and self-
 least--     more    amount is--  least--   more     amount   employment
            than--                         than--     is--    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 

[[Page 93]]

                                                                        
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 
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 

[[Page 94]]

                                                                        
  ......                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 
  ......                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 

[[Page 95]]

                                                                        
  ......                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 
  ......                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 

[[Page 96]]

                                                                        
  ......                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 
  ......                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 

[[Page 97]]

                                                                        
  ......                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 
  ......                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 
------------------------------------------------------------------------


[[Page 98]]

[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 of 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 of 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
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

[[Page 99]]

                                                                        
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.--Primary  III.--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.--Primary  III.--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.--Primary  III.--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 
27.........................................       314.30         471.60 
28.........................................       332.70         499.20 
29.........................................       351.10         526.90 
30.........................................       369.50         554.50 
------------------------------------------------------------------------


                              December 1985                             
------------------------------------------------------------------------
                                             II.--Primary  III.--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.--Primary  III.--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 

[[Page 100]]

                                                                        
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
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

[[Page 101]]

                                                                        
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 of 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 of 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)).

    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

[[Page 102]]

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  General rules on benefit amounts.

    This subpart describes how the highest monthly benefit amount you 
ordinarily could qualify for under each type of benefit is determined. 
However, the highest monthly benefit amount you could qualify for may 
not be the amount that you actually are paid each month. 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 the amount of your benefit payments are listed 
below:
    (a) Reductions based on age or earnings. As explained in 
Secs. 404.410 through 404.413, your old-age, wife's, husband's, widow's, 
or widower's benefits may be reduced if you choose to receive them 
before age 65. Also, as explained in Secs. 404.415 through 404.417, 
deductions may be made from your benefits if your earnings or the 
insured person's earnings go over certain limits.
    (b) Overpayments and underpayments. Your benefits may be increased 
or decreased for a time to make up for any previous overpayment or 
underpayment that was made on the insured person's record. For more 
information about this, see subpart F.
    (c) [Reserved]
    (d) Family maximum. As explained in Sec. 404.403, there is a maximum 
amount set for each insured person's earnings record that limits the 
total benefits payable on that 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, mother's, father's, widow's or widower's benefits and receive 
a Government pension for work that was not covered under social 
security, your benefits may be reduced by the amount of that pension. 
Special age 72 payments are also reduced by the amount of a Government 
pension. For more information about this, see Sec. 404.408(a) which 
covers benefits and Sec. 404.384(c) which covers special age 72 
payments.
    (f) Rounding. After all other deductions or reductions, any monthly 
benefit which is not a multiple of $1 is reduced to the next lower 
multiple of $1.

[44 FR 34481, June 15, 1979, as amended at 48 FR 46148, Oct. 11, 1983]



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--

[[Page 103]]

    (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  Who is entitled to old-age benefits.

    You are entitled to old-age benefits if--
    (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 become 65 years old. At age 65, your disability benefits 
automatically become old-age benefits.

[44 FR 34481, June 15, 1979, as amended at 51 FR 10616, Mar. 28, 1986]



Sec. 404.311  When entitlement to old-age benefits begins and ends.

    (a) You are entitled to old-age benefits at age 65 beginning with 
the first month covered by your application in which you meet all the 
requirements for entitlement.
    (b) You are entitled to old-age benefits if you have attained age 
62, but are under age 65, beginning with the first month covered by your 
application throughout which you meet all the requirements for 
entitlement.
    (c) Your entitlement to benefits ends with the month before the 
month of your death.

[48 FR 21926, May 16, 1983]



Sec. 404.312  Old-age benefit amounts.

    (a) If your old-age benefits begin at age 65, your monthly benefit 
is equal to the primary insurance amount.
    (b) If your old-age benefits begin after you become 65 years old, 
your monthly benefit is your primary insurance amount plus an increase 
for retiring after age 65. See Sec. 404.313 for a description of these 
increases.
    (c) If your old-age benefits begin before you become 65 years old, 
your monthly benefit amount is the primary insurance amount minus a 
reduction for each month you are entitled before you become 65 years 
old. These reductions are described in Secs. 404.410 through 404.413.

[44 FR 34481, June 15, 1979, as amended at 51 FR 12604, Apr. 14, 1986]



Sec. 404.313  Using delayed retirement credit to increase old-age benefit amount.

    (a) General. (1) If you do not receive old-age benefits for the 
month you reach age 65 (retirement age) or for any later month before 
the month in which you reach age 70 (72 before 1984), you may earn 
delayed retirement credits which will increase your benefit amount when 
you retire. You earn delayed retirement credits for each of those months 
for which you are fully insured and are eligible for but do not receive 
old-age benefits, either because of your work or earnings, or because 
you have not applied for benefits. If you were entitled to old-age 
benefits before age 65 you may still earn delayed retirement credit for 
months beginning with age 65 in which your benefits were reduced to zero 
because of your work or earnings.
    (2) Retirement age is the age at which entitlement to full benefits 
may begin and is the age at which you may

[[Page 104]]

begin to earn delayed retirement credits. Age 65 is the retirement age 
for workers who reach that age before the year 2003. For workers who 
reach age 65 after 2002, retirement age will gradually increase from 65 
to 67, depending on each person's date of birth.
    (b) How we determine delayed retirement credits--(1) General. The 
amount of the delayed retirement credit depends on the year you reach 
retirement age, and the number of months you are eligible for and do not 
receive old-age benefits from retirement age to age 70 (72 before 1984). 
We total these months, which need not be consecutive, multiply the total 
by the applicable percent as provided in paragraphs (b)(2), (3), and (4) 
of this section, multiply your benefit amount by this product, and round 
to the next lowest multiple of $0.10 if the answer is not already a 
multiple of $0.10. The result is your delayed retirement credit which we 
add to your benefit amount. The supplementary medical insurance premium, 
if any, is then deducted and the result is rounded to the next lowest 
multiple of $1.00 if it is not already a multiple of $1.00.
    (2) Before 1982. If you reach age 65 before 1982, your delayed 
retirement credit equals one-twelfth of one percent of your benefit 
amount times the number of months after 1970 in which you are age 65 or 
older and for which you are eligible but do not receive old-age 
benefits.
    (3) After 1981 and before 1990. If you reach age 65 after 1981 and 
before 1990, your delayed retirement credit equals one-fourth of one 
percent of your monthly benefit amount times the number of months in 
which you are age 65 or older and for which you are eligible but do not 
receive old-age benefits.
    (4) Beginning with 1990. If you reach age 65 in 1990 or later, the 
rate of the delayed retirement credit (i.e., one-fourth of one percent 
as stated in paragraph (b)(3) of this section) is increased by one-
twenty-fourth of one percent in each even year through 2008. Thus, 
depending on when you reach age 65, your delayed retirement credit 
percent will be as follows:

------------------------------------------------------------------------
                                            Delayed retirement credit   
         Year you reach age 65                       percent            
------------------------------------------------------------------------
1990...................................  \7/24\ of 1 percent.           
1991...................................  \7/24\ of 1 percent.           
1992...................................  \1/3\ of 1 percent.            
1993...................................  \1/3\ of 1 percent.            
1994...................................  \3/8\ of 1 percent.            
1995...................................  \3/8\ of 1 percent.            
1996...................................  \5/12\ of 1 percent.           
1997...................................  \5/12\ of 1 percent.           
1998...................................  \11/24\ of 1 percent.          
1999...................................  \11/24\ of 1 percent.          
2000...................................  \1/2\ of 1 percent.            
2001...................................  \1/2\ of 1 percent.            
2002...................................  \13/24\ of 1 percent.          
2003...................................  \13/24\ of 1 percent.          
2004...................................  \7/12\ of 1 percent.           
2005...................................  \7/12\ of 1 percent.           
2006...................................  \5/8\ of 1 percent.            
2007...................................  \5/8\ of 1 percent.            
2008 and later.........................  \2/3\ of 1 percent.            
------------------------------------------------------------------------


[[Page 98]]

    Example.  Alan was qualified for old-age benefits when he reached 
age 65 in January 1983, but decided not to apply for old-age benefits 
immediately because he was still working. When he became age 66 in 
January 1984, he stopped working and applied for these benefits 
beginning with that month. Based on his earnings, his primary insurance 
amount was $226.60, and his monthly old-age benefit after deducting his 
supplemental medical insurance premium was $211.00 ($226.60 minus $15.50 
SMI premium equals $211.10, rounded to $211.00), if no delayed 
retirement credits were added. However, he did not receive benefits for 
the 12 months from the month in which he became 65 (January 1983) until 
the first month in which he stopped working (January 1984). Therefore, 
his monthly old-age benefit of $226.60 was increased by three percent 
(one-quarter of one percent times 12 months) to yield a total $233.39, 
which rounded to the next lower multiple of $0.10 is $233.30. After 
deducting the SMI premium and rounding to the next lower multiple of $1, 
the benefit amount is $217.00.
    (c) Effective date of delayed retirement credit. If you are entitled 
to benefits, we examine our records after the end of each calendar year 
to determine whether you have earned the delayed retirement credit 
(i.e., whether there were months in which you were fully insured and 
eligible for benefits, but did not receive them). Any increase in your 
benefit amount due to the delayed retirement credit is effective 
beginning with January of the year after the year the credit is earned. 
If you are age 65 or older and eligible for old-age benefits but have 
not applied, we compute the delayed retirement credit for the year(s) 
before you applied and pay it to you as part of your first benefit 
check. The delayed retirement credit for the

[[Page 105]]

year you applied and later years is added to your benefits beginning 
with the following January. However, in either case, in the year in 
which you attain age 70 (72 before 1984), we compute the credit through 
the month before the month you reach that age and add it to your benefit 
amount beginning with that month.
    (d) Delayed retirement credit and special minimum primary insurance 
amounts. We do not add any delayed retirement credit 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 credit only to old-age benefits 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 credit is higher than the 
benefit based on your special minimum primary insurance amount, we 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 credit, we use the special minimum 
primary insurance amount to determine the family maximum and the 
benefits of others entitled on your earnings record.
    (e) Effect of delayed retirement credit on other benefits--(1) 
Surviving spouse or surviving divorced spouse. If you earned delayed 
retirement credits during your lifetime, we compute your surviving 
spouse's or surviving divorced spouse's benefit based on your regular 
primary insurance amount plus the amount of the delayed retirement 
credit. All delayed retirement credits, including credits in the year of 
death, can be used in computing your surviving spouse's or surviving 
divorced spouse's benefit beginning with the month of death. We compute 
the delayed retirement credit up to, but not including, the month of 
death.
    (2) Other family members. We do not use your delayed retirement 
credits to increase the benefits of other family members entitled on 
your earnings record.
    (3) Family maximum. The delayed retirement credits are added to your 
benefit after we compute the family maximum. However, your delayed 
retirement credits which are used to compute your surviving spouse's or 
surviving divorced spouse's benefit are added to the spouse's benefits 
before we reduce for the family maximum.

[51 FR 12605, Apr. 14, 1986]



Sec. 404.315  Who is entitled to disability benefits.

    (a) General. You are entitled to disability benefits while disabled 
before age 65 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.
    (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]

[[Page 106]]



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 become 65 years old (at age 65 
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 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

[[Page 107]]

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]



Sec. 404.317  Disability benefit amounts.

    Your monthly benefit is equal to the primary insurance amount. This 
amount is computed under the rules in subpart C as if it were an old-age 
benefit, and as if you were 62 years old at the beginning of the 5-month 
waiting period mentioned in Sec. 404.315(d). If the 5-month waiting 
period is not required because of your previous entitlement, your 
primary insurance amount 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 workmen's compensation payments before you 
become 62 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 became 65 years old.



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 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 
calender quarter after your disability began in which you become insured 
for disability. Your period of disability may not begin after you become 
65 years old.

[[Page 108]]

    (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 become 65 years old;
    (2) The month immediately preceding your termination month 
(Sec. 404.325); or
    (3) If you perform substantial gainful activity during the 15-month 
period following the end of your trial work period, 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]



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 
but in no event earlier than the first month after the 15th month 
following the end of your trial work period.
    Example:  You complete your trial work period in December 1980. You 
are then working at the substantial gainful activity level and continue 
to do so throughout the 15 months following completion of your trial 
work period and thereafter. Your termination month will be April 1982, 
which is the 16th month--that is, the first month in which you performed 
substantial gainful activity after the 15th month following your trial 
work period.
    Example:  You complete your trial work period in December 1980 but 
you are not able to work at the substantial gainful activity level until 
December 1982. Your termination month will be March 1983--that is, the 
third month after the earliest month you perform or are determined able 
to perform substantial gainful activity.

[49 FR 22271, May 29, 1984]

                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:

[[Page 109]]

    (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
    (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

[[Page 110]]

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 62 years old, the child who was in your care 
becomes age 16 (unless disabled) or is otherwise no longer entitled to 
child's benefits. (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.)
    (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]



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 your monthly 
benefit may change as explained in Sec. 404.304.

[51 FR 11912, Apr. 8, 1986]



Sec. 404.335  Who is entitled to widow's or widower's benefits.

    You may be entitled to benefits as the widow or widower of a person 
who was fully insured when he or she died. You are entitled to these 
benefits if--
    (a) You are the insured's widow or widower 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 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--
    (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; or
    (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

[[Page 111]]

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--
    (1) You are entitled to wife's or husband's benefits for the month 
before the month in which the insured dies and you are 65 years old 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 become 65 years old;
    (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 age 65 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; or
    (4) You applied in 1990 for widow's or widower's benefits based on 
disability, and:
    (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; and
    (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--
    (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 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, the waiting period is not required;
    (3) 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

[[Page 112]]

under this provision for any month prior to January 1991; and
    (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(er)'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; and
    (e) You are unmarried, unless--
    (1) You remarried after you became 60 years old; or
    (2) For benefits for months after 1983--
    (i) You are now age 60 or older;
    (ii) You remarried after attaining age 50 but before attaining age 
60; and
    (iii) At the time of the remarriage, you were entitled to 
widow(er)'s benefits as a disabled widow(er); or
    (3) For benefits for months after 1983--
    (i) You are now at least age 50 but not yet age 60;
    (ii) You remarried after attaining age 50; and
    (iii) 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).

[44 FR 34481, June 15, 1979, as amended at 47 FR 12162, Mar. 22, 1982; 
49 FR 24115, June 12, 1984; 51 FR 4482, Feb. 5, 1986; 51 FR 10616, Mar. 
28, 1986; 55 FR 25825, June 25, 1990; 57 FR 30119, July 8, 1992; 59 FR 
14747, Mar. 30, 1994; 60 FR 8145, Feb. 10, 1995]



Sec. 404.336  Who is entitled to widow's or widower's benefits as a surviving divorced spouse.

    You may be entitled to widow's or widower's benefits as the 
surviving divorced wife or the surviving divorced husband of a person 
who was fully insured when he or she died. You are entitled to these 
benefits if--
    (a) You are the insured's surviving divorced wife or surviving 
divorced husband and--
    (1) You were validly married to the insured under State law as 
described in Sec. 404.345 or are 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, except that you need not apply again if--
    (1) You are entitled to wife's or husband's benefits for the month 
before the month in which the insured dies and you are 65 years old 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 become 65 years old;
    (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 age 65 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; or
    (4) You applied in 1990 for widow's or widower's benefits based on 
disability, and:
    (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; and
    (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--
    (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;

[[Page 113]]

    (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 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, the waiting period is not required; 
and
    (3) For monthly benefits payable for months after December 1990, if 
you were or have been eligible for supplemental security income or a 
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;
    (d) You are not entitled to an old-age benefit that is equal to or 
larger than the insured person's primary insurance amount; and
    (e) You are unmarried, unless for benefits for months after 1983--
    (1) You remarried after you became 60 years old; or
    (2)(i) You are now age 60 or older;
    (ii) You remarried after attaining age 50 but before attaining age 
60; and
    (iii) At the time of the remarriage, you were entitled to 
widow(er)'s benefits as a disabled widow(er); or
    (3)(i) You are now at least age 50 but not yet age 60;
    (ii) You remarried after attaining age 50; and
    (iii) 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).

[44 FR 34481, June 15, 1979, as amended at 47 FR 12162, Mar. 22, 1982; 
51 FR 4482, Feb. 5, 1986; 55 FR 25300, June 21, 1990; 55 FR 25825, June 
25, 1990; 57 FR 30119, July 8, 1992; 58 FR 64891, Dec. 10, 1993]



Sec. 404.337  When widow's and widower's benefits begin and end.

    (a) You are 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 the other requirements for 
entitlement.
    (b) Your entitlement to benefits ends 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) If your widow's or widower's benefit is based upon a disability, 
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 payments are subject to the 
provisions of paragraphs (c) and (d) of this section. You may remain 
eligible for payment of benefits if you became 65 years old before your 
termination month and you met the other requirements for widow's or 
widower's benefits. If your widow's or widower's benefit is based on a 
finding that drug addiction or alcoholism is a contributing factor 
material to the determination of disability as described in 
Sec. 404.1535, your entitlement to benefits will terminate 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

[[Page 114]]

of the number of entitlement periods you may have had, unless you are 
otherwise disabled without regard to drug addiction or alcoholism.
    (3) The month before the month in which you die.
    (c)(1) Your benefits 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 as described in Sec. 404.316(c)(1)(ii);
    (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.
    (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 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.) 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.

[44 FR 34481, June 15, 1979, as amended at 47 FR 31542, July 21, 1982; 
49 FR 22271, May 29, 1984; 51 FR 4482, Feb. 5, 1986; 51 FR 17617, May 
14, 1986; 58 FR 64891, Dec. 10, 1993; 60 FR 8146, Feb. 10, 1995]



Sec. 404.338  Widow's and widower's benefits amounts.

    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 for the purpose of determining 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 age 65 by working or by delaying filing for 
benefits (see Sec. 404.313). The amount of your monthly benefit may 
change as explained in Sec. 404.304. In addition, your monthly benefit 
will be reduced if the insured person had been entitled to old-age 
benefits that were reduced for age because he or she chose to receive 
them before becoming 65 years old. 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.

[44 FR 34481, June 15, 1979, as amended at 51 FR 4482, Feb. 5, 1986]



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;

[[Page 115]]

    (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 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) The child in your care becomes age 16 and not disabled or is 
otherwise no longer entitled to child's benefits. (See paragraph (c) of 
this section if you were entitled to mother's or father's benefits for 
August 1981.)
    (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]



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 your 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

[[Page 116]]

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 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

[[Page 117]]

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
    (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

[[Page 118]]

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 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 child's benefits begin and end.

    (a) When benefits begin. (1) If the insured is deceased, you are 
entitled to child's benefits beginning with the first month covered by 
your application in which you meet all other requirements for 
entitlement.
    (2) If the insured is living, you are entitled to child's benefits 
beginning with the first month covered by your application:
    (i) Throughout which you meet all the other requirements for 
entitlement if your first month of entitlement is September 1981 or 
later; or
    (ii) In which you meet all the other requirements for entitlement if 
your first month of entitlement is before September 1981.
    (b) Your entitlement to benefits ends with the month before the 
month in which one of the following events first occurs:
    (1) You become 18 years old, unless you are disabled or a full-time 
student. If you become 18 years old and you are disabled, your 
entitlement to disability benefits ends with the second month following 
the month in which your disability ends. If your disability ends on or 
after December 1, 1980, your entitlement to disability benefits 
continues, subject to the provisions of paragraphs (c) and (d) of this 
section, until the month before your termination month (Sec. 404.325). 
If you become 18 years old and you qualify as a full-time student who is 
not disabled, your entitlement ends with the last month you are a full-
time student or, if earlier, the month before the month you become age 
19. 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, your entitlement will end with the 
month in which the quarter or semester in which you are enrolled ends if 
you are required to enroll for each quarter or semester. If the school 
you are attending does not have a quarter or semester system which 
requires reenrollment, your benefits will end 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.
    (2) You marry. Your benefits will not end, 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.
    (3) The insured's entitlement to old-age or disability benefits ends 
for a

[[Page 119]]

reason other than death or the attainment of age 65. 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 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.
    (4) 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), your benefits also will 
terminate under the following conditions:
    (1) If your benefits have been suspended for a period of 12 
consecutive months for failure to comply with treatment, your benefits 
will terminate 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, your benefits will terminate with the month following 
such 36-month payment period unless you are otherwise disabled without 
regard to drug addiction or alcoholism.
    (d)(1) Your benefits 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 as described in Sec. 404.316(c)(1)(ii);
    (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.
    (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.

    (e) 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 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.) 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.

[44 FR 34481, June 15, 1979, as amended at 47 FR 31543, July 21, 1982; 
48 FR 21927, May 16, 1983; 49 FR 22271, May 29, 1984; 49 FR 24115, June 
12, 1984; 51 FR 17617, May 14, 1987; 60 FR 8146, Feb. 10, 1995; 61 FR 
38363, July 24, 1996]



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

[[Page 120]]

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.

    (a) General. You may be related to the insured person in one of 
several ways and be entitled to benefits as his or her child--as a 
natural child, legally adopted child, stepchild, grandchild, 
stepgrandchild, or equitably adopted child.
    (b) Use of State laws. To decide your relationship to the insured, 
we look to the laws that are in effect in 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 that were in effect at the time 
the insured worker died in the State where the insured had his or her 
permanent home. 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 will look at the laws of the District of 
Columbia. For a definition of permanent home, see Sec. 404.303. The 
State laws we use are the ones the courts would use to decide whether 
you could inherit a child's share of the insured's personal property if 
he or she were to die without leaving a will. If these laws would not 
permit you to inherit the insured's personal property as his or her 
child, you may still be eligible for child's benefits if you are related 
to the insured in one of the other ways described in Secs. 404.355 
through 404.359.

[44 FR 34481, June 15, 1979, as amended at 49 FR 21513, May 22, 1984]



Sec. 404.355  Who is the insured's natural child.

    You may be eligible for benefits as the insured's natural child if 
one of the following conditions is met:
    (a) You could inherit the insured's personal property as his or her 
natural child under State inheritance laws as described in Sec. 404.354.
    (b) 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 described in 
Sec. 404.346(a).
    (c) 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. In the case where the insured 
is deceased, the acknowledgement, court decree, or court order must have 
been made before his or her death. For purposes of determining whether 
the conditions of entitlement are met throughout the first month as 
stated in Sec. 404.352(a), the written acknowledgement, court decree, or 
court order will be considered to have occurred on the first day of the 
month in which it actually occurred.
    (d) Your mother or father has not married the insured but you have 
evidence other than the evidence described in paragraph (c) 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. See Sec. 404.366 for an explanation of the terms living 
with and contributing to your support. If the insured is not alive at 
the time of your application you must have evidence to show that the 
insured was

[[Page 121]]

either living with you or contributing to your support when he or she 
died.

[44 FR 34481, June 15, 1979, as amended at 45 FR 65540, Oct. 3, 1980; 49 
FR 24115, June 12, 1984]



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.



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. 
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]



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 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

[[Page 122]]

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.

    If you are the insured's natural child, as defined in Sec. 404.355, 
you are considered dependent upon him or her. However, if you are 
legally adopted by someone else during the insured's lifetime and after 
the adoption you apply for child's benefits on the insured's earnings 
record, you will be considered dependent upon the insured (your natural 
parent) only if he or she was either living with you or contributing to 
your support 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 he 
or she died or became entitled to disability or old-age benefits, at the 
beginning of the period of disability or at the time he or she became 
entitled to benefits.



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 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

[[Page 123]]

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-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:

[[Page 124]]

    (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 
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 through 404.364 (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

[[Page 125]]

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]



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 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

[[Page 126]]

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]



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-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

[[Page 127]]

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.

                       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.

[[Page 128]]

    (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 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]

[[Page 129]]



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 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), 
222(b), 223(e), 224, 225, and 702(a)(5) of the Social Security Act (42 
U.S.C. 402, 403, 404 (a) and (e), 405 (a) and (c), 422(b), 423(e), 424a, 
425, and 902(a)(5)).

    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. 404.377 through 404.380 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);

[[Page 130]]

    (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. Adjustments may be required because an error has 
been made in payments to an individual (see subpart F of this part).
    (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]



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]

[[Page 131]]



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:
    (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); and
    (vi) Before the redetermination of the amount of benefit payable to 
an individual who has been convicted of certain offenses (see 
Sec. 404.465).
    (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);

[[Page 132]]

    (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]



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 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.
    (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

[[Page 133]]

    (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 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 
Secretary 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 (as 
computed in Sec. 404.212a of this part) and compare that figure with 
your primary insurance amount (as computed in Sec. 404.212). 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

[[Page 134]]

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 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.

[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]



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
    (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

[[Page 135]]

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
    (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

[[Page 136]]

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. 404.607). 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.



Sec. 404.407  Reduction because of entitlement to other benefits.

    (a) Entitlement to old-age or disability insurance benefit and other 
monthly benefit. If an individual is entitled to an old-age insurance 
benefit or disability insurance benefit for any month after August 1958 
and to any other monthly benefit payable under the provisions of title 
II of the Act (see subpart D of this part) for the same month, such 
other benefit for the month, after any reduction under section 202(q) of 
the Act because of entitlement to such benefit for months before 
retirement age and any reduction under section 203(a) of the Act, is 
reduced (but not below zero) by an amount equal to such old-age 
insurance benefit (after reduction under section 202(q) of the Act) or 
such disability insurance benefit, as the case may be.
    (b) Entitlement to widow's or widower's benefit and other monthly 
benefit. If an individual is entitled for any month after August 1965 to 
a widow's or widower's insurance benefit under the provisions of section 
202 (e)(4) or (f)(5) of the Act and to any other monthly benefit payable 
under the provisions of title II of the Act (see subpart D) for the same 
month, except an old-age insurance benefit, such other insurance benefit 
for that month, after any reduction under paragraph (a) of this section, 
any reduction for age under section 202(q) of the Act, and any reduction 
under the provisions described in section 203(a) of the Act, shall be 
reduced, but not below zero, by an

[[Page 137]]

amount equal to such widow's or widower's insurance benefit after any 
reduction or reductions under paragraph (a) of this section or section 
203(a) of the Act.
    (c) Entitlement to old-age insurance benefit and disability 
insurance benefit. Any individual who is entitled for any month after 
August 1965 to both an old-age insurance benefit and a disability 
insurance benefit shall be entitled to only the larger of such benefits 
for such month, except that where the individual so elects, he or she 
shall instead be entitled to only the smaller of such benefits for such 
month. Only a person defined in Sec. 404.612 (a), (c), or (d) may make 
the above described election.
    (d) Child's insurance benefits. A child may, for any month, be 
simultaneously entitled to a child's insurance benefit on more than one 
individual's earnings if all the conditions for entitlement described in 
Sec. 404.350 are met with respect to each claim. Where a child is 
simultaneously entitled to child's insurance benefits on more than one 
earnings record, the general rule is that the child will be paid an 
amount which is based on the record having the highest primary insurance 
amount. However, the child will be paid a higher amount which is based 
on the earnings record having a lower primary insurance amount if no 
other beneficiary entitled on any record would receive a lower benefit 
because the child is paid on the record with the lower primary insurance 
amount. (See Sec. 404.353(b).)
    (e) Entitlement to more than one benefit where not all benefits are 
child's insurance benefits and no benefit is an old-age or disability 
insurance benefit. If an individual (other than an individual to whom 
section 202 (e)(4) or (f)(5) of the Act applies) is entitled for any 
month to more than one monthly benefit payable under the provisions of 
this subpart, none of which is an old-age or disability insurance 
benefit and all of which are not child's insurance benefits, only the 
greater of the monthly benefits to which he would (but for the 
provisions of this paragraph) otherwise be entitled is payable for such 
month. For months after August 1965, an individual who is entitled for 
any month to more than one widow's or widower's insurance benefit to 
which section 202 (e)(4) or (f)(5) of the Act applies is entitled to 
only one such benefit for such month, such benefit to be the largest of 
such benefits.

[32 FR 19159, Dec. 20, 1967, as amended at 51 FR 12606, Apr. 14, 1986; 
54 FR 5603, Feb. 6, 1989]



Sec. 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.

    (a) When reduction required. Under section 224 of the Act, a 
disability insurance benefit to which an individual is entitled under 
section 223 of the Act for a month (and any monthly benefit for the same 
month payable to others under section 202 on the basis of the same 
earnings record) is reduced (except as provided in paragraph (b) of this 
section) by an amount determined under paragraph (c) of this section if:
    (1) The individual first became entitled to disability insurance 
benefits after 1965 but before September 1981 based on a period of 
disability that began after June 1, 1965, and before March 1981, and
    (i) The individual entitled to the disability insurance benefit is 
also entitled to periodic benefits under a workers' compensation law or 
plan of the United States or a State for that month for a total or 
partial disability (whether or not permanent), and
    (ii) The Secretary has, in a month before that month, received a 
notice of the entitlement, and
    (iii) The individual has not attained age 62, or
    (2) The individual first became entitled to disability insurance 
benefits after August 1981 based on a disability that began after 
February 1981, and
    (i) The individual entitled to the disability insurance benefit is 
also, for that month, concurrently entitled to a periodic benefit 
(including workers' compensation or any other payments based on a work 
relationship) on account of a total or partial disability (whether or 
not permanent) under a law or plan of the United States, a State, a 
political subdivision, or an instrumentality of two or more of these 
entities, and

[[Page 138]]

    (ii) The individual has not attained age 65.
    (b) When reduction not made. (1) The reduction of a benefit 
otherwise required by paragraph (a)(1) of this section is not made if 
the workers' compensation law or plan under which the periodic benefit 
is payable provides for the reduction of such periodic benefit when 
anyone is entitled to a benefit under title II of the Act on the basis 
of the earnings record of an individual entitled to a disability 
insurance benefit under section 223 of the Act.
    (2) The reduction of a benefit otherwise required by paragraph 
(a)(2) of this section is not to be made if:
    (i) The law or plan under which the periodic public disability 
benefit is payable provides for the reduction of that benefit when 
anyone is entitled to a benefit under title II of the Act on the basis 
of the earnings record of an individual entitled to a disability 
insurance benefit under section 223 of the Act and that law or plan so 
provided on February 18, 1981. (The reduction required by paragraph 
(a)(2) of this section will not be affected by public disability 
reduction provisions not actually in effect on this date or by changes 
made after February 18, 1981, to provisions that were in effect on this 
date providing for the reduction of benefits previously not subject to a 
reduction); or
    (ii) The benefit is a Veterans Administration benefit, a public 
disability benefit (except workers' compensation) payable to a public 
employee based on employment covered under Social Security, a public 
benefit based on need, or a wholly private pension or private insurance 
benefit.
    (c) Amount of reduction--(1) General. The total of benefits payable 
for a month under sections 223 and 202 of the Act to which paragraph (a) 
of this section applies is reduced monthly (but not below zero) by the 
amount by which the sum of the monthly disability insurance benefits 
payable on the disabled individual's earnings record and the other 
public disability benefits payable for that month exceeds the higher of:
    (i) Eighty percent of his average current earnings, as defined in 
paragraph (c)(3) of this section, or
    (ii) The total of such individual's disability insurance benefit for 
such month and all other benefits payable for such month based on such 
individual's earnings record, prior to reduction under this section.
    (2) Limitation on reduction. In no case may the total of monthly 
benefits payable for a month to the disabled worker and to the persons 
entitled to benefits for such month on his earnings record be less than:
    (i) The total of the benefits payable (after reduction under 
paragraph (a) of this section) to such beneficiaries for the first month 
for which reduction under this section is made, and
    (ii) Any increase in such benefits which is made effective for 
months after the first month for which reduction under this section is 
made.
    (3) Average current earnings defined. (i) Beginning January 1, 1979, 
for purposes of this section, an individual's average current earnings 
is the largest of either paragraph (c)(3)(i) (a), (b) or (c) of this 
section (after reducing the amount to the next lower multiple of $1 when 
the amount is not a multiple of $1):
    (A) The average monthly wage (determined under section 215(b) of the 
Act as in effect prior to January 1979) used for purposes of computing 
the individual's disability insurance benefit under section 223 of the 
Act;
    (B) One-sixtieth of the total of the individual's wages and earnings 
from self-employment, without the limitations under sections 209(a) and 
211(b)(1) of the Act (see paragraph (c)(3)(ii) of this section), for the 
5 consecutive calendar years after 1950 for which the wages and earnings 
from self-employment were highest; or
    (C) One-twelfth of the total of the individual's wages and earnings 
from self-employment, without the limitations under sections 209(a) and 
211(b)(1) of the Act (see paragraph (c)(3)(ii) of this section), for the 
calendar year in which the individual had the highest wages and earnings 
from self-employment during the period consisting of the calendar year 
in which the individual became disabled and the 5 years immediately 
preceding that year. Any amount so computed which is not a multiple of 
$1 is reduced to the next lower multiple of $1.

[[Page 139]]

    (ii) Method of determining calendar year earnings in excess of the 
limitations under sections 209(a) and 211(b)(1) of the Act. For the 
purposes of paragraph (c)(3)(i) of this section, the extent by which the 
wages or earnings from self-employment of an individual exceed the 
maximum amount of earnings creditable under sections 209(a) and 
211(b)(1) of the Act in any calendar year after 1950 and before 1978 
will ordinarily be estimated on the basis of the earnings information 
available in the records of Administration. (See subpart I of this 
part.) If an individual provides satisfactory evidence of his actual 
earnings in any year, the extent, if any, by which his earnings exceed 
the limitations under sections 209(a) and 211(b)(1) of the Act shall be 
determined by the use of such evidence instead of by the use of 
estimates.
    (4) Reentitlement to disability insurance benefits. If an 
individual's entitlement to disability insurance benefits terminates and 
such individual again becomes entitled to disability insurance benefits, 
the amount of the reduction is again computed based on the figures 
specified in this paragraph (c) applicable to the subsequent 
entitlement.
    (5) Computing disability insurance benefits. When reduction is 
required, the total monthly Social Security disability insurance 
benefits payable after reduction can be more easily computed by 
subtracting the monthly amount of the other public disability benefit 
from the higher of paragraph (c)(1) (i) or (ii). This is the method 
employed in the examples used in this section.
    (d) Items not counted for reduction. Amounts paid or incurred, or to 
be incurred, by the individual for medical, legal, or related expenses 
in connection with the claim for public disability payments (see 
Sec. 404.408 (a) and (b)) or the injury or occupational disease on which 
the public disability award or settlement agreement is based, are 
excluded in computing the reduction under paragraph (a) of this section 
to the extent they are consonant with the applicable Federal, State, or 
local law or plan and reflect either the actual amount of expenses 
already incurred or a reasonable estimate, given the circumstances in 
the individual's case, of future expenses. Any expenses not established 
by evidence required by the Administration or not reflecting a 
reasonable estimate of the individual's actual future expenses will not 
be excluded. These medical, legal, or related expenses may be evidenced 
by the public disability award, compromise agreement, a court order, or 
by other evidence as the Administration may require. This other evidence 
may consist of:
    (1) A detailed statement by the individual's attorney, physician, or 
the employer's insurance carrier; or
    (2) Bills, receipts, or canceled checks; or
    (3) Other clear and convincing evidence indicating the amount of 
expenses; or
    (4) Any combination of the foregoing evidence from which the amount 
of expenses may be determinable.
    (e) Certification by individual concerning eligibility for public 
disability benefits. Where it appears that an individual may be eligible 
for a public disability benefit which would give rise to a reduction 
under paragraph (a) of this section, the individual may be required, as 
a condition of certification for payment of any benefit under section 
223 of the Act to any individual for any month, and of any benefit under 
section 202 of the Act for any month based on such individual's earnings 
record, to furnish evidence as requested by the Administration and to 
certify as to:
    (1) Whether he or she has filed or intends to file any claim for a 
public disability benefit, and
    (2) If he or she has so filed, whether there has been a decision on 
the claim. The Secretary may rely, in the absence of evidence to the 
contrary, upon a certification that he or she has not filed and does not 
intend to file such a claim, or that he or she has filed and no decision 
has been made, in certifying any benefit for payment pursuant to section 
205(i) of the Act.
    (f) Verification of eligibility or entitlement to a public 
disability benefit under paragraph (a). Section 224 of the Act requires 
the head of any Federal agency to furnish the Secretary information from 
the Federal agency's records which is needed to determine the reduction 
amount, if any, or verify other information to carry out the provisions

[[Page 140]]

of this section. The Secretary is authorized to enter into agreements 
with States, political subdivisions, and other organizations that 
administer a law or plan of public disability benefits in order to 
obtain information that may be required to carry out the provisions of 
this section.
    (g) Public disability benefit payable on other than a monthly basis. 
Where public disability benefits are paid periodically but not monthly, 
or in a lump sum as a commutation of or a substitute for periodic 
benefits, such as a compromise and release settlement, the reduction 
under this section is made at the time or times and in the amounts that 
the Administration determines will approximate as nearly as practicable 
the reduction required under paragraph (a) of this section.
    (h) Priorities. (1) For an explanation of when a reduction is made 
under this section where other reductions, deductions, etc., are 
involved, see Sec. 404.402.
    (2) Whenever a reduction in the total of benefits for any month 
based on an individual's earnings record is made under paragraph (a) of 
this section, each benefit, except the disability insurance benefit, is 
first proportionately decreased. Any excess reduction over the sum of 
all the benefits, other than the disability insurance benefit, is then 
applied to the disability insurance benefit.***EXAMPLES***

                                Examples:

    Example 1:  Effective September 1981, Harold is entitled to a 
monthly disability primary insurance amount of $507.90 and a monthly 
public disability benefit of $410.00 from the State. Eighty percent of 
Harold's average current earnings is $800.00. Because this amount 
($800.00) is higher than Harold's disability insurance benefit 
($507.90), we subtract Harold's monthly public disability benefit 
($410.00) from eighty percent of his average current earnings ($800.00). 
This leaves Harold a reduced monthly disability benefit of $390.00.
    Example 2:  In September 1981, Tom is entitled to a monthly 
disability primary insurance amount of $559.30. His wife and two 
children are also entitled to monthly benefits of $93.20 each. The total 
family benefit is $838.90. Tom is also receiving a monthly workers' 
compensation benefit of $500.00 from the State. Eighty percent of Tom's 
average current earnings is $820.10. Because the total family benefit 
($838.90) is higher than 80 percent of the average current earnings 
($820.10), we subtract the monthly workers' compensation benefit 
($500.00) from the total family benefit ($838.90), leaving $338.90 
payable. This means the monthly benefits to Tom's wife and children are 
reduced to zero, and Tom's monthly disability benefit is reduced to 
$338.90.
    (i) Effect of changes in family composition. The addition or 
subtraction in the number of beneficiaries in a family may cause the 
family benefit to become, or cease to be, the applicable limit for 
reduction purposes under this section. When the family composition 
changes, the amount of the reduction is recalculated as though the new 
number of beneficiaries were entitled for the first month the reduction 
was imposed. If the applicable limit both before and after the change is 
80 percent of the average current earnings and the limitation on maximum 
family benefits is in effect both before and after the change, the 
amount payable remains the same and is simply redistributed among the 
beneficiaries entitled on the same earnings record.

                                Examples:

    Example 1:  Frank is receiving $500.00 a month under the provisions 
of a State workers' compensation law. He had a prior period of 
disability which terminated in June 1978. In September 1981, Frank 
applies for a second period of disability and is awarded monthly 
disability insurance benefits with a primary insurance amount of 
$370.20. His child, Doug, qualifies for benefits of $135.10 a month on 
Frank's earnings record. The total family benefits is $505.30 monthly.
    Frank's average monthly wage (as used to compute the primary 
insurance amount) is $400.00; eighty percent of his average current 
earnings (computed by using the 5 consecutive years in which his 
earnings were highest) is $428.80 (80% of $536.00); eighty percent of 
Frank's average current earnings (computed by using the 1 calendar year 
in which his earnings were highest) is $509.60 (80% of $637.00). The 
highest value for 80 percent of average current earnings is therefore 
$509.60 (80%). Since this is higher than the total family benefit 
($505.30), the $509.60 is the applicable limit in determining the amount 
of the reduction (or offset). The amount payable after the reduction 
is--

                                                                        
                                                                        
                                                                        
80% of Frank's average current earnings......................    $509.60
Frank's monthly workers' compensation benefit................    -500.00
                                                              ----------
    Monthly benefit payable to Frank.........................       9.60
                                                                        

    No monthly benefits are payable to Doug because the reduction is 
applied to Doug's benefit first. In December 1981, another

[[Page 141]]

child, Mike, becomes entitled on Frank's earnings record. The monthly 
benefit to each child before reduction is now $109.10, the amount 
payable when there are two beneficiaries in addition to the wage earner. 
Thus, the total family benefit becomes $588.40. Because this is now 
higher than $509.60 (80% of Frank's average current earnings), $588.40 
becomes the applicable limit in determining the amount of reduction. The 
amount payable after the increase in the total family benefit is--

                                                                        
                                                                        
                                                                        
The new total family benefit.................................    $588.40
Frank's monthly workers' compensation rate...................    -500.00
                                                              ----------
    Monthly benefit payable to Frank.........................      88.40
                                                                        


No monthly benefits are payable to either child because the reduction 
(or offset) is applied to the family benefits first.
    Example 2:  Jack became entitled to disability insurance benefits in 
December 1973 (12/73), with a primary insurance amount (PIA) of $220.40. 
He was also receiving a workers' compensation benefit. An offset was 
imposed against the disability insurance benefit. By June 1977 (6/77), 
Jack's PIA had increased to $298.00 because of several statutory benefit 
increases. In December 1977 (12/77), his wife, Helen, attained age 65 
and filed for unreduced wife's benefits. (She was not entitled to a 
benefit on her own earnings record.) This benefit was terminated in May 
1978 (5/78), at her death. Helen's benefit was computed back to 12/73 as 
though she were entitled in the first month that offset was imposed 
against Jack. Since there were no other beneficiaries entitled and 
Helen's entire monthly benefit amount is subject to offset, the benefit 
payable to her for 12/77 through April 1978 (4/78), would be $38.80. 
This gives Helen the protected statutory benefit increases since 12/73. 
The table below shows how Helen's benefit was computed beginning with 
the first month offset was imposed.

------------------------------------------------------------------------
                                                     Helen's            
                                          Jack's     benefit    Helen's 
Month of entitlement/statutory increase     PIA     prior to   statutory
                                                     offset     increase
------------------------------------------------------------------------
December 1973..........................   $220.40     $110.20  .........
March 1974.............................    236.00      118.00      $7.80
June 1974..............................    244.80      122.40      +4.40
June 1975..............................    264.40      132.20      +9.80
June 1976..............................    281.40      140.70      +8.50
June 1977..............................    298.00      149.00      +8.30
                                        --------------------------------
December 1977 through April 1978 \1\...  ........  ..........      38.80
------------------------------------------------------------------------
\1\ Monthly benefit payable to Helen.                                   

    (j) Effect of social security disability insurance benefit 
increases. Any increase in benefits due to a recomputation or a 
statutory increase in benefit rates is not subject to the reduction for 
public disability benefits under paragraph (a) and does not change the 
amount to be deducted from the family benefit. The increase is simply 
added to what amount, if any, is payable. If a new beneficiary becomes 
entitled to monthly benefits on the same earnings record after the 
increase, the amount of the reduction is redistributed among the new 
beneficiaries entitled under section 202 of the Act and deducted from 
their current benefit rate.
    Example:  In March 1981, Chuck became entitled to disability 
insurance benefits with a primary insurance amount of $362.40 a month. 
He has a wife and two children who are each entitled to a monthly 
benefit of $60.40. Chuck is receiving monthly disability compensation 
from a worker's compensation plan of $410.00. Eighty percent of his 
average current earnings is $800.00. Because this is higher than the 
total family benefit ($543.60), $800.00 is the applicable limit in 
computing the amount of reduction. The amount of monthly benefits 
payable after the reduction is--

                                                                        
                                                                        
                                                                        
Applicable limit.............................................    $800.00
Chuck's monthly disability compensation......................    -410.00
                                                              ----------
Total amount payable to Chuck and the family after reduction.    $390.00
Amount payable to Chuck......................................    -362.40
                                                              ----------
Total amount payable to the family...........................     $27.60
$9.20 payable to each family member equals...................     $27.60
                                                              ----------
                                                                   3    
                                                                        

    In June 1981, the disability benefit rates were raised to reflect an 
increase in the cost-of-living. Chuck is now entitled to $403.00 a month 
and each family member is entitled to $67.20 a month (an increase of 
$6.80 to each family member). The monthly amounts payable after the 
cost-of-living increase are now $403.00 to Chuck and $16.00 to each 
family member ($9.20 plus the $6.80 increase).
    In September 1981, another child becomes entitled to benefits based 
on Chuck's earnings record. The monthly amount payable to the family 
(excluding Chuck) must now be divided by 4:

                                                                        
                                                                        
                                                                        
$6.90 payable to each family member equals...................     $27.60
                                                              ----------
                                                                   4    
                                                                        
                                                                        

    The June 1981 cost-of-living increase is added to determine the 
amount payable. Chuck continues to receive $403.00 monthly. Each family 
member receives a cost-of-living increase of $5.10. Thus, the amount 
payable to each is $12.00 in September 1981 ($6.90 plus the $5.10 
increase). (See Example 2 under (i).)
    (k) Effect of changes in the amount of the public disability 
benefit. Any change in the amount of the public disability

[[Page 142]]

benefit received will result in a recalculation of the reduction under 
paragraph (a) and, potentially, an adjustment in the amount of such 
reduction. If the reduction is made under paragraph (a)(1) of this 
section, any increased reduction will be imposed effective with the 
month after the month the Secretary received notice of the increase in 
the public disability benefit (it should be noted that only workers' 
compensation can cause this reduction). Adjustments due to a decrease in 
the amount of the public disability benefit will be effective with the 
actual date the decreased amount was effective. If the reduction is made 
under paragraph (a)(2) of this section, any increase or decrease in the 
reduction will be imposed effective with the actual date of entitlement 
to the new amount of the public disability benefit.
    Example:  In September 1981, based on a disability which began March 
12, 1981, Theresa became entitled to Social Security disability 
insurance benefits with a primary insurance amount of $445.70 a month. 
She had previously been entitled to Social Security disability insurance 
benefits from March 1967 through July 1969. She is receiving a temporary 
total workers' compensation payment of $227.50 a month. Eighty percent 
of her average current earnings is $610.50. The amount of monthly 
disability insurance benefit payable after reduction is--

                                                                        
                                                                        
                                                                        
80 percent of Theresa's average current earnings.............    $610.50
Theresa's monthly workers' compensation payment..............    -227.50
                                                              ----------
  Total amount payable to Theresa after reduction............     383.00
                                                                        

    On November 15, 1981, the Secretary was notified that Theresa's 
workers' compensation rate was increased to $303.30 a month effective 
October 1, 1981. This increase reflected a cost-of-living adjustment 
granted to all workers' compensation recipients in her State. The 
reduction to her monthly disability insurance benefit is recomputed to 
take this increase into account--

                                                                        
                                                                        
                                                                        
80 percent of Theresa's average current earnings.............    $610.50
Theresa's monthly workers' compensation payment beginning               
 October 1, 1981.............................................    -303.30
                                                              ----------
    Total new amount payable to Theresa beginning October               
   1981 after recalculation of the reduction.................    $307.20
                                                                        

    Effective January, 1, 1982, Theresa's workers' compensation payment 
is decreased to $280.10 a month when she begins to receive a permanent 
partial payment. The reduction to her monthly disability insurance 
benefit is again recalculated to reflect her decreased workers' 
compensation amount--

                                                                        
                                                                        
                                                                        
80 percent of Theresa's average current earnings.............    $610.50
Theresa's monthly workers' compensation payment beginning               
 January 1, 1982.............................................    -280.10
                                                              ----------
    Total new amount payable to Theresa beginning January               
   1982 after recalculation of the reduction.................    $330.40
                                                                        

    If, in the above example, Theresa had become entitled to disability 
insurance benefits in August 1981, the increased reduction to her 
benefit, due to the October 1, 1981 increase in her workers' 
compensation payment, would have been imposed beginning with December 
1981, the month after the month she notified the Social Security 
Administration of the increase. The later decrease in her workers' 
compensation payment would still affect her disability insurance benefit 
beginning with January 1982.
    (l) Redetermination of benefits--(1) General. In the second calendar 
year after the year in which reduction under this section in the total 
of an individual's benefits under section 223 of the Act and any 
benefits under section 202 of the Act based on his or her wages and 
self-employment income is first required (in a continuous period of 
months), and in each third year thereafter, the amount of those benefits 
which are still subject to reduction under this section are 
redetermined, provided this redetermination does not result in any 
decrease in the total amount of benefits payable under title II of the 
Act on the basis of the workers' wages and self-employment income. The 
redetermined benefit is effective with the January following the year in 
which the redetermination is made.
    (2) Average current earnings. In making the redetermination required 
by paragraph (l)(1) of this section, the individual's average current 
earnings (as defined in paragraph (c)(3) of this section) is deemed to 
be the product of his average current earnings as initially determined 
under paragraph (c)(3) of this section and:
    (i) The ratio of the average of the total wages (as defined in 
Sec. 404.1049) of all persons for whom wages were reported to the 
Secretary of the Treasury or his delegate for the calendar year before 
the year in which the redetermination is made, to the average of the 
total wages of all person reported to the Secretary of the Treasury or 
his

[[Page 143]]

delegate for calendar year 1977 or, if later, the calendar year before 
the year in which the reduction was first computed (but not counting any 
reduction made in benefits for a previous period of disability); and
    (ii) In any case in which the reduction was first computed before 
1978, the ratio of the average of the taxable wages reported to the 
Secretary of Health and Human Services for the first calendar quarter of 
1977 to the average of the taxable wages reported to the Secretary of 
Health and Human Services for the first calendar quarter of the calendar 
year before the year in which the reduction was first computed (but not 
counting any reduction made in benefits for a previous period of 
disability). Any amount determined under the preceding two sentences 
which is not a multiple of $1 is reduced to the next lower multiple of 
$1.
    (3) Effect of redetermination. Where the applicable limit on total 
benefits previously used was 80 percent of the average current earnings, 
a redetermination under this paragraph may cause an increase in the 
amount of benefits payable. Also, where the limit previously used was 
the total family benefit, the redetermination may cause the average 
current earnings to exceed the total family benefit and thus become the 
new applicable limit. If for some other reason (such as a statutory 
increase or recomputation) the benefit has already been increased to a 
level which equals or exceeds the benefit resulting from a 
redetermination under this paragraph, no additional increase is made. A 
redetermination is designed to bring benefits into line with current 
wage levels when no other change in payments has done so.
    Example:  In October 1978, Alice became entitled to disability 
insurance benefits with a primary insurance amount of $505.10. Her two 
children were also entitled to monthly benefits of $189.40 each. Alice 
was also entitled to monthly disability compensation benefits of $667.30 
from the State. Eighty percent of Alice's average current earnings is 
$1340.80, and that amount is the applicable limit. The amount of monthly 
benefits payable after the reduction is--

                                                                        
                                                                        
                                                                        
Applicable limit.............................................  $1,340.80
Alice's State disability compensation benefit................    -667.30
                                                              ----------
Total benefits payable to Alice and both children after                 
 reduction...................................................    $673.50
Alice's disability insurance benefit.........................    -505.10
Payable to the children......................................    $168.40
$84.20 payable to each child after reduction equals..........    $168.40
                                                              ----------
                                                                   2    
                                                                        

    In June 1979 and June 1980, cost-of-living increases in Social 
Security benefits raise Alice's benefit by $50.10 (to $555.20) and 
$79.40 (to $634.60) respectively. The children's benefits (before 
reduction) are each raised by $18.80 (to $208.20) and $29.80 (to 
$238.00). These increases in Social Security benefits are not subject to 
the reduction (i.e., offset).
    In 1980, Alice's average current earnings are redetermined as 
required by law. The offset is recalculated, and if the amount payable 
to the family is higher than the current amount payable to the family, 
that higher amount becomes payable the following January (i.e., January 
1981). The current amount payable to the family after the reduction is 
recalculated--

                                                                        
                                                                        
                                                                        
Alice's 1978 benefit after reduction.........................    $505.10
Alice's cost-of-living increase in June 1979.................     +50.10
Alice's cost-of-living increase in June 1980.................     +79.40
One child's 1978 benefit after reduction.....................     +84.20
That child's cost-of-living increase in June 1979............     +18.70
That child's cost-of-living increase in June 1980............     +29.70
The other child's 1978 benefit after reduction...............     +84.20
The other child's cost-of-living increase in June 1979.......     +18.70
The other child's cost-of-living increase in June 1980.......     +29.70
                                                              ----------
Total amount payable to the family after reduction in January           
 1981........................................................     899.80
                                                                        

    The amount payable to the family after reduction is then 
recalculated using the redetermined average current earnings--

                                                                        
                                                                        
                                                                        
Average current earnings before redetermination..............  $1,676.00
Redetermination ratio effective for January 1981.............    x 1.174
                                                              ----------
Redetermined average current earnings........................  $1,967.00
                                                                   x 80%
                                                              ----------
80% of the redetermined average current earnings.............  $1,573.60
Alice's State disability compensation benefit................    -667.30
                                                              ----------
Total benefits payable to the family after offset............    $906.30
                                                                        

    We then compare the total amount currently being paid to the family 
($899.80) to the total amount payable after the redetermination 
($906.30). In this example, the redetermination yields a higher amount 
and, therefore, becomes payable the following January (i.e., January 
1981). Additional computations are required to determine the amount that 
will be paid to each family member--

Total benefits payable to the family using the redetermined             
 average current earnings....................................    $906.30
Total cost-of-living increases to both children..............     -96.80
                                                              ----------
Balance payable..............................................     809.50

[[Page 144]]

                                                                        
Alice's current benefit amount before reduction..............    -634.60
                                                              ----------
Payable to the children......................................     174.90
Total cost-of-living increases to both children..............     +96.80
                                                              ----------
Total payable to children after reduction....................     271.70
$135.90 (rounded from $135.85) payable to each child equals..    $271.70
                                                              ----------
                                                                   2    
                                                                        

[32 FR 19159, Dec. 20, 1967; 33 FR 3060, Feb. 16, 1968, as amended at 37 
FR 3425, Feb. 16, 1972; 48 FR 37017, Aug. 16, 1983; 48 FR 38814, Aug. 
26, 1983]



Sec. 404.408a  Reduction where spouse is receiving a Government pension.

    (a) When reduction is required. Unless you meet one of the 
exceptions in paragraph (b) of this section, your monthly Social 
Security benefits as a wife, husband, widow, widower, mother, or father 
will be reduced each month you are receiving a monthly pension from a 
Federal, State, or local government agency (Government pension) for 
which you were employed in work not covered by Social Security on the 
last day of such employment. Your monthly Social Security benefit as a 
spouse will always be reduced because of your Government pension even if 
you afterwards return to work for a government agency and that work is 
covered by Social Security. For purposes of this section, Federal 
Government employees are not considered to be covered by Social Security 
if they are covered for Medicare but are not otherwise covered by Social 
Security. If the government pension is not paid monthly or is paid in a 
lump-sum, we will determine how much the pension would be if it were 
paid monthly and then reduce the monthly Social Security benefit 
accordingly. The number of years covered by a lump-sum payment, and thus 
the period when the Social Security benefit will be reduced, will 
generally be clear from the pension plan. If one of the alternatives to 
a lump-sum payment is a life annuity, and the amount of the monthly 
benefit for the life annuity can be determined, the reduction will be 
based on that monthly benefit amount. Where the period or the equivalent 
monthly pension benefit is not clear it may be necessary for us to 
determine the reduction period on an individual basis.
    (b) Exceptions. The reduction does not apply:
    (1) If you are receiving a Government pension based on employment 
for an interstate instrumentality.
    (2) If you received or are eligible to receive a Government pension 
for one or more months in the period December 1977 through November 1982 
and you meet the requirements for Social Security benefits that were 
applied in January 1977, even though you don't claim benefits, and you 
don't actually meet the requirements for receiving benefits until a 
later month. The January 1977 requirements are, for a man, a one-half 
support test (see paragraph (c) of this section), and, for a woman 
claiming benefits as a divorced spouse, marriage for at least 20 years 
to the insured worker. You are considered eligible for a Government 
pension for any month in which you meet all the requirements for payment 
except that you are working or have not applied.
    (3) If you were receiving or were eligible (as defined in paragraph 
(b)(2) of this section) to receive a Government pension for one or more 
months before July 1983, and you meet the dependency test of one-half 
support that was applied to claimants for husband's and widower's 
benefits in 1977, even though you don't claim benefits, and you don't 
actually meet the requirements for receiving benefits until a later 
month. If you meet the exception in this paragraph but you do not meet 
the exception in paragraph (b)(2), December 1982 is the earliest month 
for which the reduction will not affect your benefits.
    (4) If you would have been eligible for a pension in a given month 
except for a requirement which delayed eligibility for such pension 
until the month following the month in which all other requirements were 
met, we will consider you to be eligible in that given month for the 
purpose of meeting one of the exceptions in paragraphs (b) (2) and (3) 
of this section. If you meet an exception solely because of this 
provision, your benefits will be unreduced for months after November 
1984 only.
    (5) If, with respect to monthly benefits payable for months after 
December 1994, you are receiving a Government pension based wholly upon 
service as a member of a uniformed service, regardless of whether on 
active or inactive

[[Page 145]]

duty and whether covered by social security. However, if the earnings on 
the last day of employment as a military reservist were not covered, 
January 1995 is the earliest month for which the reduction will not 
affect your benefits.
    (c) The one-half support test. For a man to meet the January 1977 
requirement as provided in the exception in paragraph (b)(2) and for a 
man or a woman to meet the exception in paragraph (b)(3) of this 
section, he or she must meet a one-half support test. One-half support 
is defined in Sec. 404.366 of this part. One-half support must be met at 
one of the following times:
    (1) If the insured person had a period of disability which did not 
end before he or she became entitled to old-age or disability insurance 
benefits, or died, you must have been receiving at least one-half 
support from the insured either--
    (i) At the beginning of his or her period of disability;
    (ii) At the time he or she became entitled to old-age or disability 
insurance benefits; or
    (iii) If deceased, at the time of his or her death.
    (2) If the insured did not have a period of disability at the time 
of his or her entitlement or death, you must have been receiving at 
least one-half support from the insured either--
    (i) At the time he or she became entitled to old-age insurance 
benefits; or
    (ii) If deceased, at the time of his or her death.
    (d) Amount and priority of reduction. (1) If you became eligible for 
a Government pension after June 1983, we will reduce (to zero, if 
necessary) your monthly Social Security benefits as a spouse by two-
thirds the amount of your monthly pension. If the reduction is not a 
multiple of 10 cents, we will round it to the next higher multiple of 10 
cents.
    (2) If you became eligible for a Government pension before July 1983 
and do not meet one of the exceptions in paragraph (b) of this section, 
we will reduce (to zero, if necessary) your monthly Social Security 
benefits as a spouse by the full amount of your pension for months 
before December 1984 and by two-thirds the amount of your monthly 
pension for months after November 1984. If the reduction is not a 
multiple of 10 cents, we will round it to the next higher multiple of 10 
cents.
    (3) Your benefit as a spouse will be reduced, if necessary, for age 
and for simultaneous entitlement to other Social Security benefits 
before it is reduced because you are receiving a Government pension. In 
addition, this reduction follows the order of priority as stated in 
Sec. 404.402(b).
    (4) If the monthly benefit payable to you after the required 
reduction(s) is not a multiple of $1.00, we will reduce it to the next 
lower multiple of $1.00 as required by Sec. 404.304(f).
    (e) When effective. This reduction was put into the Social Security 
Act by the Social Security Amendments of 1977. It only applies to 
applications for benefits filed in or after December 1977 and only to 
benefits for December 1977 and later.

[49 FR 41245, Oct. 22, 1984; 50 FR 20902, May 21, 1985, as amended at 51 
FR 23052, June 25, 1986; 60 FR 56513, Nov. 9, 1995]



Sec. 404.408b  Reduction of retroactive monthly social security benefits where supplemental security income (SSI) payments were received for the same period.

    (a) When reduction is required. We will reduce your retroactive 
social security benefits if--
    (1) You are entitled to monthly social security benefits for a month 
or months before the first month in which those benefits are paid; and
    (2) SSI payments (including federally administered State 
supplementary payments) which were made to you for the same month or 
months would have been reduced or not made if your social security 
benefits had been paid when regularly due instead of retroactively.
    (b) Amount of reduction. Your retroactive monthly social security 
benefits will be reduced by the amount of the SSI payments (including 
federally administered State supplementary payments) that would not have 
been paid to you, if you had received your monthly social security 
benefits when they were regularly due instead of retroactively.
    (c) Benefits subject to reduction. The reduction described in this 
section applies only to monthly social security

[[Page 146]]

benefits. Social security benefits which we pay to you for any month 
after you have begun receiving recurring monthly social security 
benefits, and for which you did not have to file a new application, are 
not subject to reduction. The lump-sum death payment, which is not a 
monthly benefit, is not subject to reduction.
    (d) Refiguring the amount of the reduction. We will refigure the 
amount of the reduction if there are subsequent changes affecting your 
claim which relate to the reduction period described in paragraph (a) of 
this section. Refiguring is generally required where there is a change 
in your month of entitlement or the amount of your social security 
benefits or SSI payments (including federally administered State 
supplementary payments) for the reduction period.
    (e) Reimbursement of reduced retroactive monthly social security 
benefits. The amount of the reduction will be--
    (1) First used to reimburse the States for the amount of any 
federally administered State supplementary payments that would not have 
been made to you if the monthly social security benefits had been paid 
when regularly due instead of retroactively; and
    (2) The remainder, if any, shall be covered into the general fund of 
the U.S. Treasury for the amount of SSI benefits that would not have 
been paid to you if the monthly social security benefits had been paid 
to you when regularly due instead of retroactively.

[47 FR 4988, Feb. 3, 1982]



Sec. 404.409  [Reserved]



Sec. 404.410  Reduction in benefits for age--general.

    An individual's old-age insurance benefit, wife's or husband's 
benefit or widow's or widower's benefit is reduced if he or she is 
entitled to the benefit for a month before the month he or she reaches 
retirement age. For purposes of this section and Secs. 404.411 through 
404.413, retirement age is age 65; except that for months prior to 
January 1973, retirement age for widows and widowers is age 62. However, 
in the case of an individual entitled to wife's or husband's benefits, 
there is no reduction in benefits for any month he or she has in his or 
her care a child of the insured individual on whose earnings record he 
or she is entitled if the child is entitled to child's insurance 
benefits. Similarly, in the case of an individual entitled to widow's or 
widower's benefits, such benefits will not be reduced below the amount 
an individual entitled to mother's or father's benefits would receive 
for any month he or she has in his or her care a child of the insured 
individual on whose earnings record he or she is entitled if the child 
is entitled to child's benefits. Reductions in benefits are, subject to 
Secs. 404.411 through 404.413, made in the amounts described below:
    (a) In the case of old-age insurance benefits, the individual's 
primary insurance amount is reduced by \5/9\ of 1 percent multiplied by 
the number of months preceding the month in which he or she attains 
retirement age for which he or she is entitled to such benefits;
    (b) In the case of wife's or husband's benefits, the individual's 
benefit amount before any reduction (see Secs. 404.304 and 404.333) is 
reduced first (if necessary) for the family maximum under Sec. 404.403, 
and then further reduced by \25/36\ of 1 percent multiplied by the 
number of months preceding the month in which he or she attains 
retirement age for which he or she is entitled to such benefits (but not 
including any month in which such wife or husband has in his or her care 
a child of the insured individual on whose earnings record he or she is 
entitled if the child is entitled to child's benefits);
    (c)(1) In the case of widow's or widower's benefits, the 
individual's benefit amount (for months after December 1972, the amount 
equal to the insured person's primary insurance amount and for earlier 
months, the amounts described in Secs. 404.304 and 404.338), after any 
reduction for the family maximum under Sec. 404.403, is reduced or 
further reduced by \19/40\ of 1 percent multiplied by the number of 
months in the period beginning with the month of attainment of age 60 
and ending with the month immediately before the month of attainment of 
age 65, for which he or she is entitled to such benefits (but not 
including any month in which such widow or widower has a child of the 
insured individual in his or her care if

[[Page 147]]

the child is entitled to child's benefits). For months prior to January 
1973, the widow's or widower's benefit is reduced in the way described 
in the preceding sentence except that the percentage rate is \5/9\ of 1 
percent multiplied by the number of months from age 60 to 62 instead of 
\19/40\ of 1 percent multiplied by the number of months from age 60 to 
65.
    (2) For those widows and widowers receiving benefits based on 
disability and whose entitlement begins prior to their attaining age 60, 
their benefits are--
    (i) For months after December 1983, not subject to any reduction of 
their benefits in addition to that under paragraph (c)(1) of this 
section;
    (ii) For the period January 1, 1973-December 31, 1983, subject to a 
reduction under paragraph (c)(1) of this section and an additional 
reduction formula of \43/240\ of 1 percent multiplied by: (A) The 
benefit before any reduction for age and (B) the number of months of 
entitlement to such benefit in the period beginning with month of 
attainment of age 50 and ending with the month preceding month of 
attainment of age 60; and
    (iii) For months prior to January 1973, subject to the reduction 
formula described in paragraph (c)(2)(ii) of this section with, however, 
the percentage rate set at \43/198\ of 1 percent.
    (d) Benefits reduced under this section may be later adjusted to 
eliminate reduction for certain months of entitlement prior to 
retirement age as provided in Sec. 404.412. For special provisions on 
reducing benefits for months prior to retirement age involving 
entitlement to two or more benefits and for reducing widow's and 
widower's benefits on the earnings record of a deceased individual 
previously entitled to old-age insurance benefits, see Secs. 404.411 and 
404.338, respectively.

[49 FR 24116, June 12, 1984]



Sec. 404.411  Special reduction in benefits for age involving entitlement to two or more benefits.

    (a) General. (1) Except as specifically provided in this section, 
benefits of an individual entitled to more than one benefit will be 
reduced for months of entitlement before retirement age according to the 
provisions of Sec. 404.410. Such age reductions are made before any 
reduction under the provisions of Sec. 404.407.
    (2) If an individual was born after January 1, 1928 and becomes 
disabled after December 31, 1989, his or her disability insurance 
benefits are reduced in accordance with paragraph (b)(1) of this 
section. In other situations involving prior receipt of widow's or 
widower's insurance benefits, disability insurance benefits are reduced 
in accordance with paragraph (b)(2) of this section.
    (3) If an individual was born after January 1, 1928, his or her old-
age insurance benefits are reduced in accordance with Sec. 404.410(a). 
In other situations involving prior receipt of widow's or widower's 
insurance benefits, old-age insurance benefits are reduced in accordance 
with paragraph (c) of this section.
    (b) Reduction in disability insurance benefits after entitlement to 
old-age insurance benefits, widow's or widower's benefits. An 
individual's disability insurance benefits are reduced following 
entitlement to old-age insurance benefits, widow's or widower's 
insurance benefits (or following the month in which all conditions for 
entitlement to widow's or widower's insurance benefits are met except 
that the individual is entitled to an old-age insurance benefit which 
equals or exceeds the primary insurance amount on which the widow's or 
widower's insurance benefit is based) in accordance with the following 
provisions:
    (1) In the case of an individual entitled to disability insurance 
benefits for a month after the month in which he becomes entitled to an 
old-age insurance benefit which is reduced for age under Sec. 404.410, 
the disability insurance benefit is reduced by the amount by which the 
old-age insurance benefit would be reduced under Sec. 404.410 if he 
attained age 65 in the first month of his most recent period of 
entitlement to disability insurance benefits.
    (2) In the case of an individual who is first entitled to disability 
insurance benefits for a month in which or after which he or she attains 
age 62 and for which he or she is first entitled to a widow's or 
widower's insurance benefit

[[Page 148]]

(or would be so entitled except for entitlement to an equal or higher 
old-age insurance benefit as explained in the material preceding 
paragraph (b) of this section) before retirement age, the disability 
insurance benefits are reduced by the larger of:
    (i) The amount the disability insurance benefit would have been 
reduced under paragraph (b)(1) of this section; or
    (ii) The amount equal to the sum of the amount the widow's or 
widower's benefit would have been reduced under the provisions of 
Sec. 404.410 if retirement age were 62 (instead of 65) plus the amount 
by which the disability insurance benefit would have been reduced under 
paragraph (b)(1) of this section if the benefit were equal to the excess 
of such benefit over the amount of the widow's or widower's benefit 
(without consideration of this paragraph (b)(2)) of this section.
    (3) In the case of an individual who is first entitled to disability 
insurance benefits for a month before the month in which he or she 
attains age 62 and he or she is also entitled to a widow's or widower's 
insurance benefit (or would be so entitled except for entitlement to an 
equal or higher old-age insurance benefit as explained in the material 
preceding paragraph (b) of this section), the disability insurance 
benefit is reduced as if the widow or widower attained retirement age in 
the month immediately preceding the first month of his or her most 
recent period of entitlement to disability insurance benefits;
    (c) Reduction in old-age insurance benefits after entitlement to 
widow's or widower's insurance benefits. An individual's old-age 
insurance benefit is reduced if, in his or her first month of 
entitlement to that benefit, he or she is also entitled to a widow's or 
widower's insurance benefit to which he or she was first entitled for a 
month before attainment of retirement age or if, before attainment of 
retirement age, he or she met all conditions for entitlement to widow's 
or widower's benefits in or before the first month for which he or she 
was entitled to old-age insurance benefits except that the old-age 
insurance benefit equals or exceeds the primary insurance amount on 
which the widow's or widower's insurance benefit would be based. Under 
these circumstances, the old-age insurance benefit is reduced by the 
larger of the following:
    (1) The amount by which the old-age insurance benefit would be 
reduced under the regular age reduction provisions of Sec. 404.410; or
    (2) An amount equal to the sum of:
    (i) The amount by which the widow's or widower's insurance benefit 
would be reduced under Sec. 404.410 for months prior to age 62; and
    (ii) The amount by which the old-age insurance benefit would be 
reduced under Sec. 404.410 if it were equal to the excess of the 
individual's primary insurance amount over the widow's or widower's 
insurance benefit before any reduction for age (but after any reduction 
for the family maximum under Sec. 404.403).
    (d) Reduction in wife's or husband's insurance benefits when 
entitled to reduced old-age insurance benefits in the same month. A 
wife's or husband's insurance benefit to which a person is first 
entitled in or after the month of attainment of age 62 is reduced if, in 
his or her first month of entitlement to that benefit, he or she is also 
entitled to an old-age insurance benefit (but is not entitled to a 
disability insurance benefit) to which he or she was first entitled for 
a month before attainment of age 65. Under these circumstances, the 
wife's or husband's insurance benefit is reduced by the sum of:
    (1) The amount by which the old-age insurance benefit would be 
reduced under the provisions of Sec. 404.410; and
    (2) The amount by which the wife's or husband's insurance benefit 
would be reduced under the provisions of Sec. 404.410 if it were equal 
to the excess of such benefit (before any reduction for age but after 
reduction for the family maximum under Sec. 404.403) over the 
individual's own primary insurance amount.
    (e) Reduction in wife's, husband's, widow's or widower's insurance 
benefit because of entitlement to disability insurance benefits in the 
same month. A wife's, husband's, widow's, or widower's insurance benefit 
to which a person is first entitled in or after the month of attainment 
of age 62 (or in the case of

[[Page 149]]

widow's or widower's insurance benefits, age 50) is reduced if, in his 
or her first month of entitlement to that benefit, he or she is also 
entitled to a disability insurance benefit. Under these circumstances, 
the wife's, husband's, widow's, or widower's insurance benefit is 
reduced by the sum of:
    (1) The amount (if any) by which the disability insurance benefit is 
reduced under paragraph (b)(1) of this section, and
    (2) The amount by which the wife's, husband's, widow's, or widower's 
insurance benefit would be reduced under Sec. 404.410 if it were equal 
to the excess of such benefit (before any reduction for age but after 
reduction for the family maximum under Sec. 404.403) over the disability 
insurance benefit (before any reduction under paragraph (b) of this 
section).

[40 FR 30816, July 23, 1975, as amended at 55 FR 50551, Dec. 7, 1990]



Sec. 404.412  Adjustments in benefit reductions for age.

    (a) General. The following months are not counted for purposes of 
reducing benefits in accordance with Sec. 404.410;
    (1) Months subject to deduction under Sec. 404.415, Sec. 404.417, or 
Sec. 404.422;
    (2) In the case of wife's or husband's insurance benefits, any month 
in which she or he had a child of the insured individual in her or his 
care and for which the child was entitled to child's benefits;
    (3) In the case of wife's or husband's insurance benefits, any month 
for which entitlement to such benefits is precluded because the insured 
person's disability ceased (and, as a result, the insured individual's 
entitlement to disability insurance benefits ended);
    (4) In the case of widow's or widower's insurance benefits, any 
month in which she or he had in her or his care a child of the deceased 
insured individual and for which the child was entitled to child's 
benefits;
    (5) In the case of widow's or widower's insurance benefits, any 
month before attainment of age 62 and any month between age 62 and 
attainment of age 65 for which he or she was not entitled to such 
benefits;
    (6) In the case of old-age insurance benefits, any month for which 
the individual was entitled to disability insurance benefits.
    (b) Adjustment by Social Security Administration. Adjustments in 
benefits to exclude those months of entitlement which are described in 
paragraphs (a) (1) through (6) of this section from consideration in 
determining the amount by which such benefits are reduced are made 
automatically. Each year the Social Security Administration examines 
beneficiary records to identify those instances in which an individual 
has attained age 65 (or age 62 in the case of widow's or widower's 
insurance benefits) and one or more months described in paragraphs (a) 
(1) through (6) of this section occurred prior to such age during the 
period of entitlement to benefits reduced for age. Increases in benefit 
amounts based upon this adjustment are effective with the month of 
attainment of age 65, or in the case of widow's and widower's insurance 
benefits, the month of attainment of age 65 or age 62 (whichever 
applies).

[40 FR 30817, July 23, 1975, as amended at 49 FR 24117, June 12, 1984]



Sec. 404.413  Reduction in benefits for age following an increase in primary insurance amounts.

    (a) General. When an individual's benefits have been reduced for age 
under the provisions of Secs. 404.410 through 404.411, the primary 
insurance amount on which such benefits are based may be subsequently 
increased because of recomputation, a general benefit increase pursuant 
to an amendment of the Act, or increases based upon rises in the cost-
of-living under section 215(i) of the Social Security Act. Where the 
individual's benefits are increased because of an increase in the 
primary insurance amount, such benefits are reduced separately under 
Secs. 404.410 and 404.411. The benefit amount for months before the 
effective date of the increase in the primary insurance amount is 
reduced under Sec. 404.410 (and Sec. 404.411, if applicable) and added 
to the amount of increase in benefit amount which has been reduced for 
months of entitlement to the increase prior to the individual's 
retirement age; the resulting sum will be the total benefit amount to 
which the individual is entitled for the month of such increase and 
months thereafter.

[[Page 150]]

    (b) Subsequent reduction of increases in reduced benefit after 1977 
applies as or original entitlement. When an individual's benefits have 
been reduced for age and the benefit is increased after 1977 due to a 
rise in the primary insurance amount, the amount of the increase to 
which the individual is entitled is proportionately reduced as provided 
in paragraph (c) of this section. When an individual is entitled to more 
than one benefit which is reduced for age, the rules for reducing the 
benefit increases apply to each reduced benefit.
    (c) How reduction is computed--(1) Entitlement to reduced benefits 
after 1977. If an individual becomes entitled after 1977 to a benefit 
reduced for age, and the primary insurance amount on which the reduced 
benefit is based is increased, the amount of the increase payable to the 
individual is reduced by the same percentage as used to reduce the 
benefit in the month of initial entitlement. Where the reduced benefit 
of an individual has been adjusted at age 65 (age 62 and 65 for widows) 
any increase to which the individual becomes entitled thereafter is 
reduced by the adjusted percentage.
    (2) Entitlement to reduced benefits before 1978. An individual who 
became entitled to a benefit reduced for age before 1978, and whose 
benefit may be increased as a result of an increase in the primary 
insurance amount after 1977, shall have the amount of the benefit to 
which he or she is entitled increased by the same percentage as the 
increase in the primary insurance amount.

[40 FR 30817, July 23, 1975, as amended at 43 FR 33706, Aug. 1, 1978]



Sec. 404.415  Deductions because of excess earnings; annual earnings test.

    (a) Deductions because of beneficiary's earnings. Under the annual 
earnings test, deductions are made from monthly benefits (except 
disability insurance benefits, child's insurance benefits based on the 
child's disability, or widow's or widower's insurance benefits based on 
the widow's or widower's disability) payable to a beneficiary for each 
month in a taxable year (whether a calendar year or a fiscal year) 
beginning after December 1954 in which the beneficiary is under age 72 
(age 70 after December 1982) and to which excess earnings are charged 
under the provisions described in Sec. 404.434.
    (b) Deductions from husband's, wife's, or child's benefits because 
of excess earnings of the insured individual. Deductions are made from 
the wife's, husband's, or child's insurance benefits payable (or deemed 
payable--see Sec. 404.420) on the insured individual's earnings record 
because of the excess earnings of the insured individual under the 
provisions described in Sec. 404.416. However, beginning with January 
1985, deductions will not be made from the benefits payable to a 
divorced wife or a divorced husband who has been divorced from the 
insured individual for at least 2 years.

[32 FR 19159, Dec. 20, 1967, as amended at 48 FR 4281, Jan. 31, 1983; 51 
FR 11912, Apr. 8, 1986]



Sec. 404.416  Amount of deduction because of excess earnings.

    (a) Deductions because of excess earnings of insured individual. For 
taxable years beginning after 1960, or ending after June 1961, if excess 
earnings (as described in Sec. 404.430) of an insured individual are 
chargeable under the annual earnings test to a month, a deduction is 
made from the total of the benefits payable to him and to all other 
persons entitled (or deemed entitled--see Sec. 404.420) on his earnings 
record for that month. This deduction is an amount equal to that amount 
of the excess earnings so charged. (See Sec. 404.434 concerning the 
manner of charging such excess earnings.) However, beginning with 
January 1985, deductions will not be made from the benefits payable to a 
divorced wife or a divorced husband who has been divorced from the 
insured individual for at least 2 years, and the divorced spouse will be 
considered as not entitled for purposes of computing the amount of 
deductions from other beneficiaries.
    (b) Deductions because of excess earnings of other beneficiary. For 
taxable years beginning after 1960, or ending after June 1961, if 
benefits are payable to a person entitled (or deemed entitled--see 
Sec. 404.420) on the earnings record of the insured individual, and such 
person has excess earnings (as described in Sec. 404.430) charged to a 
month, a deduction is made from his benefits

[[Page 151]]

only for that month. This deduction is an amount equal to the amount of 
the excess earnings so charged. (See Sec. 404.434 for charging of excess 
earnings where both the insured individual and such person have excess 
earnings.)

[43 FR 8132, Feb. 28, 1978, as amended at 51 FR 11912, Apr. 8, 1986]



Sec. 404.417  Deductions because of noncovered remunerative activity outside the United States; 45 hour and 7-day work test.

    (a) Deductions because of individual's activity--(1) Prior to May 
1983. For months prior to May 1983, a 7-day work test applies in a month 
before benefit deductions are made for noncovered remunerative activity 
outside the United States. A deduction is made from any monthly benefit 
(except disability insurance benefits, child's insurance benefits based 
on the child's disability, or widow's or widower's insurance benefits 
based on the widow's or widower's disability) payable to an individual 
for each month in a taxable year beginning after December 1954 in which 
the beneficiary, while under age 72 (age 70 after December 1982), 
engages in noncovered remunerative activity (see Sec. 404.418) outside 
the United States on 7 or more different calendar days. The deduction is 
for an amount equal to the benefit payable to the individual for that 
month.
    (2) From May 1983 on. Effective May 1983, a 45-hour work test 
applies before a benefit deduction is made for the non-covered 
remunerative activity performed outside the United States in a month by 
the type of beneficiary described in paragraph (a)(1) of this section.
    (b) Deductions from benefits because of the earnings or work of an 
insured individual--(1) Prior to September 1984. Where the insured 
individual entitled to old-age benefits works on 7 or more days in a 
month prior to September 1984 while under age 72 (age 70 after December 
1982), a deduction is made for that month from any:
    (i) Wife's, husband's, or child's insurance benefit payable on the 
insured individual's earnings record; and
    (ii) Mother's, father's, or child's insurance benefit based on 
child's disability, which under Sec. 404.420 is deemed payable on the 
insured individual's earnings record because of the beneficiary's 
marriage to the insured individual.
    (2) From September 1984 on. Effective September 1984, a benefit 
deduction is made for a month from the benefits described in paragraph 
(b)(1) of this section only if the insured individual, while under age 
70, has worked in excess of 45 hours in that month.
    (3) Amount of deduction. The amount of the deduction required by 
this paragraph (b) is equal to the wife's, husband's or child's benefit.
    (4) From January 1985 on. Effective January 1985, no deduction will 
be made from the benefits payable to a divorced wife or a divorced 
husband who has been divorced from the insured individual for at least 2 
years.

[49 FR 24117, June 12, 1984, as amended at 51 FR 11912, Apr. 21, 1986; 
52 FR 26145, July 13, 1987]



Sec. 404.418  ``Noncovered remunerative activity outside the United States,'' defined.

    An individual is engaged in noncovered remunerative activity outside 
the United States for purposes of deductions described in Sec. 404.417 
if:
    (a) He performs services outside the United States as an employee 
and the services do not constitute employment as defined in subpart K of 
this part and, for taxable years ending after 1955, the services are not 
performed in the active military or naval service of the United States; 
or
    (b) He carries on a trade or business outside the United States 
(other than the performance of services as an employee) the net income 
or loss of which is not includable in computing his net earnings from 
self-employment (as defined in Sec. 404.1050) for a taxable year and 
would not be excluded from net earnings from self-employment (see 
Sec. 404.1052) if the trade or business were carried on in the United 
States. When used in the preceding sentence with respect to a trade or 
business, the term United States does not include the Commonwealth of 
Puerto Rico, the Virgin Islands and, with respect to taxable years 
beginning after 1960, Guam or American Samoa, in the case of an

[[Page 152]]

alien who is not a resident of the United States (including the 
Commonwealth of Puerto Rico, the Virgin Islands and, with respect to 
taxable years beginning after 1960, Guam and American Samoa), and the 
term trade or business shall have the same meaning as when used in 
section 162 of the Internal Revenue Code of 1954.



Sec. 404.420  Persons deemed entitled to benefits based on an individual's earnings record.

    For purposes of imposing deductions under the annual earnings test 
(see Sec. 404.415) and the foreign work test (see Sec. 404.417), a 
person who is married to an old-age insurance beneficiary and who is 
entitled to a mother's or father's insurance benefit or a child's 
insurance benefit based on the child's disability (and all these 
benefits are based on the earnings record of some third person) is 
deemed entitled to such benefit based on the earnings record of the old-
age insurance beneficiary to whom he or she is married. This section is 
effective for months in any taxable year of the old-age insurance 
beneficiary that begins after August 1958.

[49 FR 24117, June 12, 1984]



Sec. 404.421  Deductions because beneficiary failed to have a child in his or her care.

    Deductions for failure to have a child in care (as defined in 
subpart D of this part) are made as follows:
    (a) Wife's or husband's insurance benefits. A deduction is made from 
the wife's or husband's insurance benefit to which he or she is entitled 
for any month if he or she is under age 65 and does not have in his or 
her care a child of the insured entitled to a child's insurance benefit. 
However, a deduction is not made for any month in which he or she is age 
62 or over, but under age 65, and there is in effect a certificate of 
election for him or her to receive an actuarially reduced wife's or 
husband's insurance benefit for such month (see subpart D of this part).
    (b) Mother's or father's insurance benefits--(1) Widow or Widower. A 
deduction is made from the mother's or father's insurance benefit to 
which he or she is entitled as the widow or widower (see subpart D of 
this part) of the deceased individual upon whose earnings such benefit 
is based, for any month in which he or she does not have in his or her 
care a child who is entitled to a child's insurance benefit based on the 
earnings of the deceased insured individual.
    (2) Surviving divorced mother or father. A deduction is made from 
the mother's or father's insurance benefit to which he or she is 
entitled as the surviving divorced mother or father (see subpart D of 
this part) of the deceased individual upon whose earnings record such 
benefit is based, for any month in which she or he does not have in care 
a child of the deceased individual who is her or his son, daughter, or 
legally adopted child and who is entitled to a child's insurance benefit 
based on the earnings of the deceased insured individual.
    (c) Amount to be deducted. The amount deducted from the benefit, as 
described in paragraphs (a) and (b) of this section, is equal to the 
amount of the benefit which is otherwise payable for the month in which 
she or he does not have a child in his or her care.
    (d) When child is considered not entitled to benefits. For purposes 
of paragraphs (a) and (b) of this section a person is considered not 
entitled to a child's insurance benefit for any month in which he is age 
18 or over, and:
    (1) Is entitled to a child's insurance benefit based on his own 
disability and a deduction is made from the child's insurance benefit 
because of his refusal of rehabilitation services as described in 
Sec. 404.422(b); or
    (2) Is entitled to a child's insurance benefit because he is a full-
time student at an educational institution. This paragraph applies to 
benefits for months after December 1964.

[32 FR 19159, Dec. 20, 1967, as amended at 49 FR 24117, June 12, 1984]



Sec. 404.422  Deductions because of refusal to accept rehabilitation services.

    (a) Deductions because individual entitled to disability insurance 
benefits refuses rehabilitation services--(1) Disability insurance 
beneficiary. A deduction is made from any benefit payable to a 
disability insurance beneficiary for each month in which he refuses 
without

[[Page 153]]

good cause to accept rehabilitation services available to him under a 
State plan approved under the Vocational Rehabilitation Act.
    (2) Other beneficiaries. For each month in which a deduction is made 
from an individual's disability insurance benefit because of his refusal 
to accept rehabilitation services (as described in paragraph (a)(1) of 
this section), a deduction is also made from:
    (i) Any wife's, husband's, or child's insurance benefit payable for 
that month on the earnings record of the individual entitled to 
disability insurance benefits;
    (ii) Benefits payable for that month to the disability insurance 
beneficiary's spouse who is entitled (on the earnings record of a third 
person) to a mother's insurance benefit or to a child's insurance 
benefit based on disability.
    (b) Deductions because individual entitled to a child's insurance 
benefit based on disability refuses rehabilitation services. A deduction 
is made from any benefit payable to an individual who has attained age 
18 and is entitled to a child's insurance benefit based on disability, 
for each month in which he refuses without good cause to accept 
rehabilitation services available to him under a State plan approved 
under the Vocational Rehabilitation Act unless, in that month, he is a 
full-time student at an educational institution.
    (c) Deductions because individual entitled to widow's or widower's 
insurance benefit based on disability refuses rehabilitation services--
(1) Widow's insurance beneficiary. A deduction is made from any benefits 
payable to an individual entitled to a widow's insurance benefit based 
on disability for each month in which she is under age 60 and refuses 
without good cause to accept rehabilitation services available to her 
under a State plan approved under the Vocational Rehabilitation Act.
    (2) Widower's insurance beneficiary. A deduction is made from any 
benefits payable to an individual entitled to a widower's insurance 
benefit based on disability for each month in which he is under age 60 
(age 62 for months prior to January 1973) and refuses without good cause 
to accept rehabilitation services available to him under a State plan 
approved under the Vocational Rehabilitation Act.
    (d) Amount of deduction. The amount deducted from an individual's 
benefit for a month under the provisions of paragraph (a), (b), or (c) 
of this section is an amount equal to the benefit otherwise payable for 
that month.
    (e) Good cause for refusal of rehabilitation services. An individual 
may refuse to accept rehabilitation services (for the purposes of 
paragraph (a), (b), or (c) of this section) if his refusal is based on 
good cause. In determining whether an individual has good cause for 
refusing rehabilitation services, we will take into account any 
physical, mental, educational, or linguistic limitations (including any 
lack of facility with the English language) the individual may have 
which may have caused the individual to refuse such services. We also 
consider other factors that may have caused an individual to refuse such 
services. For example, an individual has good cause for refusing 
rehabilitation services where:
    (1) The individual is a member or adherent of any recognized church 
or religious sect which teaches its members or adherents to rely solely, 
in the treatment and care of any physical or mental impairment, on 
prayer or spiritual means through the application and use of the tenets 
or teachings of such church or sect; and
    (2) His refusal to accept rehabilitation services was due solely to 
his adherence to the teachings or tenets of his church or sect.

[32 FR 19159, Dec. 20, 1967, as amended at 38 FR 9429, Apr. 16, 1973; 59 
FR 1633, Jan. 12, 1994]



Sec. 404.423  Manner of making deductions.

    Deductions provided for in Secs. 404.415, 404.417, 404.421, and 
404.422 (as modified in Sec. 404.458) are made by withholding benefits 
(in whole or in part, depending upon the amount to be withheld) for each 
month in which an event causing a deduction occurred. If the amount to 
be deducted is not withheld from the benefits payable in the month in 
which the event causing the deduction occurred, such amount constitutes 
a deduction overpayment and is subject to adjustment or recovery in 
accordance

[[Page 154]]

with the provisions of subpart F of this part.



Sec. 404.424  Total amount of deductions where more than one deduction event occurs in a month.

    If more than one of the deduction events specified in Secs. 404.415, 
404.417, and 404.421 occurred in any 1 month, each of which would 
occasion a deduction equal to the benefit for such month, only an amount 
equal to such benefit is deducted.



Sec. 404.425  Total amount of deductions where deduction events occur in more than 1 month.

    If a deduction event described in Secs. 404.415, 404.417, 404.421, 
and 404.422 occurs in more than 1 month, the total amount deducted from 
an individual's benefits is equal to the sum of the deductions for all 
months in which any such event occurred.



Sec. 404.428  Earnings in a taxable year.

    (a) General. (1) In applying the annual earnings test (see 
Sec. 404.415(a)) under this subpart, all of a beneficiary's earnings (as 
defined in Sec. 404.429) for all months of the beneficiary's taxable 
year are used even though the individual may not be entitled to benefits 
during all months of the taxable year. (See, however, Sec. 404.430 for 
the rule which applies to earnings of a beneficiary who attains age 72 
during the taxable year (age 70 for months after December 1982)).
    (2) The taxable year of an employee is presumed to be a calendar 
year until it is shown to the satisfaction of the Social Security 
Administration that the individual has a different taxable year. A self-
employed individual's taxable year is a calendar year unless the 
individual has a different taxable year for the purposes of subtitle A 
of the Internal Revenue Code of 1954. In either case, the number of 
months in a taxable year is not affected by--(i) The time a claim for 
social security benefits is filed, (ii) attainment of any particular 
age, (iii) marriage or the termination of marriage, or (iv) adoption. 
For beneficiaries who die on or before November 10, 1988, a taxable year 
ends with the month of the death of the beneficiary. The month of death 
is counted as a month of the deceased beneficiary's taxable year in 
determining whether the beneficiary had excess earnings for the year 
under Sec. 404.430. For beneficiaries who die after November 10, 1988, 
the number of months used in determining whether the beneficiary had 
excess earnings for the year under Sec. 404.430 is 12.
    (b) When derived. Wages as defined in Sec. 404.429(c) are derived 
and includable as earnings for the months and year in which the 
beneficiary rendered the services. Net earnings from self-employment, or 
net losses therefrom, are derived, or incurred, and are includable as 
earnings or losses, in the year for which such earnings or losses are 
reportable for Federal income tax purposes.

[32 FR 19159, Dec. 20, 1967, as amended at 45 FR 48116, July 18, 1980; 
48 FR 4282, Jan. 31, 1983; 55 FR 37461, Sept. 12, 1990]



Sec. 404.429  Earnings; defined.

    (a) General. When the term earnings is used in this subpart other 
than as a part of the phrase net earnings from self-employment, it means 
an individual's earnings for a taxable year after 1954. It includes the 
sum of his wages for services rendered in such year, and his net 
earnings from self-employment for the taxable year, minus any net loss 
from self-employment for the same taxable year.
    (b) Net earnings from self-employment; net loss from self-
employment. An individual's net earnings from self-employment and his 
net loss from self-employment are determined under the provisions in 
subpart K of this part except that:
    (1) For the purposes of this section, the provisions in subpart K of 
this part shall not apply that exclude from the definition of trade or 
business the following occupations:
    (i) The performance of the functions of a public office;
    (ii) The performance of a service of a duly ordained, commissioned, 
or licensed minister of a church in the exercise of his ministry or by a 
member of a religious order in the exercise of duties required by the 
order;

[[Page 155]]

    (iii) The performance of service by an individual in the exercise of 
his profession as a Christian Science practitioner;
    (iv) For taxable years ending before 1965, the performance by an 
individual in the exercise of his profession as a doctor of medicine;
    (v) For taxable years ending before 1956, the performance of service 
by an individual in the exercise of his profession as a lawyer, dentist, 
osteopath, veterinarian, chiropractor, naturopath, or optometrist.
    (2) For the sole purpose of the earnings test under this subpart--
    (i) An individual who has attained age 65 on or before the last day 
of his or her taxable year shall have excluded from his or her gross 
earnings from self-employment, royalties attributable to a copyright or 
patent obtained before the taxable year in which he or she attained age 
65 if the copyright or patent is on property created by his or her own 
personal efforts; and
    (ii) An individual entitled to insurance benefits, under title II of 
the Act, other than disability insurance benefits or child's insurance 
benefits payable by reason of being under a disability, shall have 
excluded from gross earnings for any year after 1977 any self-employment 
income received in a year after his or her initial year of entitlement 
that is not attributable to services performed after the first month he 
or she became entitled to benefits. As used in this paragraph (b)(2)(ii) 
of this section, services means any significant work activity performed 
by the individual in the operation or management of a trade, profession, 
or business which can be related to the income received. Such services 
will be termed significant services. Where a portion of the income 
received in a year is not related to any significant services performed 
after the month of initial entitlement, only that portion may be 
excluded from gross earnings for deduction purposes. The balance of the 
income counts for deduction purposes. Not counted as significant 
services are--
    (A) Actions taken after the initial month of entitlement to sell a 
crop or product if the crop or product was completely produced or 
created in or before the month of entitlement. This rule does not apply 
to income received by an individual from a trade or business of buying 
and selling products produced or made by others; for example, a grain 
broker.
    (B) Those activities that are related solely to protecting an 
investment in a currently operating business or that are too irregular, 
occasional, or minor to be considered as having a bearing on the income 
received, such as--
    (1) Hiring an agent, manager, or other employee to operate the 
business;
    (2) Signing contracts where the owner's signature is required so 
long as the major contract negotiations were handled by the owner's 
agent, manager, or other employees in running the business for the 
owner;
    (3) Looking over the company's financial records to assess the 
effectiveness of those agents, managers, or employees in running the 
business for the owner;
    (4) Personally contacting an old and valued customer solely for the 
purpose of maintaining good will when such contact has a minimal effect 
on the ongoing operation of the trade or business; or
    (5) Occasionally filling in for an agent, manager, or other employee 
or partner in an emergency.
    (iii) An individual is presumed to have royalties or other self-
employment income countable for purposes of the earnings test until it 
is shown to the satisfaction of the Social Security Administration that 
such income may be excluded under Sec. 404.429(b)(2) (i) or (ii).
    (3) In figuring an individual's net earnings or net loss from self-
employment, all net income or net loss is includable even though (i) the 
individual did not perform personal services in carrying on the trade or 
business, (ii) the net profit was less than $400, (iii) the net profit 
was in excess of the maximum amount creditable to his earnings record, 
or (iv) the net profit was not reportable for social security tax 
purposes.
    (4) An individual's net earnings from self-employment is the excess 
of gross income over the allowable business deductions (allowed under 
the Internal

[[Page 156]]

Revenue Code). An individual's net loss from self-employment is the 
excess of business deductions (that are allowed under the Internal 
Revenue Code) over gross income. Expenses arising in connection with the 
production of income excluded from gross income under 
Sec. 404.429(b)(2)(ii) cannot be deducted from wages or net earnings 
from self-employment that are not excluded under that section.
    (c) Wages defined. Wages include the gross amount of an individual's 
wages rather than the net amount paid after deductions by the employer 
for items such as taxes and insurance. For purposes of this section, an 
individual's wages are determined under the provisions of subpart K of 
this part, except that, notwithstanding the provisions of subpart K, 
wages also includes:
    (1) Remuneration in excess of the amounts in the annual wage 
limitation table in Sec. 404.1047;
    (2) Cash remuneration of less than $50 paid in a calendar quarter to 
an employee for (i) domestic service in the private home of the 
employer, or (ii) service not in the course of the employer's trade or 
business; and
    (3) Payments for agricultural labor excluded under Sec. 404.1055.
    (4) Remuneration, cash and noncash, for service as a homeworker even 
though the cash remuneration paid the employee is less than $50 in a 
calendar quarter; and
    (5) For taxable years ending after 1955, services performed outside 
the United States in the military or naval service of the United States; 
and
    (6) Remuneration for services excepted from employment performed 
within the United States by an individual as an employee that are for 
that reason not considered wages under subpart K of this part, if the 
remuneration for such services is not includable in computing his net 
earnings from self-employment or net loss from self-employment, as 
defined in paragraph (b) of this section.
    (d) Presumptions concerning wages. For purposes of this section, 
where reports received by the Administration show wages (as defined in 
paragraph (c) of this section) were paid to an individual during a 
taxable year, it is presumed that they were paid to him for services 
rendered in that year until such time as it is shown to the satisfaction 
of the Administration that the wages were paid for services rendered in 
another taxable year. If the reports of wages paid to an individual show 
his wages for a calendar year, the individual's taxable year is presumed 
to be a calendar year for purposes of this section until it is shown to 
the satisfaction of the Administration that his taxable year is not a 
calendar year.

[32 FR 19159, Dec. 20, 1967, as amended at 41 FR 13912, Apr. 1, 1976; 47 
FR 46690, Oct. 20, 1982; 52 FR 8249, Mar. 17, 1987; 57 FR 59913, Dec. 
17, 1992]



Sec. 404.430  Excess earnings defined for taxable years ending after December 1972; monthly exempt amount defined.

    (a) Method of determining excess earnings for years ending after 
December 1972. For taxable years ending after 1972, an individual's 
excess earnings for a taxable year are 50 percent of his or her earnings 
(as described in Sec. 404.429) for the year which are above the exempt 
amount. For an individual who has attained retirement age, as defined in 
section 216(l) of the Act, excess earnings for a taxable year beginning 
after December 31, 1989, are 33\1/3\ percent of his or her earnings (as 
described in Sec. 404.429) for the year which are above the exempt 
amount. For deaths after November 10, 1988, an individual who dies in 
the taxable year in which he or she would have attained retirement age 
shall have his or her excess earnings computed as if he or she had 
attained retirement age. The exempt amount is obtained by multiplying 
the number of months in the taxable year (except that the number of 
months in the taxable year in which the individual dies shall be 12, if 
death occurs after November 10, 1988) by the following applicable 
monthly exempt amount.
    (1) $175 for taxable years ending after December 1972 and before 
January 1974;
    (2) $200 for taxable years beginning after December 1973 and before 
January 1975; and
    (3) The exempt amount for taxable years ending after December 1974, 
as determined under paragraphs (c) and (d) of this section. However, 
earnings in and after the month an individual

[[Page 157]]

attains age 72 will not be used to figure excess earnings for retirement 
test purposes. For the employed individual, wages for months prior to 
the month of attainment of age 72 are used to figure the excess earnings 
for retirement test purposes. For the self-employed individual, the pro 
rata share of the net earnings or net loss for the taxable year for the 
period prior to the month of attainment of age 72 is used to figure the 
excess earnings. If the beneficiary was not engaged in self-employment 
prior to the month of attainment of age 72, any subsequent earnings or 
losses from self-employment in the taxable year will not be used to 
figure the excess earnings. Where the excess amount figured under the 
provisions of this section is not a multiple of $1, it is reduced to the 
next lower dollar. (All references to age 72 will be age 70 for months 
after December 1982.)
    Example 1.  The self-employed beneficiary attained age 72 in July 
1979. His net earnings for 1979, his taxable year, were $12,000. The pro 
rata share of the net earnings for the period prior to July is $6,000. 
His excess earnings for 1979 for retirement test purposes are $750. This 
is computed by subtracting $4,500 ($375 x 12), the exempt amount for 
1979, from $6,000 and dividing the result by 2.
    Example 2.  The beneficiary attained age 72 in July 1979. His 
taxable year was calendar year 1979. His wages for the period prior to 
July were $6,000. From August through December 1979, he worked in self-
employment and had net earnings in the amount of $2,000. His net 
earnings from self-employment are not used to figure his excess 
earnings. Only his wages for the period prior to July 1979 ($6,000) are 
used to figure his excess earnings. As in example 1, his excess earnings 
are $750.
    Example 3.  The facts are the same as in example 2, except that the 
beneficiary worked in self-employment throughout all of 1979 and had a 
net loss of $500 from the self-employment activity. The pro rata share 
of the net loss for the period prior to July is $250. His earnings for 
the taxable year to be used in figuring excess earnings are $5,750.
    This is computed by subtracting the $250 net loss from self-
employment from the $6,000 in wages. The excess earnings are $625 
(($5,750 - $4,500)2).
    (b) Monthly exempt amount defined. The retirement test monthly 
exempt amount is the amount of wages which a social security beneficiary 
may earn in any month without part of his or her monthly benefit being 
deducted because of excess earnings. For benefits payable for months 
after 1977, the monthly exempt amount applies only in a beneficiary's 
grace year or years. (See Sec. 404.435(a) and (c)).
    (c) Method of determining monthly exempt amount for taxable years 
ending after December 1974. (1) Except as provided under paragraph (d) 
of this section, for purposes of paragraph (a)(3) of this section, the 
applicable monthly exempt amount effective for an individual's taxable 
year that ends in the calendar year after the calendar year in which an 
automatic cost-of-living increase in old-age, survivors, and disability 
insurance benefits is effective is the larger of--
    (i) The exempt amount in effect for months in the taxable year in 
which the exempt amount determination is being made; or
    (ii) The amount determined by:
    (A) Multiplying the monthly exempt amount effective during the 
taxable year in which the exempt amount determination is being made by 
the ratio of:
    (1) The average amount, per employee, of the taxable wages of all 
employees as reported to the Secretary for the first calendar quarter of 
the calendar year in which the exempt amount determination is made, to
    (2) The average amount, per employee, of the taxable wages of all 
employees as reported to the Secretary for the first calendar quarter of 
the most recent calendar year in which an increase in the exempt amount 
was enacted or a determination resulting in such an increase was made, 
and
    (B) Rounding the result of such multiplication:
    (1) To the next higher multiple of $10 where such result is a 
multiple of $5 but not of $10, or
    (2) to the nearest multiple of $10 in any other case.
    (2) For purposes of paragraph (c)(1) of this section, reported for 
the first calendar quarter means reported for such first calendar 
quarter and posted to the earnings records by the Secretary on or before 
the last day of the Social Security Administration's quarterly updating 
operations in September of the same year. Earnings items received or 
posted thereafter are not counted even though they pertain to the first 
quarter.

[[Page 158]]

    (d) Method of determining monthly exempt amount for taxable years 
ending after December 1977 for beneficiaries, age 65 or over. (1) For 
purposes of paragraph (a)(3) of this section, for all months of taxable 
years ending after 1977, the applicable monthly exempt amount for an 
individual who has attained (or, but for the individual's death 
occurring after November 10, 1988, would have attained) retirement age 
as defined in section 216(l) of the Act before the close of the taxable 
year involved is--
    (i) $333.33\1/3\ for each month of any taxable year ending in 1978;
    (ii) $375 for each month of any taxable year ending in 1979;
    (iii) $416.66\2/3\ for each month of any taxable year ending in 
1980; and
    (iv) $458.33\1/3\ for each month of any taxable year ending in 1981;
    (v) $500 for each month of any taxable year ending in 1982;
    (vi) $550 for each month of any taxable year ending in 1983;
    (vii) $580 for each month of any taxable year ending in 1984;
    (viii) $610 for each month of any taxable year ending in 1985;
    (ix) $650 for each month of any taxable year ending in 1986;
    (x) $680 for each month of any taxable year ending in 1987;
    (xi) $700 for each month of any taxable year ending in 1988;
    (xii) $740 for each month of any taxable year ending in 1989; and
    (xiii) $780 for each month of any taxable year ending in 1990.
    (2) Fractional amounts listed in paragraph (d)(1) of this section 
shall be rounded to the next higher whole dollar amount, unless the 
individual shows that doing so results in a different grace year (see 
Sec. 404.435 (a) and (c)).

[40 FR 42865, Sept. 17, 1975; 40 FR 45805, Oct. 3, 1975, as amended at 
45 FR 48117, July 18, 1980; 45 FR 58107, Sept. 2, 1980; 48 FR 4282, Jan. 
31, 1983; 55 FR 37461, Sept. 12, 1990]



Sec. 404.434  Excess earnings; method of charging.

    (a) Months charged. For purposes of imposing deductions for taxable 
years after 1960, the excess earnings (as described in Sec. 404.430) of 
an individual are charged to each month beginning with the first month 
the individual is entitled in the taxable year in question and 
continuing, if necessary, to each succeeding month in such taxable year 
until all of the individual's excess earnings have been charged. Excess 
earnings, however, are not charged to any month described in 
Secs. 404.435 and 404.436.
    (b) Amount of excess earnings charged--(1) Insured individual's 
excess earnings. The insured individual's excess earnings are charged on 
the basis of $1 of excess earnings for each $1 of monthly benefits to 
which he and all other persons are entitled (or deemed entitled--see 
Sec. 404.420) for such month on the insured individual's earnings 
record. (See Sec. 404.439 where the excess earnings for a month are less 
than the total benefits payable for that month.)
    (2) Excess earnings of beneficiary other than insured individual. 
The excess earnings of a person other than the insured individual are 
charged on the basis of $1 of excess earnings for each $1 of monthly 
benefits to which he is entitled (see Sec. 404.437) for such month. The 
excess earnings of such person, however, are charged only against his 
own benefits.
    (3) Insured individual and person entitled (or deemed entitled) on 
his earnings record both have excess earnings. If both the insured 
individual and a person entitled (or deemed entitled) on his earnings 
record have excess earnings (as described in Sec. 404.430), the insured 
individual's excess earnings are charged first against the total family 
benefits payable (or deemed payable) on his earnings record, as 
described in paragraph (b)(1) of this section. Next, the excess earnings 
of a person entitled on the insured individual's earnings record are 
charged (as described in paragraph (c)(2) of this section) against his 
own benefits, but only to the extent that his benefits have not already 
been charged with the excess earnings of the insured individual. See 
Sec. 404.441 for an example of this process and the manner in which 
partial monthly benefits are apportioned.

[32 FR 19159, Dec. 20, 1967, as amended at 38 FR 17716, July 3, 1973; 43 
FR 8133, Feb. 28, 1978]

[[Page 159]]



Sec. 404.435  Excess earnings; months to which excess earnings cannot be charged.

    (a) Monthly benefits payable for months after 1977. Beginning with 
monthly benefits payable for months after 1977, no matter how much a 
beneficiary earns in a given taxable year, no deduction on account of 
excess earnings will be made in the benefits payable for any month--
    (1) In which he or she was not entitled to a monthly benefit;
    (2) In which he or she was considered not entitled to benefits (due 
to noncovered work outside the United States, no child in care, or 
refusal of rehabilitation, as described in Sec. 404.436);
    (3) In which he or she was age 72 or over (age 70 for months after 
December 1982);
    (4) In which he or she was entitled to payment of disability 
insurance benefit;
    (5) In which he or she was age 18 or over and entitled to a child's 
insurance benefit based on disability;
    (6) In which he or she was entitled to a widow's or widower's 
insurance benefit based on disability; or
    (7) Which was a nonservice month (see paragraph (b) of this section) 
in the beneficiary's grace year (see paragraph (c) of this section).
    (b) Nonservice month defined. A nonservice month is any month in 
which an individual, while entitled to retirement or survivors 
benefits--(1) does not work in self-employment (see paragraphs (d) and 
(e) of this section); (2) does not perform services for wages greater 
than the monthly exempt amount set for that month (see paragraph (f) of 
this section and Sec. 404.430 (b), (c), and (d)); and (3) does not work 
in noncovered remunerative activity on 7 or more days in a month while 
outside the United States. A nonservice month occurs even if there are 
no excess earnings in the year.
    (c) Grace year defined. (1) A beneficiary's initial grace year is 
the first taxable year after 1977 in which the beneficiary has a 
nonservice month (see paragraph (b) of this section) in or after the 
month in which he or she is entitled to a retirement, auxiliary, or 
survivor's benefit.
    (2) A beneficiary may have another grace year each time his or her 
entitlement to one type of benefit ends and, after a break in 
entitlement of at least one month, he or she becomes entitled to a 
different type of retirement or survivors benefit. The new grace year 
would then be the taxable year in which occurs the first nonservice 
month after the break in entitlement.
    (3) A month will not be counted as a nonservice month for purposes 
of determining whether a given year is a beneficiary's grace year if the 
nonservice month occurred while the beneficiary was entitled to 
disability benefits under section 223 of the Social Security Act or as a 
disabled widow, widower, or child under section 202.
    (4) A beneficiary entitled to child's benefits, to young wife's or 
young husband's benefits (entitled only by reason of having a child in 
his or her care), or to mother's or father's benefits, is entitled to a 
termination grace year in any year(s) the beneficiary's entitlement to 
these types of benefits terminates. This provision does not apply if the 
termination is because of death or if the beneficiary is entitled to a 
Social Security benefit for the month following the month in which the 
entitlement ended. The beneficiary is entitled to a termination grace 
year in addition to any other grace year(s) available to him or her.
    Example 1:  Don, age 65, will retire from his regular job in April 
of next year. Although he will have earned $11,000 for January-April of 
that year and plans to work part time, he will not earn over the monthly 
exempt amount after April. Don's taxable year is the calendar year. 
Since next year will be the first year in which he has a nonservice 
month while entitled to benefits, it will be his grace year and he will 
be entitled to the monthly earnings test for that year only. He will 
receive benefits for all months in which he does not earn over the 
monthly exempt amount (May-December) even though his earnings have 
substantially exceeded the annual exempt amount. However, in the years 
that follow, only the annual earnings test will be applied if he has 
earnings that exceed the annual exempt amount, regardless of his monthly 
earnings.
    Example 2:  Marion was entitled to mother's insurance benefits from 
1978 because she had a child in her care under age 18. Because she had a 
nonservice month in 1978, 1978 was her initial grace year. Marion's 
child married in

[[Page 160]]

May 1980 and entitlement to mother's benefits terminated in April 1980. 
Since Marion's entitlement did not terminate by reason of her death and 
she was not entitled to another type of Social Security benefit in the 
month after her entitlement to mother's benefit ended, she is entitled 
to a termination grace year for 1980, the year in which her entitlement 
to mother's insurance benefits terminated.
    She applied for and became entitled to widow's insurance benefits 
effective February 1981. Because there was a break in entitlement to 
benefits of at least one month before entitlement to another type of 
benefit, 1981 will be a subsequent grace year if Marion has a nonservice 
month in 1981.
    (d) When an individual works in self-employment. An individual works 
in self-employment in any month in which he or she performs substantial 
services (see Sec. 404.446) in the operation of a trade or business (or 
in a combination of trades and businesses if there are more than one) as 
an owner or partner even though there may be no earnings or net earnings 
caused by the individual's services during the month.
    (e) Presumption regarding work in self-employment. An individual is 
presumed to have worked in self-employment in each month of the 
individual's taxable year until it is shown to the satisfaction of the 
Social Security Administration that in a particular month the individual 
did not perform substantial services (see Sec. 404.446(c)) in any trade 
or business (or in a combination of trades and businesses if there are 
more than one) from which the net income or loss is included in 
computing the individual's annual earnings (see Sec. 404.429).
    (f) Presumption regarding services for wages. An individual is 
presumed to have performed services in any month for wages (as defined 
in Sec. 404.429) of more than the applicable monthly exempt amount set 
for that month until it is shown to the satisfaction of the Social 
Security Administration that the individual did not perform services in 
that month for wages of more than the monthly exempt amount.

[45 FR 48117, July 18, 1980, as amended at 47 FR 46691, Oct. 20, 1982; 
48 FR 4282, Jan. 31, 1983]



Sec. 404.436  Excess earnings; months to which excess earnings cannot be charged because individual is deemed not entitled to benefits.

    Under the annual earnings test, excess earnings (as described in 
Sec. 404.430) are not charged to any month in which an individual is 
deemed not entitled to a benefit. A beneficiary (i.e., the insured 
individual or any person entitled or deemed entitled on the individual's 
earnings record) is deemed not entitled to a benefit for a month if he 
is subject to a deduction for that month because of:
    (a) Engaging in noncovered remunerative activity outside the United 
States (as described in Secs. 404.417 and 404.418); or
    (b) Failure to have a child in her care (in the case of a wife under 
age 65 or a widow or surviving divorced mother under age 62, as 
described in Sec. 404.421); or
    (c) Refusal by a person entitled to a child's insurance benefit 
based on disability to accept rehabilitation services (as described in 
Sec. 404.422). (An insured individual's excess earnings are not charged 
against the benefit of a child entitled (or deemed entitled) on the 
insured individual's earnings record for any month in which the child is 
subject to a deduction for refusing rehabilitation services); or
    (d) Refusal by an individual entitled to a disability insurance 
benefit to accept rehabilitation services as described in Sec. 404.422 
(e.g., a wife's excess earnings may not be charged against her benefits 
for months in which the disability insurance beneficiary on whose 
account she is entitled to wife's benefits incurs a deduction because he 
refuses rehabilitation services; also, a woman's earnings may not be 
charged against the mother's insurance benefit or child's insurance 
benefit she is receiving (on the earnings record of another individual) 
for months in which her husband refuses rehabilitation services while he 
is entitled to a disability insurance benefit).

[[Page 161]]

    (e) Refusal by a person entitled before age 60 to a widow's/or to a 
widower's insurance benefit based on disability (before age 62 in the 
case of a widower's insurance benefit for months before 1973) to accept 
rehabilitation services (as described in Sec. 404.422).

[32 FR 19159, Dec. 20, 1967, as amended at 38 FR 9429, Apr. 16, 1973; 38 
FR 17716, July 3, 1973; 43 FR 8133, Feb. 28, 1978]



Sec. 404.437  Excess earnings; benefit rate subject to deductions because of excess earnings.

    For purposes of deductions because of excess earnings (as described 
in Sec. 404.430), the benefit rate against which excess earnings are 
charged is the amount of the benefit (other than a disability insurance 
benefit) to which the person is entitled for the month:
    (a) After reduction for the maximum (see Secs. 404.403 and 404.404). 
The rate as reduced for the maximum as referred to in this paragraph is 
the one applicable to remaining entitled beneficiaries after exclusion 
of beneficiaries deemed not entitled under Sec. 404.436 (due to a 
deduction for engaging in noncovered remunerative activity outside the 
United States, failure to have a child in her care, or refusal to accept 
rehabilitation services);
    (b) After any reduction under section 202(q) of the Act because of 
entitlement to benefits for months before age 65 (this applies only to 
old-age, wife's, widow's, or husband's benefits);
    (c) After any reduction in benefits payable to a person entitled (or 
deemed entitled; see Sec. 404.420) on the earnings record of the insured 
individual because of entitlement on his own earnings record to other 
benefits (see Sec. 404.407); and
    (d) After any reduction of benefits payable to a person entitled or 
deemed entitled on the earnings record of an individual entitled to a 
disability insurance benefit because of such individual's entitlement to 
workmen's compensation for months after 1965 (see Sec. 404.408).

[32 FR 19159, Dec. 20, 1967, as amended at 38 FR 17716, July 3, 1973; 43 
FR 8133, Feb. 28, 1978]



Sec. 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.

    Deductions are made against the total family benefits where the 
excess earnings (as described in Sec. 404.430) of an individual entitled 
to old-age insurance benefits are charged to a month and require 
deductions in an amount less than the total family benefits payable on 
his earnings record for that month (including the amount of a mother's 
or child's insurance benefit payable to a spouse who is deemed entitled 
on the individual's earnings record--see Sec. 404.420). The difference 
between the total benefits payable and the deductions made under the 
annual earnings test for such month is paid (if otherwise payable under 
title II of the Act) to each person in the proportion that the benefit 
to which each is entitled (before the application of the reductions 
described in Sec. 404.403 for the family maximum, Sec. 404.407 for 
entitlement to more than one type of benefit, and section 202(q) of the 
Act for entitlement to benefits before retirement age) and before the 
application of Sec. 404.304(f) to round to the next lower dollar bears 
to the total of the benefits to which all of them are entitled, except 
that the total amount payable to any such person may not exceed the 
benefits which would have been payable to that person if none of the 
insured individual's excess earnings had been charged to that month.
    Example:  A is entitled to an old-age insurance benefit of $165 and 
his wife is entitled to $82.50 before rounding, making a total of 
$247.50. After A's excess earnings have been charged to the appropriate 
months, there remains a partial benefit of $200 payable for October, 
which is apportioned as follows:

------------------------------------------------------------------------
                                                    Fraction            
                                       Original        of     Benefit\1\
                                        benefit     original            
------------------------------------------------------------------------
A..................................       $165           2/3        $133
Wife...............................         82.50        1/3          66
                                    ------------------------------------
  Total............................        247.50  .........         199
------------------------------------------------------------------------
\1\ After deductions for excess earnings and after rounding per Sec.    
  404.304(f).                                                           


[38 FR 9429, Apr. 16, 1973, as amended at 38 FR 17717, July 3, 1973; 43 
FR 8133, Feb. 28, 1978; 48 FR 46149, Oct. 11, 1983]

[[Page 162]]



Sec. 404.440  Partial monthly benefits; pro-rated share of partial payment exceeds the benefit before deduction for excess earnings.

    Where, under the apportionment described in Sec. 404.439, a person's 
prorated share of the partial benefit exceeds the benefit rate to which 
he was entitled before excess earnings of the insured individual were 
charged, such person's share of the partial benefit is reduced to the 
amount he would have been paid had there been no deduction for excess 
earnings (see example). The remainder of the partial benefit is then 
paid to other persons eligible to receive benefits in the proportion 
that the benefit of each such other person bears to the total of the 
benefits to which all such other persons are entitled (before reduction 
for the family maximum). Thus, if only two beneficiaries are involved, 
payment is made to one as if no deduction had been imposed; and the 
balance of the partial benefit is paid to the other. If three or more 
beneficiaries are involved, however, reapportionment of the excess of 
the beneficiary's share of the partial benefit over the amount he would 
have been paid without the deduction is made in proportion to his 
original entitlement rate (before reduction for the family maximum). If 
the excess amount involved at any point totals less than $1, it is not 
reapportioned; instead, each beneficiary is paid on the basis of the 
last calculation.
    Example:  Family maximum is $150. Insured individual's excess 
earnings charged to the month are $25. The remaining $125 is prorated as 
partial payment.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                             Benefit after                                              
                                                                                             deductions for     Benefit reduced for     Benefit payable 
                                                              Original     Fraction of      excess earnings     maximum but without        after both   
                                                              benefit     original total       but before      deductions for excess     deductions and 
                                                                             benefit         reduction for            earnings          reductions (and 
                                                                                             family maximum                                 rounded)    
--------------------------------------------------------------------------------------------------------------------------------------------------------
Insured Individual.........................................       $100              \2/5\                 50                   100.00                 75
Wife.......................................................         50              \1/5\                 25                    16.60                 16
Child......................................................         50              \1/5\                 25                    16.60                 16
Child......................................................         50              \1/5\                 25                    16.60                 16
--------------------------------------------------------------------------------------------------------------------------------------------------------


[32 FR 19159, Dec. 20, 1967, as amended at 48 FR 46149, Oct. 11, 1983]



Sec. 404.441  Partial monthly benefits; insured individual and another person entitled (or deemed entitled) on the same earnings record both have excess 
          earnings.

    Where both the insured individual and another person entitled (or 
deemed entitled) on the same earnings record have excess earnings (as 
described in Sec. 404.430), their excess earnings are charged, and their 
partial monthly benefit is apportioned, as follows:
    Example:  M and his wife are initially entitled to combined total 
benefits of $264 per month based on M's old-age insurance benefit of 
$176. For the taxable year in question, M's excess earnings were $1,599 
and his wife's excess earnings were $265. Both were under age 65. M had 
wages of more than $340 in all months of the year except February, while 
his wife had wages of more than $340 in all months of the year. After 
M's excess earnings have been charged to the appropriate months (all 
months through July except February), there remains a partial benefit 
payment for August of $249, which is allocated to M and his wife in the 
ratio that the original benefit of each bears to the sum of their 
original benefits: $166 and $83. His wife's excess earnings are charged 
against her full benefit for February ($88), her partial benefit for 
August ($83), her full benefit for September, and from $6 of her October 
benefit, leaving an $82 benefit payable to her for that month.

[48 FR 46149, Oct. 11, 1983]



Sec. 404.446  Definition of ``substantial services'' and ``services.''

    (a) General. In general, the substantial services test will be 
applicable only in a grace year (including a termination grace year) as 
defined in Sec. 404.435(c)(1). It is a test of whether, in view of all 
the services rendered by the individual and the surrounding 
circumstances, the individual reasonably can be considered retired in 
the month in question. In determining whether an individual has or has 
not performed substantial services in any month, the following factors 
are considered:

[[Page 163]]

    (1) The amount of time the individual devoted to all trades and 
businesses;
    (2) The nature of the services rendered by the individual;
    (3) The extent and nature of the activity performed by the 
individual before he allegedly retired as compared with that performed 
thereafter;
    (4) The presence or absence of an adequately qualified paid manager, 
partner, or family member who manages the business;
    (5) The type of business establishment involved;
    (6) The amount of capital invested in the trade or business; and
    (7) The seasonal nature of the trade or business.
    (b) Individual engaged in more than one trade or business. When an 
individual, in any month, performs services in more than one trade or 
business, his services in all trades or businesses are considered 
together in determining whether he performed substantial services in 
self-employment in such month.
    (c) Evidentiary requirements. An individual who alleges that he did 
not render substantial services in any month, or months, shall submit 
detailed information about the operation of the trades or businesses, 
including the individual's activities in connection therewith. When 
requested to do so by the Administration, the individual shall also 
submit such additional statements, information, and other evidence as 
the Administration may consider necessary for a proper determination of 
whether the individual rendered substantial services in self-employment. 
Failure of the individual to submit the requested statements, 
information, and other evidence is a sufficient basis for a 
determination that the individual rendered substantial services in self-
employment during the period in question.

[32 FR 19159, Dec. 20, 1967, as amended at 47 FR 46691, Oct. 20, 1982]



Sec. 404.447  Evaluation of factors involved in substantial services test.

    In determining whether an individual's services are substantial, 
consideration is given to the following factors:
    (a) Amount of time devoted to trades or businesses. Consideration is 
first given to the amount of time the self-employed individual devotes 
to all trades or businesses, the net income or loss of which is 
includable in computing his earnings as defined in Sec. 404.429. For the 
purposes of this paragraph, the time devoted to a trade or business 
includes all the time spent by the individual in any activity, whether 
physical or mental, at the place of business or elsewhere in furtherance 
of such trade or business. This includes the time spent in advising and 
planning the operation of the business, making business contacts, 
attending meetings, and preparing and maintaining the facilities and 
records of the business. All time spent at the place of business which 
cannot reasonably be considered unrelated to business activities is 
considered time devoted to the trade or business. In considering the 
weight to be given to the time devoted to trades or businesses the 
following rules are applied:
    (1) Forty-five hours or less in a month devoted to trade or 
business. Where the individual establishes that the time devoted to his 
trades and businesses during a calendar month was not more than 45 
hours, the individual's services in that month are not considered 
substantial unless other factors (see paragraphs (b), (c), and (d) of 
this section) make such a finding unreasonable. For example, an 
individual who worked only 15 hours in a month might nevertheless be 
found to have rendered substantial services if he was managing a sizable 
business or engaging in a highly skilled occupation. However, the 
services of less than 15 hours rendered in all trades and businesses 
during a calendar month are not substantial.
    (2) More than 45 hours in a month devoted to trades and businesses. 
Where an individual devotes more than 45 hours to all trades and 
businesses during a calendar month, it will be found that the 
individual's services are substantial unless it is established that the 
individual could reasonably be considered retired in the month and, 
therefore, that such services were not, in fact, substantial.
    (b) Nature of services rendered. Consideration is also given to the 
nature of the services rendered by the individual in any case where a 
finding that the individual was retired would be unreasonable if based 
on time alone (see

[[Page 164]]

paragraph (a) of this section). The more highly skilled and valuable his 
services in self-employment are, the more likely the individual 
rendering such services could not reasonably be considered retired. The 
performance of services regularly also tends to show that the individual 
has not retired. Services are considered in relation to the technical 
and management needs of the business in which they are rendered. Thus, 
skilled services of a managerial or technical nature may be so important 
to the conduct of a sizable business that such services would be 
substantial even though the time required to render the services is 
considerably less than 45 hours.
    (c) Comparison of services rendered before and after retirement. 
Where consideration of the amount of time devoted to a trade or business 
(see paragraph (a) of this section) and the nature of services rendered 
(see paragraph (b) of this section) is not sufficient to establish 
whether an individual's services were substantial, consideration is 
given to the extent and nature of the services rendered by the 
individual before his retirement, as compared with the services 
performed during the period in question. A significant reduction in the 
amount or importance of services rendered in the business tends to show 
that the individual is retired; absence of such reduction tends to show 
that the individual is not retired.
    (d) Setting in which services performed. Where consideration of the 
factors described in paragraphs (a), (b), and (c) of this section is not 
sufficient to establish that an individual's services in self-employment 
were or were not substantial, all other factors are considered. The 
presence or absence of a capable manager, the kind and size of the 
business, the amount of capital invested and whether the business is 
seasonal, as well as any other pertinent factors, are considered in 
determining whether the individual's services are such that he can 
reasonably be considered retired.



Sec. 404.450  Required reports of work outside the United States or failure to have care of a child.

    (a) Beneficiary engaged in noncovered remunerative activity; report 
by beneficiary. Any individual entitled to a benefit which is subject to 
a deduction in that month because of noncovered remunerative activity 
outside the United States (see Sec. 404.417) shall report the occurrence 
of such an event to the Social Security Administration before the 
receipt and acceptance of a benefit for the second month following the 
month in which such event occurred.
    (b) Beneficiary receiving wife's, husband's, mother's or father's 
insurance benefits does not have care of a child; report by beneficiary. 
Any person receiving wife's, husband's, mother's, or father's insurance 
benefits which are subject to a deduction (as described in Sec. 404.421) 
because he or she did not have a child in his or her care shall report 
the occurrence of such an event to the Social Security Administration 
before the receipt and acceptance of a benefit for the second month 
following the month in which the deduction event occurred.
    (c) Report required by person receiving benefits on behalf of 
another. Where a person is receiving benefits on behalf of a beneficiary 
(see subpart U of this part) it is his duty to make the report to the 
Administration required by paragraph (a) or (b) of this section, on 
behalf of the beneficiary.
    (d) Report; content and form. A report required under the provisions 
of this section shall be filed with the Social Security Administration. 
(See Sec. 404.608 for procedures concerning place of filing and date of 
receipt of such a report.) The report should be made on a form 
prescribed by the Administration and in accordance with instructions, 
printed thereon or attached thereto, as prescribed by the 
Administration. Prescribed forms may be obtained at any office of the 
Administration. If the prescribed form is not used, the report should be 
properly identified (e.g., show the name and social security claim 
number of the beneficiary about whom the report is made), describe the 
events being reported, tell when the events occurred, furnish any other 
pertinent data (e.g., who has care of the children), and be properly 
authenticated (e.g., bear the signature and address of the beneficiary 
making the report or the person reporting on his behalf). The report 
should contain all the

[[Page 165]]

information needed for a proper determination of whether a deduction 
applies and, if it does, the period for which such deductions should be 
made.

[32 FR 19159, Dec. 20, 1967, as amended at 49 FR 24117, June 12, 1984; 
51 FR 10616, Mar. 28, 1986]



Sec. 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.

    (a) Penalty for failure to report. If an individual (or the person 
receiving benefits on his behalf) fails to comply with the reporting 
obligations of Sec. 404.450 within the time specified in Sec. 404.450 
and it is found that good cause for such failure does not exist (see 
Sec. 404.454), a penalty deduction is made from the individual's 
benefits in addition to the deduction described in Sec. 404.417 
(relating to noncovered remunerative activity outside the United States) 
or Sec. 404.421 (relating to failure to have care of a child).
    (b) Determining amount of penalty deduction. The amount of the 
penalty deduction for failure to report noncovered remunerative activity 
outside the United States or not having care of a child within the 
prescribed time is determined as follows:
    (1) First failure to make timely report. The penalty deduction for 
the first failure to make a timely report is an amount equal to the 
individual's benefit or benefits for the first month for which the 
deduction event was not reported timely.
    (2) Second failure to make timely report. The penalty deduction for 
the second failure to make a timely report is an amount equal to twice 
the amount of the individual's benefit or benefits for the first month 
for which the deduction event in the second failure period was not 
reported timely.
    (3) Subsequent failures to make timely reports. The penalty 
deduction for the third or subsequent failure to file a timely report is 
an amount equal to three times the amount of the individual's benefit or 
benefits for the first month for which the deduction event in the third 
failure period was not reported timely.
    (c) Determining whether a failure to file a timely report is first, 
second, third, or subsequent failure--(1) Failure period. A failure 
period runs from the date of one delinquent report (but initially 
starting with the date of entitlement to monthly benefits) to the date 
of the next succeeding delinquent report, excluding the date of the 
earlier report and including the date of the later report. The failure 
period includes each month for which succeeding delinquent report, 
excluding a report becomes overdue during a failure period, but it does 
not include any month for which a report is not yet overdue on the 
ending date of such period. If good cause (see Sec. 404.454) is found 
for the entire period, the period is not regarded as a failure period.
    (2) First failure. When no penalty deduction under paragraph (b) of 
this section has previously been imposed against the beneficiary for 
failure to report noncovered remunerative activity outside the United 
States or for failure to report not having care of a child, the earliest 
month in the first failure period for which a report is delinquent and 
for which good cause (see Sec. 404.454) for failure to make the required 
report is not found is considered to be the first failure.
    (3) Second failure. After one penalty deduction under paragraph (b) 
of this section has been imposed against the beneficiary, the first 
month for which a report is delinquent in the second failure period is 
considered to be the second failure.
    (4) Third and subsequent failures. After a second penalty deduction 
under paragraph (b) of this section has been imposed against the 
beneficiary, the first month for which a report is delinquent in the 
third failure period is considered to be the third failure. Subsequent 
failures will be determined in the same manner.
    Example  M became entitled in January 1966 to mother's benefits; 
these benefits are not payable for any month in which the mother does 
not have a child in her care. M accepted benefits for each month from 
January 1966 through June 1967. In July 1967 she reported that she had 
not had a child in her care in January 1967. As she was not eligible for 
a benefit for any month in which she did not have a child in her care, 
M's July 1967 benefit was withheld to recover the overpayment she

[[Page 166]]

had received for January 1967, and the next payment she received was for 
August 1967. No penalty was imposed for her failure to make a timely 
report of the deduction event that occurred in January 1967 because it 
was determined that good cause existed.
    In March 1968 M reported that she had not had a child in her care in 
September or October 1967; however, she had accepted benefit payments 
for each month from August 1967 through February 1968. Her benefits for 
March and April 1968 were withheld to recover the overpayment for 
September and October 1967. Also, it was determined that good cause was 
not present for M's failure to make a timely report of the deduction 
event that had occurred in September 1967. A penalty equal to her 
benefit for September 1967 was deducted from M's May 1968 payment since 
this was her first failure to report not having a child in her care. 
Payments to her then were continued.
    On November 4, 1968, it was learned that M had not had a child in 
her care in November 1967 or in June, July, or August 1968 although she 
had accepted benefits for June through October 1968. Consequently, M's 
benefits for November 1968 through February 1969 were withheld to 
recover the 4 months' overpayment she received for months in which she 
did not have a child in her care. In addition, it was determined that 
good cause was not present for M's failure to report the deduction 
events, and a penalty was imposed equal to twice the amount of M's 
benefit for the month of June 1968. This was M's second failure to 
report not having a child in her care. No further penalty applied for 
November 1967 because that month was included in M's first-failure 
period.
    (5) Penalty deductions imposed under Sec. 404.453 not considered. A 
failure to make a timely report of earnings as required by Sec. 404.452 
for which a penalty deduction is imposed under Sec. 404.453 is not 
counted as a failure to report in determining the first or subsequent 
failure to report noncovered remunerative activity outside the United 
States or not having care of a child.
    (d) Limitation on amount of penalty deduction. Notwithstanding the 
provisions described in paragraph (b) of this section, the amount of the 
penalty deduction imposed for failure to make a timely report of 
noncovered remunerative activity outside the United States or for 
failure to report not having care of a child may not exceed the number 
of months in that failure period for which the individual received and 
accepted a benefit and for which a deduction is imposed by reason of his 
noncovered remunerative activity outside the United States or failure to 
have care of a child. (See Sec. 404.458 for other limitations on the 
amount of the penalty deduction.)

[38 FR 3596, Feb. 8, 1973, as amended at 38 FR 9430, Apr. 16, 1973]



Sec. 404.452  Reports to Social Security Administration of earnings; wages; net earnings from self-employment.

    (a) Conditions under which a report of earnings, wages, and net 
earnings from self-employment is required. An individual who, during a 
taxable year, is entitled to a monthly benefit (except if in each month 
of his taxable year he was entitled only to a disability insurance 
benefit) is required to report to the Social Security Administration the 
total amount of his earnings (as defined in Sec. 404.429) for each such 
taxable year. A report is required when the individual's total earnings 
or wages (as defined in Sec. 404.429) for any taxable year ending after 
1972 exceed the product of $175 multiplied by the number of months in 
his taxable year, except that the report is not required for a taxable 
year if:
    (1) The individual attained the age of 72 in or before the first 
month of his entitlement to benefits in his taxable year, or
    (2) The individual's benefit payments were suspended under the 
provisions described in Sec. 404.456 for all months in a taxable year in 
which he was entitled to benefits and was under age 72.
    (b) Time within which report must be filed. The report for any 
taxable year beginning after 1954 shall be filed with the Social 
Security Administration on or before the 15th day of the fourth month 
following the close of the taxable year; for example, April 15 when the 
beneficiary's taxable year is a calendar year. (See Sec. 404.3(c) where 
the last day for filing the report falls on 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 by statute or Executive order.) The 
filing of an income tax return with the Internal Revenue Service is not 
such a report as is required to be filed under the provisions of this 
section even where the income tax return shows the same wages and net 
earnings

[[Page 167]]

from self-employment that must be reported to the Administration under 
this section.
    (c) Report required by person receiving benefits on behalf of 
another. Where a person is receiving benefits on behalf of a beneficiary 
(see subpart U of this part), it is his duty to make the report to the 
Administration required by this section.
    (d) Report to be made on forms prescribed by the Social Security 
Administration. A report required under the provisions of this section 
shall be filed with the Social Security Administration. (See 
Sec. 404.608 for procedures concerning place of filing and date of 
receipt of such a report.) The report shall be made on a form prescribed 
by the Social Security Administration and in accordance with the 
instructions printed on or attached to the form. The prescribed forms 
may be obtained from any office of the Social Security Administration. 
If the prescribed form is not used, the report should show the name and 
social security claim number of the beneficiary about whom the report is 
made; identify the taxable year for which the report is made; show the 
total amount of wages for which the beneficiary rendered services during 
his taxable year, the amount of his net earnings from self-employment 
for such year, and the amount of his net loss from self-employment for 
such year; and show the name and address of the individual making the 
report. To overcome the presumptions that the beneficiary rendered 
services for wages exceeding the allowable amount and rendered 
substantial services in self-employment in each month (see 
Sec. 404.435), the report should also show the specific months in which 
the beneficiary did not render services in employment for wages of more 
than the allowable amount (as described in Sec. 404.435) and did not 
render substantial services in self-employment (as described in 
Secs. 404.446 and 404.447).
    (e) Requirement to furnish requested information. A beneficiary, or 
the person reporting on his behalf, is required to furnish any other 
information about the beneficiary's earnings and services that the 
Administration requests for the purpose of determining the correct 
amount of benefits payable for a taxable year (see Sec. 404.455).
    (f) Extension of time for filing report--(1) General. 
Notwithstanding the provision described in paragraph (b) of this 
section, the Administration may grant a reasonable extension of time for 
making the report of earnings required under this section if it finds 
that there is valid reason for a delay, but in no case may the period be 
extended more than 4 months for any taxable year.
    (2) Requirements applicable to requests for extensions. Before his 
annual report of earnings is due, a beneficiary may request an extension 
of time for filing his report. The request must meet all of these 
requirements:
    (i) Be in writing, and
    (ii) Be made by the beneficiary, his representative payee, or his 
authorized agent,
    (iii) Be made before the required report is overdue (If an extension 
of time already has been granted, a request for further extension must 
be made before the due date as extended previously),
    (iv) Be made to an office of the Administration,
    (v) Name the beneficiary for whom the annual report must be made and 
furnish his claim number,
    (vi) Identify the year for which an annual report is due and for 
which an extension of time is requested,
    (vii) Explain in the requester's own words the reasons why an 
extension of time is needed, and how much extended time is needed,
    (viii) Show the date the request is made, and
    (ix) Be signed by the requester.
    (3) Valid reason defined. A valid reason is a bona fide need, 
problem, or situation which makes it impossible or difficult for a 
beneficiary (or his representative payee) to meet the annual report due 
date prescribed by law. This may be illness or disability of the one 
required to make the report, absence or travel so far from home that he 
does not have and cannot readily obtain the records needed for making 
his report, inability to obtain evidence required from another source 
when such evidence is necessary in making the report, inability of his 
accountant to compile the data needed for the annual report, or any 
similar situation which

[[Page 168]]

has a direct bearing on the individual's ability to comply with his 
reporting obligation within the specified time limit.
    (4) Evidence that extension of time has been granted. In the absence 
of written evidence of a properly approved extension of time for making 
an annual report of earnings, it will be presumed that no extension of 
filing time was granted. In such case it will be necessary for the 
beneficiary to establish whether he otherwise had good cause 
(Sec. 404.454) for filing his annual report after the normal due date.

[32 FR 19159, Dec. 20, 1967, as amended at 38 FR 9430, Apr. 16, 1973; 43 
FR 8133, Feb. 28, 1978; 51 FR 10616, Mar. 28, 1986; 60 FR 56513, Nov. 9, 
1995]



Sec. 404.453  Penalty deductions for failure to report earnings timely.

    (a) Penalty for failure to report earnings; general. Penalty 
deductions are imposed against an individual's benefits, in addition to 
the deductions required because of his excess earnings (see 
Sec. 404.415), if:
    (1) He fails to make a timely report of his earnings as specified in 
Sec. 404.452 for a taxable year beginning after 1954;
    (2) It is found that good cause for failure to report earnings 
timely (see Sec. 404.454) does not exist;
    (3) A deduction is imposed because of his earnings (see 
Sec. 404.415) for that year; and
    (4) He received and accepted any payment of benefits for that year.
    (b) Determining amount of penalty deduction. The amount of the 
penalty deduction for failure to report earnings for a taxable year 
within the prescribed time is determined as follows:
    (1) First failure to file timely report. The penalty deduction for 
the first failure to file a timely report is an amount equal to the 
individual's benefit or benefits for the last month for which he was 
entitled to such benefit or benefits during the taxable year, except 
that with respect to any deductions imposed on or after January 2, 1968, 
if the amount of the deduction imposed for the taxable year is less than 
the benefit or benefits for the last month of the taxable year for which 
he was entitled to a benefit under section 202 of the Act, the penalty 
deduction is an amount equal to the amount of the deduction imposed but 
not less than $10.
    (2) Second failure to file timely report. The penalty deduction for 
the second failure to file a timely report is an amount equal to twice 
the amount of the individual's benefit or benefits for the last month 
for which he was entitled to such benefit or benefits during such 
taxable year.
    (3) Subsequent failures to file timely reports. The penalty 
deduction for the third or subsequent failure to file a timely report is 
an amount equal to three times the amount of the individual's benefit or 
benefits for the last month for which he was entitled to such benefit or 
benefits during such taxable year.
    (c) Determining whether a failure to file a timely report is first, 
second, or subsequent failure--(1) No prior failure. Where no penalty 
deduction under this section has previously been imposed against the 
beneficiary for failure to make a timely report of his earnings, all 
taxable years (and this may include 2 or more years) for which a report 
of earnings is overdue as of the date the first delinquent report is 
made are included in the first failure. The latest of such years for 
which good cause for failure to make the required report (see 
Sec. 404.454) is not found is considered the first failure to file a 
timely report.
    Example  X became entitled to benefits in 1964 and had reportable 
earnings for 1964, 1965, and 1966. He did not make his annual reports 
for those years until July 1967. At that time it was found that 1966 was 
the only year for which he has good cause for not making a timely report 
of his earnings. Since all taxable years for which a report is overdue 
as of the date of the first delinquent report are included in the first 
failure period, it was found that his first failure to make a timely 
report was for 1965. The penalty is equal to his December 1965 benefit 
rate. If good cause had also been found for both 1965 and 1964, then X 
would have no prior failure within the meaning of this subsection.
    (2) Second and subsequent failures. After one penalty deduction 
under paragraph (b) of this section has been imposed against an 
individual, each taxable year for which a timely report of earnings is 
not made (and the count commences with reports of earnings which become 
delinquent after the date the first delinquent report described in 
paragraph (c)(1) of this section was

[[Page 169]]

made), and for which good cause for failure to make the required report 
is not found, is considered separately in determining whether the 
failure is the second or subsequent failure to report timely.
    Example  Y incurred a penalty deduction for not making his 1963 
annual report until July 1964. In August 1966 it was found that he had 
not made a timely report of either his 1964 or 1965 earnings, and good 
cause was not present with respect to either year. The penalty for 1964 
is equal to twice his benefit rate for December 1964. The penalty for 
1965 is equal to three times his benefit rate for December 1965.
    (3) Penalty deduction imposed under Sec. 404.451 not considered. A 
failure to make a report as required by Sec. 404.450, for which a 
penalty deduction is imposed under Sec. 404.451, is not counted as a 
failure to report in determining, under this section, whether a failure 
to report earnings or wages is the first or subsequent failure to 
report.
    (d) Limitation on amount of penalty deduction. Notwithstanding the 
provisions described in paragraph (b) of this section, the amount of the 
penalty deduction imposed for failure to file a timely report of 
earnings for a taxable year may not exceed the number of months in that 
year for which the individual received and accepted a benefit and for 
which deductions are imposed by reason of his earnings for such year. 
(See Sec. 404.458 for other limitations on the amount of the penalty 
deduction.)

[32 FR 19159, Dec. 20, 1967, as amended at 38 FR 3597, Feb. 8, 1973; 38 
FR 9431, Apr. 16, 1973]



Sec. 404.454  Good cause for failure to make required reports.

    (a) General. The failure of an individual to make a timely report 
under the provisions described in Secs. 404.450 and 404.452 will not 
result in a penalty deduction if the individual establishes to the 
satisfaction of the Administration that his failure to file a timely 
report was due to good cause. Before making any penalty determination as 
described in Secs. 404.451 and 404.453, the individual shall be advised 
of the penalty and good cause provisions and afforded an opportunity to 
establish good cause for failure to report timely. The failure of the 
individual to submit evidence to establish good cause within a specified 
time may be considered a sufficient basis for a finding that good cause 
does not exist (see Sec. 404.705). In determining whether good cause for 
failure to report timely has been established by the individual, 
consideration is given to whether the failure to report within the 
proper time limit was the result of untoward circumstances, misleading 
action of the Social Security Administration, confusion as to the 
requirements of the Act resulting from amendments to the Act or other 
legislation, or any physical, mental, educational, or linguistic 
limitations (including any lack of facility with the English language) 
the individual may have. For example, good cause may be found where 
failure to file a timely report was caused by:
    (1) Serious illness of the individual, or death or serious illness 
in his immediate family;
    (2) Inability of the individual to obtain, within the time required 
to file the report, earnings information from his employer because of 
death or serious illness of the employer or one in the employer's 
immediate family; or unavoidable absence of his employer; or destruction 
by fire or other damage of the employer's business records;
    (3) Destruction by fire, or other damage, of the individual's 
business records;
    (4) Transmittal of the required report within the time required to 
file the report, in good faith to another Government agency even though 
the report does not reach the Administration until after the period for 
reporting has expired;
    (5) Unawareness of the statutory provision that an annual report of 
earnings is required for the taxable year in which the individual 
attained age 72 provided his earnings for such year exceeded the 
applicable amount, e.g., $1,680 for a 12-month taxable year ending after 
December 1967;
    (6) Failure on the part of the Administration to furnish forms in 
sufficient time for an individual to complete and file the report on or 
before the date it was due, provided the individual made a timely 
request to the Administration for the forms;
    (7) Belief that an extension of time for filing income tax returns 
granted by the Internal Revenue Service was

[[Page 170]]

also applicable to the annual report to be made to the Social Security 
Administration;
    (8) Reliance upon a written report to the Social Security 
Administration made by, or on behalf of, the beneficiary before the 
close of the taxable year, if such report contained sufficient 
information about the beneficiary's earnings or work, to require 
suspension of his benefits (see Sec. 404.456) and the report was not 
subsequently refuted or rescinded; or
    (9) Failure of the individual to understand reporting 
responsibilities due to his or her physical, mental, educational, or 
linguistic limitation(s).
    (b) Notice of determination. In every case in which it is determined 
that a penalty deduction should be imposed, the individual shall be 
advised of the penalty determination and of his reconsideration rights. 
If it is found that good cause for failure to file a timely report does 
not exist, the notice will include an explanation of the basis for this 
finding; the notice will also explain the right to partial adjustment of 
the overpayment, in accordance with the provisions of Sec. 404.502(c).
    (c) Good cause for subsequent failure. Where circumstances are 
similar and an individual fails on more than one occasion to make a 
timely report, good cause normally will not be found for the second or 
subsequent violation.

[38 FR 3597, Feb. 8, 1973, as amended at 43 FR 8133, Feb. 28, 1978; 59 
FR 1634, Jan. 12, 1994]



Sec. 404.455  Request by Social Security Administration for reports of earnings and estimated earnings; effect of failure to comply with request.

    (a) Request by Social Security Administration for report during 
taxable year; effect of failure to comply. The Social Security 
Administration may, during the course of a taxable year, request a 
beneficiary to estimate his or her earnings (as defined in Sec. 404.429) 
for the current taxable year and for the next taxable year, and to 
furnish any other information about his or her earnings that the Social 
Security Administration may specify. If a beneficiary fails to comply 
with a request for an estimate of earnings for a taxable year, the 
beneficiary's failure, in itself, constitutes justification under 
section 203(h) of the Act for a determination that it may reasonably be 
expected that the beneficiary will have deductions imposed under the 
provisions described in Sec. 404.415, due to his or her earnings for 
that taxable year. Furthermore, the failure of the beneficiary to comply 
with a request for an estimate of earnings for a taxable year will, in 
itself, constitute justification for the Social Security Administration 
to use the preceding taxable year's estimate of earnings (or, if 
available, reported earnings) to suspend payment of benefits for the 
current or next taxable year.
    (b) Request by Social Security Administration for report after close 
of taxable year; failure to comply. After the close of his or her 
taxable year, the Social Security Administration may request a 
beneficiary to furnish a report of his or her earnings for the closed 
taxable year and to furnish any other information about his or her 
earnings for that year that the Social Security Administration may 
specify. If he or she fails to comply with this request, this failure 
shall, in itself, constitute justification under section 203(h) of the 
Act for a determination that the beneficiary's benefits are subject to 
deductions as described in Sec. 404.415 for each month in the taxable 
year (or only for the months thereof specified by the Social Security 
Administration).

[56 FR 11373, Mar. 18, 1991]



Sec. 404.456  Current suspension of benefits because an individual works or engages in self-employment.

    (a) Circumstances under which benefit payments may be suspended. If, 
on the basis of information obtained by or submitted to the 
Administration, it is determined that an individual entitled to monthly 
benefits for any taxable year may reasonably be expected to have 
deductions imposed against his benefits (as described in Sec. 404.415) 
by reason of his earnings for such year, the Administration may, before 
the close of the taxable year, suspend all or part, as the 
Administration may specify, of the benefits payable to the individual 
and to all other persons entitled (or deemed entitled--see Sec. 404.420) 
to benefits on the basis of the individual's earnings record.

[[Page 171]]

    (b) Duration of suspension. The suspension described in paragraph 
(a) of this section shall remain in effect with respect to the benefits 
for each month until the Administration has determined whether or not 
any deduction under Sec. 404.415 applies for such month.
    (c) When suspension of benefits becomes final. For taxable years 
beginning after August 1958, if benefit payments were suspended (as 
described in paragraph (a) of this section) for all months of 
entitlement in an individual's taxable year, no benefit payment for any 
month in that year may be made after the expiration of the period of 3 
years, 3 months, and 15 days following the close of the individual's 
taxable year unless, within that period, the individual, or any person 
entitled to benefits based on his earnings record, files with the 
Administration information showing that a benefit for a month is payable 
to the individual. Subject to the limitations of this paragraph, a 
determination about deductions may be reopened under the circumstances 
described in Sec. 404.957.



Sec. 404.457  Deductions where taxes neither deducted from wages of certain maritime employees nor paid.

    (a) When deduction is required. A deduction is required where:
    (1) An individual performed services after September 1941 and before 
the termination of Title I of the First War Powers Act, 1941, on or in 
connection with any vessel as an officer or crew member; and
    (2) The services were performed in the employ of the United States 
and employment was through the War Shipping Administration or, for 
services performed before February 11, 1942, through the United States 
Maritime Commission; and
    (3) The services, under the provisions described in Sec. 403.803(d) 
of this chapter (Regulations No. 3 of the Social Security 
Administration), constituted employment for purposes of title II of the 
Social Security Act; and
    (4) The taxes imposed (by section 1400 of the Internal Revenue Code 
of 1939, as amended) with respect to such services were neither deducted 
from the individual's wages nor paid by the employer.
    (b) Amount of deduction. The deduction required by paragraph (a) of 
this section is an amount equal to 1 percent of the wages with respect 
to which the taxes described in paragraph (a)(4) of this section were 
neither deducted nor paid by the employer.
    (c) How deduction is made. The deduction required by paragraph (a) 
of this section is made by withholding an amount as determined under 
paragraph (b) of this section from any monthly benefit or lump-sum death 
payment based on the earnings record of the individual who performed the 
services described in paragraph (a) of this section.



Sec. 404.458  Limiting deductions where total family benefits payable would not be affected or would be only partly affected.

    Notwithstanding the provisions described in Secs. 404.415, 404.417, 
404.421, 404.422, 404.451, and 404.453 about the amount of the deduction 
to be imposed for a month, no such deduction is imposed for a month when 
the benefits payable for that month to all persons entitled to benefits 
on the same earnings record and living in the same household remain 
equal to the maximum benefits payable to them on that earnings record. 
Where making such deductions and increasing the benefits to others in 
the household (for the month in which the deduction event occurred) 
would give members of the household less than the maximum (as determined 
under Sec. 404.404) payable to them, the amount of deduction imposed is 
reduced to the difference between the maximum amount of benefits payable 
to them and the total amount which would have been paid if the benefits 
of members of the household not subject to deductions were increased for 
that month. The individual subject to the deduction for such month may 
be paid the difference between the deduction so reduced and his benefit 
as adjusted under Sec. 404.403 (without application of Sec. 404.402(a)). 
All other persons in the household are paid, for such month, their 
benefits as adjusted under Sec. 404.403 without application of 
Sec. 404.402(a).

[47 FR 43673, Oct. 4, 1982]

[[Page 172]]



Sec. 404.460  Nonpayment of monthly benefits of aliens outside the United States.

    (a) Nonpayment of monthly benefits to aliens outside the United 
States more than 6 months. Except as described in paragraph (b) and 
subject to the limitations in paragraph (c) of this section after 
December 1956 no monthly benefit may be paid to any individual who is 
not a citizen or national of the United States, for any month after the 
sixth consecutive calendar month during all of which he is outside the 
United States, and before the first calendar month for all of which he 
is in the United States after such absence. (See Sec. 404.380 regarding 
special payments at age 72.)
    (1) For nonpayment of benefits under this section, it is necessary 
that the beneficiary be an alien and while an alien be outside the 
United States for more than six full consecutive calendar months. In 
determining whether at the time of a beneficiary's initial entitlement 
to benefits he has been outside the United States for a period exceeding 
six full consecutive calendar months, not more than the six calendar 
months immediately preceding the month of initial entitlement may be 
considered. For the purposes of this section, outside the United States 
means outside the territorial boundaries of the 50 States, the District 
of Columbia, Puerto Rico, the Virgin Islands of the United States, Guam, 
and American Samoa.
    (2) Effective with 6-month periods beginning after January 2, 1968, 
after an alien has been outside the United States for any period of 30 
consecutive days, he is deemed to be outside the United States 
continuously until he has returned to the United States and remained in 
the United States for a period of 30 consecutive days.
    (3) Payments which have been discontinued pursuant to the provisions 
of this section will not be resumed until the alien beneficiary has been 
in the United States for a full calendar month. A full calendar month 
includes 24 hours of each day of the calendar month.
    (4) Nonpayment of benefits to an individual under this section does 
not cause nonpayment of benefits to other persons receiving benefits 
based on the individual's earnings record.
    Example  R, an alien, leaves the United States on August 15, 1967, 
and returns on February 1, 1968. He leaves again on February 15, 1968, 
and does not return until May 15, 1968, when he spends 1 day in the 
United States. He has been receiving monthly benefits since July 1967.
    R's first 6-month period of absence begins September 1, 1967. Since 
this period begins before January 2, 1968, his visit (Feb. 1, 1968, to 
Feb. 15, 1968) to the United States for less than 30 consecutive days is 
sufficient to break this 6-month period.
    R's second 6-month period of absence begins March 1, 1968. Since 
this period begins after January 2, 1968, and he was outside the United 
States for 30 consecutive days, he must return and spend 30 consecutive 
days in the United States prior to September 1, 1968, to prevent 
nonpayment of benefits beginning September 1968. If R fails to return to 
the United States for 30 consecutive days prior to September 1, 1968, 
payments will be discontinued and will not be resumed until R spends at 
least 1 full calendar month in the United States.
    (b) When nonpayment provisions do not apply. The provisions 
described in paragraph (a) of this section do not apply, subject to the 
limitations in paragraph (c) of this section, to a benefit for any month 
if:
    (1) The individual was, or upon application would have been, 
entitled to a monthly benefit for December 1956, based upon the same 
earnings record; or
    (2)(i) The individual upon whose earnings the benefit is based, 
before that month, has resided in the United States for a period or 
periods aggregating 10 years or more or has earned not less than 40 
quarters of coverage;
    (ii) Except that, effective with the month of July 1968, the 
provisions of paragraph (b)(2)(i) of this section do not apply if (a) 
the beneficiary is a citizen of a country having a social insurance or 
pension system which meets the conditions described in paragraphs (b)(7) 
(i), (ii), and (iii) of this section but does not meet the condition 
described in paragraph (b)(7)(iv) of this section, or (b) the 
beneficiary is a citizen of a country that has no social insurance or 
pension system of general application if at any time within 5 years 
prior to January 1968 (or the first month after December 1967 in which 
his

[[Page 173]]

benefits are subject to suspension pursuant to paragraph (a) of this 
section) payments to individuals residing in such country were withheld 
by the Treasury Department under the first section of the Act of October 
9, 1940 (31 U.S.C. 123) (see paragraph (c) of this section);
    (iii) For purposes of this subparagraph a period of residence begins 
with the day the insured individual arrives in the United States with 
the intention of establishing at least a temporary home here; it 
continues so long as he maintains an attachment to an abode in the 
United States, accompanied by actual physical presence in the United 
States for a significant part of the period; and ends with the day of 
departure from the United States with the intention to reside elsewhere; 
or
    (3) The individual is outside the United States while in the active 
military or naval service of the United States; or
    (4) The individual on whose earnings the benefit is based died 
before that month and:
    (i) Death occurred while the individual was on active duty or 
inactive duty training as a member of a uniformed service, or
    (ii) Death occurred after the individual was discharged or released 
from a period of active duty or inactive duty training as a member of a 
uniformed service, and the Administrator of Veterans' Affairs 
determines, and certifies to the Secretary, that the discharge or 
release was under conditions other than dishonorable and that death was 
as a result of a disease or injury incurred or aggravated in line of 
duty while on active duty or inactive duty training; or
    (5) The individual on whose earnings record the benefit is based 
worked in service covered by the Railroad Retirement Act, and such work 
is treated as employment covered by the Social Security Act under the 
provisions described in subpart O of this part; or
    (6) The nonpayment of monthly benefits under the provisions 
described in paragraph (a) of this section would be contrary to a treaty 
obligation of the United States in effect on August 1, 1956 (see 
Sec. 404.463(b)); or
    (7) The individual is a citizen of a foreign country that the 
Secretary determines has in effect a social insurance or pension system 
(see Sec. 404.463) which meets all of the following conditions:
    (i) Such system pays periodic benefits or the actuarial equivalent 
thereof; and
    (ii) The system is of general application; and
    (iii) Benefits are paid in this system on account of old age, 
retirement, or death; and
    (iv) Individuals who are citizens of the United States but not 
citizens of the foreign country and who qualify for such benefits are 
permitted to receive benefits without restriction or qualification, at 
their full rate, or the actuarial equivalent thereof, while outside of 
the foreign country and without regard to the duration of their absence 
therefrom.
    (c) Nonpayment of monthly benefits to aliens residing in certain 
countries--(1) Benefits for months after June 1968. Notwithstanding the 
provisions of paragraphs (a) and (b) of this section, no monthly benefit 
may be paid for any month after June 1968 to any individual who is not a 
citizen or national of the United States for any month such individual 
resides in a country to which payments to individuals in such country 
are being withheld by the Treasury Department pursuant to the first 
section of the Act of October 9, 1940 (31 U.S.C. 123).
    (2) Benefits for months before July 1968. If any benefits which an 
individual who is not a citizen or national of the United States was 
entitled to receive under title II of the Social Security Act are, on 
June 30, 1968, being withheld by the Treasury Department pursuant to the 
first section of the Act of October 9, 1940 (31 U.S.C. 123), upon 
removal of the restriction such benefits, payable to such individual for 
months after the month in which the determination by the Treasury 
Department that the benefits should be so withheld was made, shall not 
be paid--
    (i) To any person other than such individual, or, if such individual 
dies before such benefits can be paid, to any person other than an 
individual who was entitled for the month in which the deceased 
individual died (with the

[[Page 174]]

application of section 202(j)(1) of the Social Security Act) to a 
monthly benefit under title II of such Act on the basis of the same 
wages and self-employment income as such deceased individual; or
    (ii) In excess of an amount equal to the amount of the last 12 
months' benefits that would have been payable to such individual.
    (3) List of countries under Treasury Department alien payment 
restriction. Pursuant to the provisions of the first section of the Act 
of October 9, 1940 (31 U.S.C. 123) the Treasury Department is currently 
withholding payments to individuals residing in the following countries. 
Further additions to or deletions from the list of countries will be 
published in the Federal Register.

Cuba
Democratic Kampuchea (formerly Cambodia)
North Korea
Vietnam

    (d) Nonpayment of monthly benefits to certain aliens entitled to 
benefits on a worker's earnings record. An individual who after December 
31, 1984 becomes eligible for benefits on the earnings record of a 
worker for the first time, is an alien, has been outside the United 
States for more than 6 consecutive months, and is qualified to receive a 
monthly benefit by reason of the provisions of paragraphs (b)(2), 
(b)(3), (b)(5), or (b)(7) of this section, must also meet a U.S. 
residence requirement described in this section to receive benefits:
    (1) An alien entitled to benefits as a child of a living or deceased 
worker--
    (i) Must have resided in the U.S. for 5 or more years as the child 
of the parent on whose earnings record entitlement is based; or
    (ii) The parent on whose earnings record the child is entitled and 
the other parent, if any, must each have either resided in the United 
States for 5 or more years or died while residing in the U.S.
    (2) An alien who meets the requirements for child's benefits based 
on paragraph (d)(1) of this section above, whose status as a child is 
based on an adoptive relationship with the living or deceased worker, 
must also--
    (i) Have been adopted within the United States by the worker on 
whose earnings record the child's entitlement is based; and
    (ii) Have lived in the United States with, and received one-half 
support from, the worker for a period, beginning prior to the child's 
attainment of age 18, of
    (A) At least one year immediately before the month in which the 
worker became eligible for old-age benefits or disability benefits or 
died (whichever occurred first), or
    (B) If the worker had a period of disability which continued until 
the worker's entitlement to old-age or disability benefits or death, at 
least one year immediately before the month in which that period of 
disability began.
    (3) An alien entitled to benefits as a spouse, surviving spouse, 
divorced spouse, surviving divorced spouse, or surviving divorced mother 
or father must have resided in the United States for 5 or more years 
while in a spousal relationship with the person on whose earnings record 
the entitlement is based. The spousal relationship over the required 
period can be that of wife, husband, widow, widower, divorced wife, 
divorced husband, surviving divorced wife, surviving divorced husband, 
surviving divorced mother, surviving divorced father, or a combination 
of two or more of these categories.
    (4) An alien who is entitled to parent's benefits must have resided 
in the United States for 5 or more years as a parent of the person on 
whose earnings record the entitlement is based.
    (5) Individuals eligible for benefits before January 1, 1985 
(including those eligible for one category of benefits on a particular 
worker's earnings record after December 31, 1984, but also eligible for 
a different category of benefits on the same worker's earnings record 
before January 1, 1985), will not have to meet the residency 
requirement.
    (6) Definitions applicable to paragraph (d) of this section are as 
follows:
    Eligible for benefits means that an individual satisfies the 
criteria described in subpart D of this part for benefits at a 
particular time except that the person need not have applied for those 
benefits at that time.
    Other parent for purposes of paragraph (d)(1)(ii) of this section 
means any other living parent who is of the

[[Page 175]]

opposite sex of the worker and who is the adoptive parent by whom the 
child was adopted before the child attained age 16 and who is or was the 
spouse of the person on whose earnings record the child is entitled; or 
the natural mother or natural father of the child; or the step-parent of 
the child by a marriage, contracted before the child attained age 16, to 
the natural or adopting parent on whose earnings record the child is 
entitled. (Note: Based on this definition, a child may have more than 
one living other parent. However, the child's benefit will be payable 
for a month if in that month he or she has one other parent who had 
resided in the U.S. for at least 5 years.)
    Resided in the United States for satisfying the residency 
requirement means presence in the United States with the intention of 
establishing at least a temporary home. A period of residence begins 
upon arrival in the United States with that intention and continues so 
long as an attachment to an abode in the United States is maintained, 
accompanied by actual physical presence in the United States for a 
significant part of the period, and ending the day of departure from the 
United States with the intention to reside elsewhere. The period need 
not have been continuous and the requirement is satisfied if the periods 
of U.S. residence added together give a total of 5 full years.
    (7) The provisions described in paragraph (d) of this section shall 
not apply if the beneficiary is a citizen or resident of a country with 
which the United States has a totalization agreement in force, except to 
the extent provided by that agreement.

[32 FR 19159, Dec. 20, 1967, as amended at 34 FR 13366, Aug. 19, 1969; 
52 FR 8249, Mar. 17, 1987; 52 FR 26145, July 13, 1987; 60 FR 17445, Apr. 
6, 1995]



Sec. 404.461  Nonpayment of lump sum after death of alien outside United States for more than 6 months.

    Where an individual dies outside the United States after January 
1957 and no monthly benefit was or could have been paid to him for the 
month preceding the month in which he died because of the provisions 
described in Sec. 404.460, no lump-sum death payment may be made upon 
the basis of the individual's earnings record.



Sec. 404.462  Nonpayment of hospital and medical insurance benefits of alien outside United States for more than 6 months.

    No payments may be made under part A (hospital insurance benefits) 
of title XVIII for items or services furnished to an individual in any 
month for which the prohibition described in Sec. 404.460 against 
payment of benefits to an individual outside the United States for more 
than six full consecutive calendar months is applicable (or would be if 
he were entitled to any such benefits). Also, no payments may be made 
under part B (supplementary medical insurance benefits) of title XVIII 
for expenses incurred by an individual during any month the individual 
is not paid a monthly benefit by reason of the provisions described in 
Sec. 404.460 or for which no monthly benefit would be paid if he were 
otherwise entitled thereto.



Sec. 404.463  Nonpayment of benefits of aliens outside the United States; ``foreign social insurance system,'' and ``treaty obligation'' exceptions defined.

    (a) Foreign social insurance system exception. The following 
criteria are used to evaluate the social insurance or pension system of 
a foreign country to determine whether the exception described in 
Sec. 404.460(b) to the alien nonpayment provisions applies:
    (1) Social insurance or pension system. A social insurance system 
means a governmental plan which pays benefits as an earned right, on the 
basis either of contributions or work in employment covered under the 
plan, without regard to the financial need of the beneficiary. However, 
a plan of this type may still be regarded as a social insurance system 
though it may provide, in a subordinate fashion, for a supplemental 
payment based on need. A pension system means a governmental plan which 
pays benefits based on residence or age, or a private employer's plan 
for which the government has set up uniform standards for coverage, 
contributions, eligibility, and benefit amounts provided that, in both 
of these types of plans,

[[Page 176]]

the financial need of the beneficiary is not a consideration.
    (2) In effect. The social insurance or pension system of the foreign 
country must be in effect. This means that the foreign social insurance 
or pension system is in full operation with regard to taxes (or 
contributions) and benefits, or is in operation with regard to taxes (or 
contributions), and provision is made for payments to begin immediately 
upon the expiration of the period provided in the law for acquiring 
earliest eligibility. It is not in effect if the law leaves the 
beginning of operation to executive or other administrative action; nor 
is it in effect if the law has been temporarily suspended.
    (3) General application. The term of general application means that 
the social insurance or pension system (or combination of systems) 
covers a substantial portion of the paid labor force in industry and 
commerce, taking into consideration the industrial classification and 
size of the paid labor force and the population of the country, as well 
as occupational, size of employer, and geographical limitations on 
coverage.
    (4) Periodic benefit or actuarial equivalent. The term periodic 
benefit means a benefit payable at stated regular intervals of time such 
as weekly, biweekly, or monthly. Actuarial equivalent of a periodic 
benefit means the commutation of the value of the periodic benefit into 
a lump-sum payment, taking life expectancy and interest into account.
    (5) Benefits payable on account of old age, retirement, or death. 
The requirement that benefits be payable on account of old age, 
retirement, or death, is satisfied if the foreign social insurance plan 
or system includes provision for payment of benefits to aged or retired 
persons and to dependents and survivors of covered workers. The 
requirement is also met where the system pays benefits based only on old 
age or retirement. The requirement is not met where the only benefits 
payable are workmen's compensation payments, cash sickness payments, 
unemployment compensation payments, or maternity insurance benefits.
    (6) System under which U.S. citizens who qualify may receive payment 
while outside the foreign country. The foreign social insurance or 
pension system must permit payments to qualified U.S. citizens while 
outside such foreign country, regardless of the duration of their 
absence therefrom and must make the payments without restriction or 
qualification to these U.S. citizens at full rate, or at the full 
actuarial value. The foreign system is considered to pay benefits at the 
full rate if the U.S. citizen receives the full benefit rate in effect 
for qualified beneficiaries at the time of his award, whether he is then 
inside or outside the paying country; and he continues to receive the 
same benefit amount so long as he remains outside that country, even 
though he may not receive any increases going into effect after his 
award provided that in those other countries in which such increases are 
denied to beneficiaries, they are denied to all beneficiaries including 
nationals of the paying country.
    (7) List of countries which meet the social insurance or pension 
system exception in section 202(t)(2) of the act. The following 
countries have been found to have in effect a social insurance or 
pension system which meets the requirements of section 202(t)(2) of the 
Act. Unless otherwise specified, each country meets such requirements 
effective January 1957. The effect of these findings is that 
beneficiaries who are citizens of such countries and not citizens of the 
United States may be paid benefits regardless of the duration of their 
absence from the United States unless for months beginning after June 
1968 they are residing in a country to which payments to individuals are 
being withheld by the Treasury Department pursuant to the first section 
of the Act of October 9, 1940 (31 U.S.C. 123). Further additions to or 
deletions from the list of countries will be published in the Federal 
Register.

Antigua and Barbuda (effective November 1981)
Argentina (effective July 1968)
Austria (except from January 1958 through June 1961)
Bahamas, Commonwealth of the (effective October 1974)
Barbados (effective July 1968)
Belgium (effective July 1968)
Belize (effective September 1981)
Bolivia
Brazil

[[Page 177]]

Burkina Faso, Republic of (formerly Upper Volta)
Canada (effective January 1966)
Chile
Colombia (effective January 1967)
Costa Rica (effective May 1962)
Cyprus (effective October 1964)
Czechoslovakia (effective July 1968)
Denmark (effective April 1964)
Dominica (effective November 1978)
Dominican Republic (effective November 1984)
Ecuador
El Salvador (effective January 1969)
Finland (effective May 1968)
France (effective June 1968)
Gabon (effective June 1964)
Grenada (effective April 1983)
Guatemala (effective October 1978)
Guyana (effective September 1969)
Iceland (effective December 1980)
Ivory Coast
Jamaica (effective July 1968)
Liechtenstein (effective July 1968)
Luxembourg
Malta (effective September 1964)
Mexico (effective March 1968)
Monaco
Netherlands (effective July 1968)
Nicaragua (effective May 1986)
Norway (effective June 1968)
Panama
Peru (effective February 1969)
Philippines (effective June 1960)
Poland (effective March 1957)
Portugal (effective May 1968)
San Marino (effective January 1965)
Spain (effective May 1966)
St. Christopher and Nevis (effective September 1983)
St. Lucia (effective August 1984)
Sweden (effective July 1966)
Switzerland (effective July 1968)
Trinidad and Tobago (effective July 1975)
Trust Territory of the Pacific Islands (Micronesia) (effective July 
1976)
Turkey
United Kingdom
Western Samoa (effective August 1972)
Yugoslavia
Zaire (effective July 1961) (formerly Congo (Kinshasa))

    (b) The ``treaty obligation'' exception. It is determined that the 
Treaties of Friendship, Commerce, and Navigation now in force between 
the United States and the Federal Republic of Germany, Greece, the 
Republic of Ireland, Israel, Italy, and Japan, respectively, create 
treaty obligations precluding the application of Sec. 404.460(a) to 
citizens of such countries; and that the Treaty of Friendship, Commerce, 
and Navigation now in force between the United States and the Kingdom of 
the Netherlands creates treaty obligations precluding the application of 
Sec. 404.460(a) to citizens of that country with respect to monthly 
survivors benefits only. There is no treaty obligation that would 
preclude the application of Sec. 404.460(a) to citizens of any country 
other than those listed above.

[32 FR 19159, Dec. 20, 1967, as amended at 43 FR 2628, Jan. 18, 1978; 52 
FR 8249, Mar. 17, 1987]



Sec. 404.464  Nonpayment of benefits where individual is deported; prohibition against payment of lump sum based on deported individual's earnings records.

    (a) Old-age or disability insurance benefits. When an individual is 
deported under the provisions of section 241(a) of the Immigration and 
Nationality Act (other than under paragraph (1)(C) or (1)(E) thereof), 
no old-age or disability insurance benefit is payable to the individual 
for any month occurring after the month in which the Secretary is 
notified by the Attorney General of the United States that the 
individual has been deported and before the month in which the 
individual is thereafter lawfully admitted to the United States for 
permanent residence. An individual is considered lawfully admitted for 
permanent residence as of the month he enters the United States with 
permission to reside here permanently.
    (b) Other monthly benefits. If, under the provisions described in 
paragraph (a) of this section, no old-age or disability insurance 
benefit is payable to an individual for a month, no monthly insurance 
benefit is payable for that month, based upon the individual's earnings 
record, to any other person who is not a citizen of the United States 
and who is outside the United States for any part of that month.
    (c) Lump sum death payment. No lump-sum death payment is payable on 
the basis of the earnings of an individual deported under section 241(a) 
of the Immigration and Nationality Act (other than paragraph (1)(C) or 
(1)(E) thereof) if the individual dies in or after the month in which 
the Secretary receives notice that he has been deported and before the 
month in which the individual is thereafter lawfully

[[Page 178]]

admitted to the United States for permanent residence.

[32 FR 19159, Dec. 20, 1967, as amended at 58 FR 64889, Dec. 10, 1993]



Sec. 404.465  Conviction for subversive activities; effect on monthly benefits and entitlement to hospital insurance benefits.

    (a) Effect of conviction. Where an individual is convicted of any 
offense (committed after August 1, 1956) under chapter 37 (relating to 
espionage and censorship), chapter 105 (relating to sabotage), or 
chapter 115 (relating to treason, sedition, and subversive activities) 
of title 18 U.S.C., or under section 4, 112, or 113 of the Internal 
Security Act of 1950, as amended, the court, in addition to all other 
penalties provided by law, may order that, in determining whether any 
monthly benefit is payable to the individual for the month in which he 
is convicted or for any month thereafter, and in determining whether the 
individual is entitled to hospital insurance benefits under part A of 
title XVIII for any such month, and in determining the amount of the 
benefit for that month, the following are not to be taken into account:
    (1) Any wages paid to such individual, or to any other individual, 
in the calendar quarter in which such conviction occurred or in any 
prior calendar quarter, and
    (2) Any net earnings from self-employment derived by the individual, 
or any other individual, during the taxable year in which the conviction 
occurred or during any prior taxable year.
    (b) Recalculation of benefit. When notified by the Attorney General 
that the additional penalty as described in paragraph (a) of this 
section has been imposed against any individual entitled to benefits 
under section 202 or section 223 of the Act (see subpart D), the 
Administration, for the purposes of determining the individual's 
entitlement to such benefits as of the month in which convicted and the 
amount of the benefit, will exclude the applicable wages and net 
earnings in accordance with the order of the court.
    (c) Effect of pardon. In the event that an individual, with respect 
to whom the additional penalty as described in paragraph (a) of this 
section has been imposed, is granted a pardon of the offense by the 
President of the United States, such penalty is not applied in 
determining such individual's entitlement to benefits, and the amount of 
such benefit, for any month beginning after the date on which the pardon 
is granted.



Sec. 404.466  Conviction for subversive activities; effect on enrollment for supplementary medical insurance benefits.

    An individual may not enroll under part B (supplementary medical 
insurance benefits) of title XVIII if he has been convicted of any 
offense described in Sec. 404.465.



Sec. 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.

    (a) Disability insurance benefits. An individual who has attained 
age 55 and who meets the definition of disability for disability 
insurance benefits purposes based on statutory blindness, as defined in 
Sec. 404.1581, may be entitled to disability insurance benefits for 
months in which he is engaged in certain types of substantial gainful 
activity. No payment, however, may be made to the individual or to 
beneficiaries entitled to benefits on his earnings record for any month 
in which such individual engages in any type of substantial gainful 
activity.
    (b) Childhood disability benefits. An individual who has attained 
age 55 and who meets the definition of disability prescribed in 
Sec. 404.1583 for childhood disability benefits on the basis of 
statutory blindness may be entitled to childhood disability benefits for 
months in which he engages in certain types of substantial gainful 
activity. However, no payment may be made to such individual for any 
month after December 1972 in which such individual engages in 
substantial gainful activity.

[39 FR 43715, Dec. 18, 1974, as amended at 51 FR 10616, Mar. 28, 1986]

[[Page 179]]



Sec. 404.468  Nonpayment of benefits to prisoners.

    (a) General. No monthly benefits will be paid to any individual for 
any month any part of which the individual is confined in a jail, 
prison, or other penal institution or correctional facility for 
conviction of a felony. This rule applies to disability benefits 
(Sec. 404.315) and child's benefits based on disability (Sec. 404.350) 
effective with benefits payable for months beginning on or after October 
1, 1980. For all other monthly benefits, this rule is effective with 
benefits payable for months beginning on or after May 1, 1983. However, 
it applies only to the prisoner; benefit payments to any other person 
who is entitled on the basis of the prisoner's wages and self-employment 
income are payable as though the prisoner were receiving benefits.
    (b) Felonious offenses. An offense will be considered a felony if--
    (1) It is a felony under applicable law: or
    (2) In a jurisdiction which does not classify any crime as a felony, 
it is an offense punishable by death or imprisonment for a term 
exceeding one year.
    (c) Confinement. In general, a jail, prison, or other penal 
institution or correctional facility is a facility which is under the 
control and jurisdiction of the agency in charge of the penal system or 
in which convicted criminals can be incarcerated. Confinement in such a 
facility continues as long as the individual is under a sentence of 
confinement and has not been released due to parole or pardon. An 
individual is considered confined even though he or she is temporarily 
or intermittently outside of that facility (e.g., on work release, 
attending school, or hospitalized).
    (d) Vocational rehabilitation exception. The nonpayment provision of 
paragraph (a) of this section does not apply if a prisoner who is 
entitled to benefits on the basis of disability is actively and 
satisfactorily participating in a rehabilitation program which has been 
specifically approved for the individual by court of law. In addition, 
the Secretary must determine that the program is expected to result in 
the individual being able to do substantial gainful activity upon 
release and within a reasonable time. No benefits will be paid to the 
prisoner for any month prior to the approval of the program.

[49 FR 48182, Dec. 11, 1984]



Sec. 404.469  Nonpayment of benefits where individual has not furnished or applied for a Social Security number.

    No monthly benefits will be paid to an entitled individual unless he 
or she either furnishes to the Social Security Administration (SSA) 
satisfactory proof of his or her Social Security number, or, if the 
individual has not been assigned a number, he or she makes a proper 
application for a number (see Sec. 422.103). An individual submits 
satisfactory proof of his or her Social Security number by furnishing to 
SSA the number and sufficient additional information that can be used to 
determine whether that Social Security number or another number has been 
assigned to the individual. Sufficient additional information may 
include the entitled individual's date and place of birth, mother's 
maiden name, and father's name. If the individual does not know his or 
her Social Security number, SSA will use this additional information to 
determine the Social Security number, if any, that it assigned to the 
individual. This rule applies to individuals who become entitled to 
benefits beginning on or after June 1, 1989.

[56 FR 41789, Aug. 23, 1991]



Sec. 404.470  Nonpayment of disability benefits due to noncompliance with rules regarding treatment for drug addiction or alcoholism.

    (a) Suspension of monthly benefits. (1) For an individual entitled 
to benefits based on a disability (Sec. 404.1505) and for whom drug 
addiction or alcoholism is a contributing factor material to the 
determination of disability (as described in Sec. 404.1535), monthly 
benefits will be suspended beginning with the first month after we 
notify the individual in writing that he or she has been determined not 
to be in compliance with the treatment requirements for such individuals 
(Sec. 404.1536).
    (2) This rule applies to all individuals entitled to disability 
benefits (Sec. 404.315), widow(er)'s benefits

[[Page 180]]

(Sec. 404.335), and child's benefits based on a disability 
(Sec. 404.350) effective with benefits paid in months beginning on or 
after March 1, 1995.
    (3) Benefit payments to any other person who is entitled on the 
basis of a disabled wage earner's entitlement to disability benefits are 
payable as though the disabled wage earner were receiving benefits.
    (b) Resumption of monthly benefits. The payment of benefits may be 
resumed only after an individual demonstrates and maintains compliance 
with appropriate treatment requirements for:
    (1) 2 consecutive months for the first determination of 
noncompliance;
    (2) 3 consecutive months for the second determination of 
noncompliance; and
    (3) 6 consecutive months for the third and all subsequent 
determinations of noncompliance.
    (c) Termination of benefits. (1) A suspension of benefit payments 
due to noncompliance with the treatment requirements for 12 consecutive 
months will result in termination of benefits effective with the first 
month following the 12th month of suspension of benefits.
    (2) Benefit payments to any other person who is entitled on the 
basis of a disabled wage earner's entitlement to disability benefits are 
payable as though the disabled wage earner were receiving benefits.

[60 FR 8146, Feb. 10, 1995]



Sec. 404.480  Paying benefits in installments: Drug addiction or alcoholism.

    (a) General. For disabled beneficiaries who receive benefit payments 
through a representative payee because drug addiction or alcoholism is a 
contributing factor material to the determination of disability (as 
described in Sec. 404.1535), certain amounts due the beneficiary for a 
past period will be paid in installments. The amounts subject to payment 
in installments include:
    (1) Benefits due but unpaid which accrued prior to the month payment 
was effectuated;
    (2) Benefits due but unpaid which accrued during a period of 
suspension for which the beneficiary was subsequently determined to have 
been eligible; and
    (3) Any adjustment to benefits which results in an accrual of unpaid 
benefits.
    (b) Installment formula. Except as provided in paragraph (c) of this 
section, the amount of the installment payment in any month is limited 
so that the sum of (1) the amount due for a past period (and payable 
under paragraph (a) of this section) paid in such month and (2) the 
amount of any benefit due for the preceding month under such entitlement 
which is payable in such month, does not exceed two times the amount of 
the beneficiary's benefit payment for the preceding month. In counting 
the amount of the beneficiary's benefit payment for the previous month, 
no reductions or deductions under this title are taken into account.
    (c) Exception to installment limitation. An exception to the 
installment payment limitation in paragraph (b) of this section can be 
granted for the first month in which a beneficiary accrues benefit 
amounts subject to payment in installments if the beneficiary has unpaid 
housing expenses which result in a high risk of homelessness for the 
beneficiary. In that case, the benefit payment may be increased by the 
amount of the unpaid housing expenses so long as that increase does not 
exceed the amount of benefits which accrued during the most recent 
period of nonpayment. We consider a person to be at risk of homelessness 
if continued nonpayment of the outstanding housing expenses is likely to 
result in the person losing his or her place to live or if past 
nonpayment of housing expenses has resulted in the person having no 
appropriate personal place to live. In determining whether this 
exception applies, we will ask for evidence of outstanding housing 
expenses that shows that the person is likely to lose or has already 
lost his or her place to live. For purposes of this section, 
homelessness is the state of not being under the control of any public 
institution and having no appropriate personal place to live. Housing 
expenses include charges for all items required to maintain shelter (for 
example, mortgage payments, rent, heating fuel, and electricity).

[[Page 181]]

    (d) Payment through a representative payee. If the beneficiary does 
not have a representative payee, payment of amounts subject to 
installments cannot be made until a representative payee is selected.
    (e) Underpaid beneficiary no longer entitled. In the case of a 
beneficiary who is no longer currently entitled to monthly payments, but 
to whom amounts defined in paragraph (a) of this section are still 
owing, we will treat such beneficiary's monthly benefit for the last 
month of entitlement as the beneficiary's benefit for the preceding 
month and continue to make installment payments of such benefits through 
a representative payee.
    (f) Beneficiary currently not receiving Social Security benefits 
because of suspension for noncompliance with treatment. If a beneficiary 
is currently not receiving benefits because his or her benefits have 
been suspended for noncompliance with treatment (as defined in 
Sec. 404.1536), the payment of amounts under paragraph (a) of this 
section will stop until the beneficiary has demonstrated compliance with 
treatment as described in Sec. 404.470 and will again commence with the 
first month the beneficiary begins to receive benefit payments.
    (g) Underpaid beneficiary deceased. Upon the death of a beneficiary, 
any remaining unpaid amounts as defined in paragraph (a) of this section 
will be treated as underpayments in accordance with Sec. 404.503(b).

[60 FR 8146, Feb. 10, 1995]



Subpart F--Overpayments, Underpayments, Waiver of Adjustment or Recovery 
         of Overpayments, and Liability of a Certifying Officer

    Authority:  Secs. 204(a)-(d), 205(a), and 702(a)(5) of the Social 
Security Act (42 U.S.C. 404(a)-(d), 405(a), and 902(a)(5)); 31 U.S.C. 
3720A.



Sec. 404.501  General applicability of section 204 of the Act.

    (a) In general. Section 204 of the Act provides for adjustment as 
set forth in Secs. 404.502 and 404.503, in cases where an individual has 
received more or less than the correct payment due under title II of the 
Act. As used in this subpart, the term overpayment includes a payment in 
excess of the amount due under title II of the Act, a payment resulting 
from the failure to impose deductions or to suspend or reduce benefits 
under sections 203, 222(b), 224, and 228(c), and (d), and (e) of the Act 
(see subpart E of this part), a payment pursuant to section 205(n) of 
the Act in an amount in excess of the amount to which the individual is 
entitled under section 202 or 223 of the Act, a payment resulting from 
the failure to terminate benefits, and a payment where no amount is 
payable under title II of the Act. The term underpayment as used in this 
subpart refers only to monthly insurance benefits and includes 
nonpayment where some amount of such benefits was payable. An 
underpayment may be in the form of an accrued unpaid benefit amount for 
which no check has been drawn or in the form of an unnegotiated check 
payable to a deceased individual. The provisions for adjustment also 
apply in cases where through error:
    (1) A reduction required under section 202(j)(1), 202(k)(3), 203(a), 
or 205(n) of the Act is not made, or
    (2) An increase or decrease required under section 202(d)(2), or 215 
(f) or (g) of the Act is not made, or
    (3) A deduction required under section 203(b) (as may be modified by 
the provisions of section 203(h)), 203(c), 203(d), 203(i), 222(b), or 
223(a)(1)(D) of the Act or section 907 of the Social Security Amendments 
of 1939 is not made, or
    (4) A suspension required under section 202(n) or 202(t) of the Act 
is not made, or
    (5) A reduction under section 202(q) of the Act is not made, or
    (6) A reduction, increase, deduction, or suspension is made which is 
either more or less than required, or
    (7) A payment in excess of the amount due under title XVIII of the 
Act was made to or on behalf of an individual (see 42 CFR 405.350 
through 405.351) entitled to benefits under title II of the Act, or
    (8) A payment of past due benefits is made to an individual and such 
payment had not been reduced by the

[[Page 182]]

amount of attorney's fees payable directly to an attorney under section 
206 of the Act (see Sec. 404.977).
    (9) A reduction under Sec. 404.408b is made which is either more or 
less than required.
    (b) Payments made on the basis of an erroneous report of death. Any 
monthly benefit or lump sum paid under title II of the Act on the basis 
of an erroneous report by the Department of Defense of the death of an 
individual in the line of duty while such individual was a member of the 
uniformed services (as defined in section 210(m) of the Act) on active 
duty (as defined in section 210(l) of the Act) is deemed a correct 
payment for any month prior to the month such Department notifies the 
Administration that such individual is alive.
    (c) Payments made by direct deposit to a financial institution. When 
a payment in excess of the amount due under title II of the Act is made 
by direct deposit to a financial institution to or on behalf of an 
individual who has died, and the financial institution credits the 
payment to a joint account of the deceased individual and another person 
who was entitled to a monthly benefit on the basis of the same earnings 
record as the deceased individual for the month before the month in 
which the deceased individual died, the amount of the payment in excess 
of the correct amount will be an overpayment to the other person.

[34 FR 14887, Sept. 27, 1969, as amended at 44 FR 34942, June 18, 1979; 
47 FR 4988, Feb. 3, 1982; 48 FR 46149, Oct. 11, 1983; 55 FR 7313, Mar. 
1, 1990]



Sec. 404.502  Overpayments.

    Upon determination that an overpayment has been made, adjustments 
will be made against monthly benefits and lump sums as follows:
    (a) Individual overpaid is living. (1) If the individual to whom an 
overpayment was made is at the time of a determination of such 
overpayment entitled to a monthly benefit or a lump sum under title II 
of the Act, or at any time thereafter becomes so entitled, no benefit 
for any month and no lump sum is payable to such individual, except as 
provided in paragraphs (c) and (d) of this section, until an amount 
equal to the amount of the overpayment has been withheld or refunded. 
Such adjustments will be made against any monthly benefit or lump sum 
under title II of the Act to which such individual is entitled whether 
payable on the basis of such individual's earnings or the earnings of 
another individual.
    (2) If any other individual is entitled to benefits for any month on 
the basis of the same earnings as the overpaid individual, except as 
adjustment is to be effected pursuant to paragraphs (c) and (d) of this 
section by withholding a part of the monthly benefit of either the 
overpaid individual or any other individual entitled to benefits on the 
basis of the same earnings, no benefit for any month will be paid on 
such earnings to such other individual until an amount equal to the 
amount of the overpayment has been withheld or refunded.
    (b) Individual overpaid dies before adjustment. If an overpaid 
individual dies before adjustment is completed under the provisions of 
paragraph (a) of this section, no lump sum and no subsequent monthly 
benefit will be paid on the basis of earnings which were the basis of 
the overpayment to such deceased individual until full recovery of the 
overpayment has been effected, except as provided in paragraphs (c) and 
(d) of this section or under Sec. 404.515. Such recovery may be effected 
through:
    (1) Payment by the estate of the deceased overpaid individual,
    (2) Withholding of amounts due the estate of such individual under 
title II of the Act,
    (3) Withholding a lump sum or monthly benefits due any other 
individual on the basis of the same earnings which were the basis of the 
overpayment to the deceased overpaid individual, or
    (4) Any combination of the amount above.
    (c) Adjustment by withholding part of a monthly benefit. (1) Where 
it is determined that withholding the full amount each month would 
defeat the purpose of title II, i.e., deprive the person of income 
required for ordinary and necessary living expenses (see Sec. 404.508), 
adjustment under paragraphs (a) and (b) of this section may be effected 
by withholding an amount of not less than

[[Page 183]]

$10 of the monthly benefit payable to an individual.
    (2) Adjustment as provided by this paragraph will not be available 
if the overpayment was caused by the individual's intentional false 
statement or representation, or willful concealment of, or deliberate 
failure to furnish, material information. In such cases, recovery of the 
overpayment will be accomplished as provided in paragraph (a) of this 
section.
    (d) Individual overpaid enrolled under supplementary insurance plan. 
Notwithstanding the provisions of paragraphs (a), (b), and (c) of this 
section, if the individual liable for the overpayment is an enrollee 
under part B of title XVIII of the Act and the overpayment was not 
caused by such individual's intentional false statement or 
representation, or willful concealment of, or deliberate failure to 
furnish, material information, an amount of such individual's monthly 
benefit which is equal to his obligation for supplementary medical 
insurance premiums will be applied toward payment of such premiums, and 
the balance of the monthly benefit will be applied toward recovery of 
the overpayment. Further adjustment with respect to such balance may be 
made if the enrollee so requests and meets the conditions of paragraph 
(c) of this section.

[35 FR 5943, Apr. 10, 1970, as amended at 44 FR 20653, Apr. 6, 1979]



Sec. 404.502a  Notice of right to waiver consideration.

    Whenever an initial determination is made that more than the correct 
amount of payment has been made, and we seek adjustment or recovery of 
the overpayment, the individual from whom we are seeking adjustment or 
recovery is immediately notified. The notice includes:
    (a) The overpayment amount and how and when it occurred;
    (b) A request for full, immediate refund, unless the overpayment can 
be withheld from the next month's benefit;
    (c) The proposed adjustment of benefits if refund is not received 
within 30 days after the date of the notice and adjustment of benefits 
is available;
    (d) An explanation of the availability of a different rate of 
withholding when full withholding is proposed, installment payments when 
refund is requested and adjustment is not currently available, and/or 
cross-program recovery when refund is requested and the individual is 
receiving another type of payment from SSA (language about cross-program 
recovery is not included in notices sent to individuals in jurisdictions 
where this recovery option is not available);
    (e) An explanation of the right to request waiver of adjustment or 
recovery and the automatic scheduling of a file review and pre-
recoupment hearing (commonly referred to as a personal conference) if a 
request for waiver cannot be approved after initial paper review;
    (f) An explanation of the right to request reconsideration of the 
fact and/or amount of the overpayment determination;
    (g) Instructions about the availability of forms for requesting 
reconsideration and waiver;
    (h) An explanation that if the individual does not request waiver or 
reconsideration within 30 days of the date of the overpayment notice, 
adjustment or recovery of the overpayment will begin;
    (i) A statement that an SSA office will help the individual complete 
and submit forms for appeal or waiver requests; and
    (j) A statement that the individual receiving the notice should 
notify SSA promptly if reconsideration, waiver, a lesser rate of 
withholding, repayment by installments or cross-program adjustment is 
wanted.

[61 FR 56131, Oct. 31, 1996]



Sec. 404.503  Underpayments.

    Underpayments will be adjusted as follows:
    (a) Individual underpaid is living. If an individual to whom an 
underpayment is due is living, the amount of such underpayment will be 
paid to such individual either in a single payment (if he is not 
entitled to a monthly benefit or a lump-sum death payment) or by 
increasing one or more monthly benefits or a lump-sum death payment to

[[Page 184]]

which such individual is or becomes entitled.
    (b) Individual dies before adjustment of underpayment. If an 
individual to whom an underpayment is due dies before receiving payment 
or negotiating a check or checks representing such payment, such 
underpayment will be distributed to the living person (or persons) in 
the highest order of priority as follows:
    (1) The deceased individual's surviving spouse as defined in section 
216(c), (g), or (h) of the Act who was either:
    (i) Living in the same household (as defined in Sec. 404.347) with 
the deceased individual at the time of such individual's death, or
    (ii) Entitled to a monthly benefit on the basis of the same earnings 
record as was the deceased individual for the month in which such 
individual died.
    (2) The child or children of the deceased individual (as defined in 
section 216(e) or (h) of the Act) entitled to a monthly benefit on the 
basis of the same earnings record as was the deceased individual for the 
month in which such individual died (if more than one such child, in 
equal shares to each such child).
    (3) The parent or parents of the deceased individual, entitled to a 
monthly benefit on the basis of the same earnings record as was the 
deceased individual for the month in which such individual died (if more 
than one such parent, in equal shares to each such parent). For this 
purpose, the definition of ``parent'' in Sec. 404.374 includes the 
parent(s) of any deceased individual who was entitled to benefits under 
title II of the Act.
    (4) The surviving spouse of the deceased individual (as defined in 
section 216(c), (g), or (h) of the Act) who does not qualify under 
paragraph (b)(1) of this section.
    (5) The child or children of the deceased individual (as defined in 
section 216(e) or (h) of the Act) who do not qualify under paragraph 
(b)(2) of this section (if more than one such child, in equal shares to 
each such child).
    (6) The parent or parents of the deceased individual, who do not 
qualify under paragraph (b)(3) of this section (if more than one such 
parent, in equal shares to each such parent). For this purpose, the 
definition of ``parent'' in Sec. 404.374 includes the parent(s) of any 
deceased individual who was entitled to benefits under title II of the 
Act.
    (7) The legal representative of the estate of the deceased 
individual as defined in paragraph (d) of this section.
    (c) In the event that a person who is otherwise qualified to receive 
an underpayment under the provisions of paragraph (b) of this section, 
dies before receiving payment or before negotiating the check or checks 
representing such payment, his share of the underpayment will be divided 
among the remaining living person(s) in the same order of priority. In 
the event that there is (are) no other such person(s), the underpayment 
will be paid to the living person(s) in the next lower order of priority 
under paragraph (b) of this section.
    (d) Definition of legal representative. The term legal 
representative, for the purpose of qualifying to receive an 
underpayment, generally means the administrator or executor of the 
estate of the deceased individual. However, it may also include an 
individual, institution or organization acting on behalf of an 
unadministered estate, provided that such person can give the 
Administration good acquittance (as defined in paragraph (e) of this 
section). The following persons may qualify as legal representative for 
the purposes of this subpart, provided they can give the Administration 
good acquittance:
    (1) A person who qualifies under a State's small estate statute,
    (2) A person resident in a foreign country who, under the laws and 
customs of that country, has the right to receive assets of the estate,
    (3) A public administrator, or
    (4) A person who has the authority, under applicable law, to collect 
the assets of the estate of the deceased individual.
    (e) Definition of ``good acquittance.'' A person is considered to 
give the Administration good acquittance when payment to that person 
will release the Administration from further liability for such payment.

[34 FR 14487, Sept. 27, 1969, as amended at 35 FR 14129, Sept. 5, 1970; 
55 FR 7313, Mar. 1, 1990; 60 FR 17445, Apr. 6, 1995]

[[Page 185]]



Sec. 404.504  Relation to provisions for reductions and increases.

    The amount of an overpayment or underpayment is the difference 
between the amount paid to the beneficiary and the amount of the payment 
to which the beneficiary was actually entitled. Such payment, for 
example, would be equal to the difference between the amount of a 
benefit in fact paid to the beneficiary and the amount of such benefit 
as reduced under section 202(j)(1), 202(k)(3), 203(a), or 224(a), or as 
increased under section 202(d)(2), 202(m), or 215(f) and (g). In 
effecting an adjustment with respect to an overpayment, no amount can be 
considered as having been withheld from a particular benefit which is in 
excess of the amount of such benefit as so decreased.

[34 FR 14888, Sept. 27, 1969]



Sec. 404.505  Relationship to provisions requiring deductions.

    Adjustments required by any of the provisions in this subpart F are 
made in addition to, but after, any deductions required by section 
202(t), 203(b), 203(c), 203(d), and 222(b) of the Act, or section 907 of 
the Social Security Act Amendments of 1939, and before any deductions 
required by section 203(g) or 203(h)(2) of the Act.

[34 FR 14888, Sept. 27, 1969]



Sec. 404.506  When waiver may be applied and how to process the request.

    (a) Section 204(b) of the Act provides that there shall be no 
adjustment or recovery in any case where an overpayment under title II 
has been made to an individual who is without fault if adjustment or 
recovery would either defeat the purpose of title II of the Act, or be 
against equity and good conscience.
    (b) If an individual requests waiver of adjustment or recovery of a 
title II overpayment within 30 days after receiving a notice of 
overpayment that contains the information in Sec. 404.502a, no 
adjustment or recovery action will be taken until after the initial 
waiver determination is made. If the individual requests waiver more 
than 30 days after receiving the notice of overpayment, SSA will stop 
any adjustment or recovery actions until after the initial waiver 
determination is made.
    (c) When waiver is requested, the individual gives SSA information 
to support his/her contention that he/she is without fault in causing 
the overpayment (see Sec. 404.507) and that adjustment or recovery would 
either defeat the purpose of title II of the Act (see Sec. 404.508) or 
be against equity and good conscience (see Sec. 404.509). That 
information, along with supporting documentation, is reviewed to 
determine if waiver can be approved. If waiver cannot be approved after 
this review, the individual is notified in writing and given the dates, 
times and place of the file review and personal conference; the 
procedure for reviewing the claims file prior to the personal 
conference; the procedure for seeking a change in the scheduled dates, 
times, and/or place; and all other information necessary to fully inform 
the individual about the personal conference. The file review is always 
scheduled at least 5 days before the personal conference.
    (d) At the file review, the individual and the individual's 
representative have the right to review the claims file and applicable 
law and regulations with the decisionmaker or another SSA representative 
who is prepared to answer questions. We will provide copies of material 
related to the overpayment and/or waiver from the claims file or 
pertinent sections of the law or regulations that are requested by the 
individual or the individual's representative.
    (e) At the personal conference, the individual is given the 
opportunity to:
    (1) Appear personally, testify, cross-examine any witnesses, and 
make arguments;
    (2) Be represented by an attorney or other representative (see 
Sec. 404.1700), although the individual must be present at the 
conference; and
    (3) Submit documents for consideration by the decisionmaker.
    (f) At the personal conference, the decisionmaker:
    (1) Tells the individual that the decisionmaker was not previously 
involved in the issue under review, that the waiver decision is solely 
the decisionmaker's, and that the waiver decision is based only on the 
evidence

[[Page 186]]

or information presented or reviewed at the conference;
    (2) Ascertains the role and identity of everyone present;
    (3) Indicates whether or not the individual reviewed the claims 
file;
    (4) Explains the provisions of law and regulations applicable to the 
issue;
    (5) Briefly summarizes the evidence already in file which will be 
considered;
    (6) Ascertains from the individual whether the information presented 
is correct and whether he/she fully understands it;
    (7) Allows the individual and the individual's representative, if 
any, to present the individual's case;
    (8) Secures updated financial information and verification, if 
necessary;
    (9) Allows each witness to present information and allows the 
individual and the individual's representative to question each witness;
    (10) Ascertains whether there is any further evidence to be 
presented;
    (11) Reminds the individual of any evidence promised by the 
individual which has not been presented;
    (12) Lets the individual and the individual's representative, if 
any, present any proposed summary or closing statement;
    (13) Explains that a decision will be made and the individual will 
be notified in writing; and
    (14) Explains repayment options and further appeal rights in the 
event the decision is adverse to the individual.
    (g) SSA issues a written decision to the individual (and his/her 
representative, if any) specifying the findings of fact and conclusions 
in support of the decision to approve or deny waiver and advising of the 
individual's right to appeal the decision. If waiver is denied, 
adjustment or recovery of the overpayment begins even if the individual 
appeals.
    (h) If it appears that the waiver cannot be approved, and the 
individual declines a personal conference or fails to appear for a 
second scheduled personal conference, a decision regarding the waiver 
will be made based on the written evidence of record. Reconsideration is 
then the next step in the appeals process (but see Sec. 404.930(a)(7)).

[61 FR 56131, Oct. 31, 1996]



Sec. 404.507  Fault.

    Fault as used in without fault (see Sec. 404.506 and 42 CFR 405.355) 
applies only to the individual. Although the Administration may have 
been at fault in making the overpayment, that fact does not relieve the 
overpaid individual or any other individual from whom the Administration 
seeks to recover the overpayment from liability for repayment if such 
individual is not without fault. In determining whether an individual is 
at fault, the Social Security Administration will consider all pertinent 
circumstances, including the individual's age and intelligence, and any 
physical, mental, educational, or linguistic limitations (including any 
lack of facility with the English language) the individual has. What 
constitutes fault (except for deduction overpayments--see Sec. 404.510) 
on the part of the overpaid individual or on the part of any other 
individual from whom the Administration seeks to recover the overpayment 
depends upon whether the facts show that the incorrect payment to the 
individual or to a provider of services or other person, or an incorrect 
payment made under section 1814(e) of the Act, resulted from:
    (a) An incorrect statement made by the individual which he knew or 
should have known to be incorrect; or
    (b) Failure to furnish information which he knew or should have 
known to be material; or
    (c) With respect to the overpaid individual only, acceptance of a 
payment which he either knew or could have been expected to know was 
incorrect.

[34 FR 14888, Sept. 27, 1969; 34 FR 15646, Oct. 9, 1969, as amended at 
44 FR 34942, June 18, 1979; 59 FR 1634, Jan. 12, 1994]



Sec. 404.508  Defeat the purpose of Title II.

    (a) General. Defeat the purpose of title II, for purposes of this 
subpart, means defeat the purpose of benefits under this title, i.e., to 
deprive a person of income required for ordinary and necessary living 
expenses. This depends upon whether the person has an income or 
financial resources sufficient for more than ordinary and necessary 
needs, or is dependent upon all of his

[[Page 187]]

current benefits for such needs. An individual's ordinary and necessary 
expenses include:
    (1) Fixed living expenses, such as food and clothing, rent, mortgage 
payments, utilities, maintenance, insurance (e.g., life, accident, and 
health insurance including premiums for supplementary medical insurance 
benefits under title XVIII), taxes, installment payments, etc.;
    (2) Medical, hospitalization, and other similar expenses;
    (3) Expenses for the support of others for whom the individual is 
legally responsible; and
    (4) Other miscellaneous expenses which may reasonably be considered 
as part of the individual's standard of living.
    (b) When adjustment or recovery will defeat the purpose of title II. 
Adjustment or recovery will defeat the purposes of title II in (but is 
not limited to) situations where the person from whom recovery is sought 
needs substantially all of his current income (including social security 
monthly benefits) to meet current ordinary and necessary living 
expenses.

[32 FR 18026, Dec. 16, 1967, as amended at 34 FR 14888, Sept. 27, 1969]



Sec. 404.509  Against equity and good conscience; defined.

    (a) Recovery of an overpayment is against equity and good conscience 
(under title II and title XVIII) if an individual--
    (1) Changed his or her position for the worse (Example 1) or 
relinquished a valuable right (Example 2) because of reliance upon a 
notice that a payment would be made or because of the overpayment 
itself; or
    (2) Was living in a separate household from the overpaid person at 
the time of the overpayment and did not receive the overpayment 
(Examples 3 and 4).
    (b) The individual's financial circumstances are not material to a 
finding of against equity and good conscience.
    Example 1.  A widow, having been awarded benefits for herself and 
daughter, entered her daughter in private school because the monthly 
benefits made this possible. After the widow and her daughter received 
payments for almost a year, the deceased worker was found to be not 
insured and all payments to the widow and child were incorrect. The 
widow has no other funds with which to pay the daughter's private school 
expenses. Having entered the daughter in private school and thus 
incurred a financial obligation toward which the benefits had been 
applied, she was in a worse position financially than if she and her 
daughter had never been entitled to benefits. In this situation, the 
recovery of the payments would be against equity and good conscience.
    Example 2.  After being awarded old-age insurance benefits, an 
individual resigned from employment on the assumption he would receive 
regular monthly benefit payments. It was discovered 3 years later that 
(due to a Social Security Administration error) his award was erroneous 
because he did not have the required insured status. Due to his age, the 
individual was unable to get his job back and could not get any other 
employment. In this situation, recovery of the overpayments would be 
against equity and good conscience because the individual gave up a 
valuable right.
    Example 3.  M divorced K and married L. M died a few years later. 
When K files for benefits as a surviving divorced wife, she learns that 
L had been overpaid $3,200 on M's earnings record. Because K and L are 
both entitled to benefits on M's record of earnings and we could not 
recover the overpayment from L, we sought recovery from K. K was living 
in a separate household from L at the time of the overpayment and did 
not receive the overpayment. K requests waiver of recovery of the $3,200 
overpayment from benefits due her as a surviving divorced wife of M. In 
this situation, it would be against equity and good conscience to 
recover the overpayment from K.
    Example 4.  G filed for and was awarded benefits. His daughter, T, 
also filed for student benefits on G's earnings record. Since T was an 
independent, full-time student living in another State, she filed for 
benefits on her own behalf. Later, after T received 12 monthly benefits, 
the school reported that T had been a full-time student only 2 months 
and had withdrawn from school. Since T was overpaid 10 monthly benefits, 
she was requested to return the overpayment to SSA. T did not return the 
overpayment and further attempts to collect the overpayment were 
unsuccessful. G was asked to repay the overpayment because he was 
receiving benefits on the same earnings record. G requested waiver. To 
support his waiver request G established that he was not at fault in 
causing the overpayment because he did not know that T was receiving 
benefits. Since G is without fault and, in addition, meets the 
requirements of not living in the same household at the time of the 
overpayment and did not receive the overpayment, it would be

[[Page 188]]

against equity and good conscience to recover the overpayment from G.

[53 FR 25483, July 7, 1988]



Sec. 404.510  When an individual is ``without fault'' in a deduction overpayment.

    In determining whether an individual is ``without fault'' with 
respect to a deduction overpayment, the Social Security Administration 
will consider all pertinent circumstances, including the individual's 
age and intelligence, and any physical, mental, educational, or 
linguistic limitations (including any lack of facility with the English 
language) the individual has. Except as provided in Sec. 404.511 or 
elsewhere in this subpart F, situations in which an individual will be 
considered to be ``without fault'' with respect to a deduction 
overpayment include, but are not limited to, those that are described in 
this section. An individual will be considered ``without fault'' in 
accepting a payment which is incorrect because he/she failed to report 
an event specified in sections 203 (b) and (c) of the Act, or an event 
specified in section 203(d) of the Act as in effect for monthly benefits 
for months after December 1960, or because a deduction is required under 
section 203 (b), (c), (d), or section 222(b) of the Act, or payments 
were not withheld as required by section 202(t) or section 228 of the 
Act, if it is shown that such failure to report or acceptance of the 
overpayment was due to one of the following circumstances:
    (a) Reasonable belief that only his net cash earnings (take-home 
pay) are included in determining the annual earnings limitation or the 
monthly earnings limitation under section 203(f) of the Act.
    (b) Reliance upon erroneous information from an official source 
within the Social Security Administration (or other governmental agency 
which the individual had reasonable cause to believe was connected with 
the administration of benefits under title II of the Act) with respect 
to the interpretation of a pertinent provision of the Social Security 
Act or regulations pertaining thereto. For example, this circumstance 
could occur where the individual is misinformed by such source as to the 
interpretation of a provision in the Act or regulations relating to 
deductions, or relating to the effect of residence of an alien outside 
the United States for more than 6 months.
    (c) The beneficiary's death caused the earnings limit applicable to 
his earnings for purposes of deduction and the charging of excess 
earnings to be reduced below $1,680 for a taxable year ending after 
1967.
    (d) [Reserved]
    (e) Reasonable belief that in determining, for deduction purposes, 
his earnings from employment and/or net earnings from self-employment in 
the taxable year in which he became entitled to benefits, earnings in 
such year prior to such entitlement would be excluded. However, this 
provision does not apply if his earnings in the taxable year, beginning 
with the first month of entitlement, exceeded the earnings limitation 
amount for such year.
    (f) Unawareness that his earnings were in excess of the earnings 
limitation applicable to the imposition of deductions and the charging 
of excess earnings or that he should have reported such excess where 
these earnings were greater than anticipated because of:
    (1) Retroactive increases in pay, including back-pay awards;
    (2) Work at a higher pay rate than realized;
    (3) Failure of the employer of an individual unable to keep accurate 
records to restrict the amount of earnings or the number of hours worked 
in accordance with a previous agreement with such individual;
    (4) The occurrence of five Saturdays (or other work days, e.g., five 
Mondays) in a month and the earnings for the services on the fifth 
Saturday or other work day caused the deductions.
    (g) The continued issuance of benefit checks to him after he sent 
notice to the Administration of the event which caused or should have 
caused the deductions provided that such continued issuance of checks 
led him to believe in good faith that he was entitled to checks 
subsequently received.
    (h) Lack of knowledge that bonuses, vacation pay, or similar 
payments, constitute earnings for purposes of the annual earnings 
limitation.
    (i) [Reserved]

[[Page 189]]

    (j) Reasonable belief that earnings in excess of the earnings 
limitation amount for the taxable year would subject him to deductions 
only for months beginning with the first month in which his earnings 
exceeded the earnings limitation amount. However, this provision is 
applicable only if he reported timely to the Administration during the 
taxable year when his earnings reached the applicable limitation amount 
for such year.
    (k) Lack of knowledge by a wife, husband, or child entitled to 
wife's, husband's, or child's insurance benefits, as the case may be, 
that the individual entitled to old-age insurance benefits on the same 
earnings record has incurred or would incur deductions because of a 
violation of the annual earnings or 7-day foreign work test, whichever 
is applicable, provided the wife, husband, or child is not living with 
such old-age insurance beneficiary and did not know and had no reason to 
know that such beneficiary's earnings activity or the income derived 
therefrom has caused or would cause such deductions.
    (l) Reasonable belief, with respect to earnings activity for months 
after December 1982, that net earnings from self-employment after 
attainment of age 70 (age 72 for months after December 1972 and before 
January 1983) in the taxable year in which such age was attained would 
not cause deductions (see Sec. 404.430(a)) with respect to benefits 
payable for months in that taxable year prior to the attainment of such 
age.
    (m) Reasonable belief by an individual entitled to child's, wife's, 
husband's, widow's, widower's, mother's, or parent's insurance benefits 
that earnings from employment and/or net earnings from self-employment 
after the termination of entitlement (other than termination by reason 
of entitlement to an old-age insurance benefit) in the taxable year in 
which the termination event occurred would not cause deductions with 
respect to benefits payable for months in that taxable year prior to the 
month in which the termination event occurred.
    (n) Failure to understand the deduction provisions of the Act or the 
occurrence of unusual or unavoidable circumstances the nature of which 
clearly shows that the individual was unaware of a violation of such 
deduction provisions.

[27 FR 1162, Feb. 8, 1962, as amended at 28 FR 14492, Dec. 31, 1963; 34 
FR 14888, Sept. 27, 1969; 36 FR 23361, Dec. 9, 1971; 43 FR 31318, July 
21, 1978; 44 FR 20653, Apr. 6, 1979; 59 FR 1634, Jan. 12, 1994; 60 FR 
17445, Apr. 6, 1995]



Sec. 404.510a  When an individual is ``without fault'' in an entitlement overpayment.

    A benefit payment under title II or title XVIII of the Act to or on 
behalf of an individual who fails to meet one or more requirements for 
entitlement to such payment or a benefit payment exceeding the amount to 
which he is entitled, constitutes an entitlement overpayment. Where an 
individual or other person on behalf of an individual accepts such 
overpayment because of reliance on erroneous information from an 
official source within the Social Security Administration (or other 
governmental agency which the individual had reasonable cause to believe 
was connected with the administration of benefits under title II or 
title XVIII of the Act) with respect to the interpretation of a 
pertinent provision of the Social Security Act or regulations pertaining 
thereto, or where an individual or other person on behalf of an 
individual is overpaid as a result of the adjustment upward (under the 
family maximum provision in section 203 of the Act) of the benefits of 
such individual at the time of the proper termination of one or more 
beneficiaries on the same social security record and the subsequent 
reduction of the benefits of such individual caused by the reentitlement 
of the terminated beneficiary(ies) pursuant to a change in a provision 
of the law, such individual, in accepting such overpayment, will be 
deemed to be without fault. For purposes of this section governmental 
agency includes intermediaries and carriers under contract pursuant to 
sections 1816 and 1842 of the Act.

[39 FR 43716, Dec. 18, 1974]

[[Page 190]]



Sec. 404.511  When an individual is at ``fault'' in a deduction overpayment.

    (a) Degree of care. An individual will not be without fault if the 
Administration has evidence in its possession which shows either a lack 
of good faith or failure to exercise a high degree of care in 
determining whether circumstances which may cause deductions from his 
benefits should be brought to the attention of the Administration by an 
immediate report or by return of a benefit check. The high degree of 
care expected of an individual may vary with the complexity of the 
circumstances giving rise to the overpayment and the capacity of the 
particular payee to realize that he is being overpaid. Accordingly, 
variances in the personal circumstances and situations of individual 
payees are to be considered in determining whether the necessary degree 
of care has been exercised by an individual to warrant a finding that he 
was without fault in accepting a deduction overpayment.
    (b) Subsequent deduction overpayments. The Social Security 
Administration generally will not find an individual to be without fault 
where, after having been exonerated for a ``deduction overpayment'' and 
after having been advised of the correct interpretation of the deduction 
provision, the individual incurs another ``deduction overpayment'' under 
the same circumstances as the first overpayment. However, in determining 
whether the individual is without fault, the Social Security 
Administration will consider all of the pertinent circumstances 
surrounding the prior and subsequent ``deduction overpayments,'' 
including any physical, mental, educational, or linguistic limitations 
(including any lack of facility with the English language) which the 
individual may have.

[16 FR 13054, Dec. 28, 1951, as amended at 59 FR 1634, Jan. 12, 1994]



Sec. 404.512  When adjustment or recovery of an overpayment will be waived.

    (a) Adjustment or recovery deemed ``against equity and good 
conscience.'' In the situations described in Secs. 404.510(a), (b), and 
(c), and 404.510a, adjustment or recovery will be waived since it will 
be deemed such adjustment or recovery is against equity and good 
conscience. Adjustment or recovery will also be deemed against equity 
and good conscience in the situation described in Sec. 404.510(e), but 
only as to a month in which the individual's earnings from wages do not 
exceed the total monthly benefits affected for that month.
    (b) Adjustment or recovery considered to defeat the purpose of title 
II or be against equity and good conscience under certain circumstances. 
In the situation described in Sec. 404.510(e) (except in the case of an 
individual whose monthly earnings from wages in employment do not exceed 
the total monthly benefits affected for a particular month), and in the 
situations described in Sec. 404.510(f) through (n), adjustment or 
recovery shall be waived only where the evidence establishes that 
adjustment or recovery would work a financial hardship (see 
Sec. 404.508) or would otherwise be inequitable (see Sec. 404.509).

[27 FR 1163, Feb. 8, 1962, as amended at 35 FR 6321, Apr. 18, 1970; 36 
FR 23361, Dec. 9, 1971]



Sec. 404.513  Liability of a certifying officer.

    No certifying or disbursing officer shall be held liable for any 
amount certified or paid by him to any individual.
    (a) Where adjustment or recovery of such amount is waived under 
section 204(b) of the Act; or
    (b) Where adjustment under section 204(a) of the Act is not 
completed prior to the death of all individuals against whose benefits 
or lump sums deductions are authorized; or
    (c) Where a claim for recovery of an overpayment is compromised or 
collection or adjustment action is suspended or terminated pursuant to 
the Federal Claims Collection Act of 1966 (31 U.S.C. 951-953) (see 
Sec. 404.515).

[34 FR 14889, Sept. 27, 1969]



Sec. 404.515  Collection and compromise of claims for overpayment.

    (a) General effect of the Federal Claims Collection Act of 1966. 
Claims by the Administration against an individual for recovery of 
overpayments under title II or title XVIII (not including title XVIII 
overpayments for which refund is requested from providers, physicians, 
or other suppliers of services) of the Act,

[[Page 191]]

not exceeding the sum of $20,000, exclusive of interest, may be 
compromised, or collection suspended or terminated where such individual 
or his estate does not have the present or prospective ability to pay 
the full amount of the claim within a reasonable time (see paragraph (c) 
of this section) or the cost of collection is likely to exceed the 
amount of recovery (see paragraph (d) of this section) except as 
provided under paragraph (b) of this section.
    (b) When there will be no compromise, suspension or termination of 
collection of a claim for overpayment--(1) Overpaid individual alive. In 
any case where the overpaid individual is alive, a claim for overpayment 
will not be compromised, nor will there be suspension or termination of 
collection of the claim by the Administration if there is an indication 
of fraud, the filing of a false claim, or misrepresentation on the part 
of such individual or on the part of any other party having an interest 
in the claim.
    (2) Overpaid individual deceased. In any case where the overpaid 
individual is deceased (i) a claim for overpayment in excess of $5,000 
will not be compromised, nor will there be suspension or termination of 
collection of the claim by the Administration if there is an indication 
of fraud; the filing of a false claim, or misrepresentation on the part 
of such deceased individual, and (ii) a claim for overpayment regardless 
of the amount will not be compromised, nor will there be suspension or 
termination of collection of the claim by the Administration if there is 
an indication that any person other than the deceased overpaid 
individual had a part in the fraudulent action which resulted in the 
overpayment.
    (c) Inability to pay claim for recovery of overpayment. In 
determining whether the overpaid individual is unable to pay a claim for 
recovery of an overpayment under title II or title XVIII of the Act, the 
Administration will consider such individual's age, health, present and 
potential income (including inheritance prospects), assets (e.g., real 
property, savings account), possible concealment or improper transfer of 
assets, and assets or income of such individual which may be available 
in enforced collection proceedings. The Administration will also 
consider exemptions available to such individual under the pertinent 
State or Federal law in such proceedings. In the event the overpaid 
individual is deceased, the Administration will consider the available 
assets of the estate, taking into account any liens or superior claims 
against the estate.
    (d) Cost of collection or litigative probabilities. Where the 
probable costs of recovering an overpayment under title II or title 
XVIII of the Act would not justify enforced collection proceedings for 
the full amount of the claim or there is doubt concerning the 
Administration's ability to establish its claim as well as the time 
which it will take to effect such collection, a compromise or settlement 
for less than the full amount will be considered.
    (e) Amount of compromise. The amount to be accepted in compromise of 
a claim for overpayment under title II or title XVIII of the Act shall 
bear a reasonable relationship to the amount which can be recovered by 
enforced collection proceedings giving due consideration to the 
exemptions available to the overpaid individual under State or Federal 
law and the time which such collection will take.
    (f) Payment. Payment of the amount which the Administration has 
agreed to accept as a compromise in full settlement of a claim for 
recovery of an overpayment under title II or title XVIII of the Act must 
be made within the time and in the manner set by the Administration. A 
claim for such recovery of the overpayment shall not be considered 
compromised or settled until the full payment of the compromised amount 
has been made within the time and manner set by the Administration. 
Failure of the overpaid individual or his estate to make such payment as 
provided shall result in reinstatement of the full amount of the 
overpayment less any amounts paid prior to such default.

[34 FR 14889, Sept. 27, 1969; 34 FR 15413, Oct. 3, 1969]

[[Page 192]]



Sec. 404.520  Referral of overpayments to the Internal Revenue Service for tax refund offset--General.

    (a) The standards we will apply and the procedures we will follow 
before requesting the Internal Revenue Service (IRS) to offset income 
tax refunds due taxpayers who have an outstanding overpayment are set 
forth in Secs. 404.520 through 404.526. These standards and procedures 
are authorized by the Deficit Reduction Act of 1984 (31 U.S.C. 3720A), 
as amended by section 5129 of the Omnibus Budget Reconciliation Act of 
1990, and as implemented through Department of the Treasury regulations 
at 26 CFR 301.6402-6T and Department of Health and Human Services 
regulations at 45 CFR Part 31.
    (b) We will use the IRS tax refund offset procedure to collect 
overpayments that are certain in amount, past due and legally 
enforceable, and eligible for tax refund offset under regulations issued 
by the Secretary of the Treasury. We will use these procedures to 
collect overpayments only from individuals who are not currently 
entitled to monthly Social Security benefits under title II of the Act. 
We will refer an overpayment to the Secretary of the Treasury for offset 
against tax refunds no sooner than 3 months after our right to collect 
the overpayment first accrued and no later than 10 years after our right 
to collect the overpayment first accrued.

[56 FR 52468, Oct. 21, 1991]



Sec. 404.521  Notice to overpaid individual.

    A request for reduction of an IRS tax refund will be made only after 
we determine that an amount is owed and past due and provide the 
overpaid individual with 60 calendar days written notice. Our notice of 
intent to collect an overpayment through IRS tax refund offset will 
state:
    (a) The amount of the overpayment;
    (b) That unless, within 60 calendar days from the date of our 
notice, the overpaid individual repays the overpayment, sends evidence 
to us at the address given in our notice that the overpayment is not 
past due or not legally enforceable, or asks us to waive collection of 
the overpayment under section 204(b) of the Act, we intend to seek 
collection of the overpayment by requesting that the IRS reduce any 
amounts payable to the overpaid individual as refunds of Federal income 
taxes by an amount equal to the amount of the overpayment;
    (c) The conditions under which we will waive recovery of an 
overpayment under section 204(b) of the Act;
    (d) That we will review any evidence presented that the overpayment 
is not past due or not legally enforceable;
    (e) That the overpaid individual has the right to inspect and copy 
our records related to the overpayment as determined by us and will be 
informed as to where and when the inspection and copying can be done 
after we receive notice from the overpaid individual that inspection and 
copying are requested.

[56 FR 52468, Oct. 21, 1991]



Sec. 404.522  Review within SSA that an overpayment is past due and legally enforceable.

    (a) Notification by overpaid individual. An overpaid individual who 
receives a notice as described in Sec. 404.521 has the right to present 
evidence that all or part of the overpayment is not past due or not 
legally enforceable. To exercise this right, the individual must notify 
us and present evidence regarding the overpayment within 60 calendar 
days from the date of our notice.
    (b) Submission of evidence. The overpaid individual may submit 
evidence showing that all or part of the debt is not past due or not 
legally enforceable as provided in paragraph (a) of this section. 
Failure to submit the notification and evidence within 60 calendar days 
will result in referral of the overpayment to the IRS, unless the 
overpaid individual, within this 60-day time period, has asked us to 
waive collection of the overpayment under section 204(b) of the Act and 
we have not yet determined whether we can grant the waiver request. If 
the overpaid individual asks us to waive collection of the overpayment, 
we may ask that evidence to support the request be submitted to us.
    (c) Review of the evidence. After a timely submission of evidence by 
the overpaid individual, we will consider all available evidence related 
to the

[[Page 193]]

overpayment. If the overpaid individual has not requested a waiver we 
will make findings based on a review of the written record, unless we 
determine that the question of indebtedness cannot be resolved by a 
review of the documentary evidence. If the overpaid individual has asked 
us to make a waiver determination and our records do not show that after 
an oral hearing we had previously determined that he was at ``fault'' in 
accepting the overpayment, we will not deny the waiver request without 
first scheduling an oral hearing.

[56 FR 52469, Oct. 21, 1991]



Sec. 404.523  Findings by SSA.

    (a) Following the hearing or a review of the record, we will issue 
written findings which include supporting rationale for the findings. 
Issuance of these findings concerning whether the overpayment or part of 
the overpayment is past due and legally enforceable is the final Agency 
action with respect to the past-due status and enforceability of the 
overpayment. If we make a determination that a waiver request cannot be 
granted, we will issue a written notice of this determination in 
accordance with the regulations in subpart J of this part. Our referral 
of the overpayment to the IRS will not be suspended under Sec. 404.525 
pending any further administrative review of the waiver request that the 
individual may seek.
    (b) Copies of the findings described in paragraph (a) of this 
section will be distributed to the overpaid individual and the overpaid 
individual's attorney or other representative, if any.
    (c) If the findings referred to in paragraph (a) of this section 
affirm that all or part of the overpayment is past due and legally 
enforceable and, if waiver is requested, we determine that the request 
cannot be granted, we will refer the overpayment to the IRS. No referral 
will be made to the IRS if, based on our review of the overpayment, we 
reverse our prior finding that the overpayment is past due and legally 
enforceable or, upon consideration of a waiver request, we determine 
that waiver of our collection of the overpayment is appropriate.

[56 FR 52469, Oct. 21, 1991]



Sec. 404.524  Review of our records related to the overpayment.

    (a) Notification by the overpaid individual. An overpaid individual 
who intends to inspect or copy our records related to the overpayment as 
determined by us must notify us stating his or her intention to inspect 
or copy.
    (b) Our response. In response to a notification by the overpaid 
individual as described in paragraph (a) of this section, we will notify 
the overpaid individual of the location and time when the overpaid 
individual may inspect or copy our records related to the overpayment. 
We may also, at our discretion, mail copies of the overpayment-related 
records to the overpaid individual.

[56 FR 52469, Oct. 21, 1991]



Sec. 404.525  Suspension of offset.

    If, within 60 days of the date of the notice described in 
Sec. 404.521, the overpaid individual notifies us that he or she is 
exercising a right described in Sec. 404.522(a) and submits evidence 
pursuant to Sec. 404.522(b) or requests a waiver under Sec. 404.506, we 
will suspend any notice to the IRS until we have issued written findings 
that affirm that an overpayment is past due and legally enforceable and, 
if applicable, make a determination that a waiver request cannot be 
granted.

[56 FR 52469, Oct. 21, 1991]



Sec. 404.526  Tax refund insufficient to cover amount of overpayment.

    If a tax refund is insufficient to recover an overpayment in a given 
year, we will recertify the remainder of the overpayment to the IRS in 
the following year, assuming that all criteria for certification are met 
at that time.

[56 FR 52469, Oct. 21, 1991]



            Subpart G--Filing of Applications and Other Forms

    Authority:  Secs. 202 (i), (j), (o), (p), and (r), 205(a), 
216(i)(2), 223(b), 228(a), and 702(a)(5) of the Social Security Act (42 
U.S.C. 402 (i), (j),

[[Page 194]]

(o), (p), and (r), 405(a), 416(i)(2), 423(b), 428(a), and 902(a)(5)).

    Source:  44 FR 37209, June 26, 1979, unless otherwise noted.

                           General Provisions



Sec. 404.601  Introduction.

    This subpart contains the Social Security Administration's rules for 
filing a claim for old-age, disability, dependents', and survivors' 
insurance benefits as described in subpart D of part 404. It tells what 
an application is, who may sign it, where and when it must be signed and 
filed, the period of time it is in effect and how it may be withdrawn. 
This subpart also explains when a written statement, request, or notice 
will be considered filed. Since the application form and procedures for 
filing a claim under this subpart are the same as those used to 
establish entitlement to Medicare benefits under 42 CFR part 405, 
persons who wish to become entitled to Medicare benefits should refer to 
the provisions of this subpart. Requirements concerning applications for 
the black lung benefits program are contained in part 410. Requirements 
concerning applications for the supplemental security income program are 
contained in part 416. Part 422 contains the requirements for applying 
for a social security number.



Sec. 404.602  Definitions.

    For the purpose of this subpart--
    Applicant means the person who files an application for benefits for 
himself or herself or for someone else. A person who files for himself 
or herself is both the applicant and the claimant.
    Application refers only to an application on a form described in 
Sec. 404.611.
    Benefits means any old-age, disability, dependents', and survivors' 
insurance benefits described in subpart D, including a period of 
disability.
    Claimant means the person who files an application for benefits for 
himself or herself or the person for whom an application is filed.
    We, us, or our means the Social Security Administration (SSA).
    You or your means, as appropriate, the person who applies for 
benefits, the person for whom an application is filed, or the person who 
may consider applying for benefits.



Sec. 404.603  You must file an application to receive benefits.

    In addition to meeting other requirements, you must file an 
application to become entitled to benefits. If you believe you may be 
entitled to benefits, you should file an application. Filing an 
application will--
    (a) Permit a formal decision to be made on your entitlement to 
benefits;
    (b) Protect your entitlement to any benefits that may be payable for 
as many as 6 months or 12 months (depending on the type of benefit, as 
explained in Sec. 404.621) before the application was filed; and
    (c) Give you the right to appeal if you are dissatisfied with the 
decision.

[44 FR 37209, June 26, 1979, as amended at 46 FR 47444, Sept. 28, 1981]

                              Applications



Sec. 404.610  What makes an application a claim for benefits.

    To be considered a claim for benefits, an application must generally 
meet all of the following conditions:
    (a) It must be on an application form as described in Sec. 404.611.
    (b) It must be completed and filed with SSA as described in 
Sec. 404.611.
    (c) It must be signed by the claimant or someone described in 
Sec. 404.612. who may sign an application for the claimant.
    (d) The claimant, with the limited exceptions in Sec. 404.615, must 
be alive at the time it is filed.



Sec. 404.611  Filing of application with Social Security Administration.

    (a) General rule. You must apply for benefits on an applications we 
prescribe. See Sec. 404.614 for places where an application for benefits 
may be filed.
    (b) Effect of claims filed with the Railroad Retirement Board. 
Pursuant to section 5(b) of the Railroad Retirement Act of 1974, as 
amended, 45 U.S.C. 231d(b), if you file an application with the Railroad 
Retirement Board on one of its forms for an annuity under section 2 of 
the Railroad Retirement Act

[[Page 195]]

of 1974, as amended, 45 U.S.C. 231a, unless you specify otherwise, this 
application also will be an application for any benefit to which you may 
be entitled under title II of the Social Security Act.
    (c) Effect of claims filed with the Veterans Administration. An 
application filed with the Veterans Administration on one of its forms 
for survivors' dependency and indemnity compensation (see section 3005 
of title 38 U.S.C.) is also considered an application for social 
security dependents' and survivors' benefits except the lump-sum death 
payment.

[44 FR 37209, June 26, 1979, as amended at 51 FR 41951, Nov. 20, 1986; 
58 FR 60381, Nov. 16, 1993]



Sec. 404.612  Who may sign an application.

    We will determine who may sign an application according to the 
following rules:
    (a) A claimant who is 18 years old or over, mentally competent, and 
physically able to do so, must sign his or her own application. If the 
claim is for child's benefits for a person who is not yet 22 years old, 
the application may be signed by a parent or a person standing in place 
of the parent.
    (b) A claimant who is between 16 and 18 years old may sign his or 
her own application if he or she is mentally competent, has no court 
appointed representative, and is not in the care of any person.
    (c) If the claimant is under age 18, or mentally incompetent, or 
physically unable to sign, the application may be signed by a court 
appointed representative or a person who is responsible for the care of 
the claimant, including a relative. If the claimant is in the care of an 
institution, the manager or principal officer of the institution may 
sign the application.
    (d) If a person who could receive disability benefits or who could 
have a period of disability established dies before filing, an 
application for disability benefits or for a period of disability may be 
signed by a person who would be qualified to receive any benefits due 
the deceased.
    (e) If a written statement showing an intent to claim benefits is 
filed with us, but the person for whom the benefits are claimed dies 
before an application is filed, an application may be filed as explained 
in Sec. 404.630(d).
    (f) If a person who could receive benefits on the basis of a 
``deemed'' filing date of an application under Sec. 404.633(b)(1)(i) or 
(b)(2)(i) dies before an application for the benefits is filed, the 
application may be signed by a person who would be qualified to receive 
any benefits due the deceased person as explained in 
Sec. 404.633(b)(1)(ii) and (b)(2)(ii).
    (g) If it is necessary to protect a claimant from losing benefits 
and there is good cause for the claimant not signing the application, we 
may accept an application signed by some one other than a person 
described in this section.
    Example:  Mr. Smith comes to a social security office a few days 
before the end of a month to file an application for old-age benefits 
for his neighbor, Mr. Jones. Mr. Jones, a 63 year old widower, just 
suffered a heart attack and is in the hospital. He asked Mr. Smith to 
file the application for him. We will accept an application signed by 
Mr. Smith since it would not be possible to have Mr. Jones sign and file 
the application until the next calendar month and a loss of one month's 
benefits would result.

[44 FR 37209, June 26, 1979, as amended at 59 FR 44923, Aug. 31, 1994; 
61 FR 41330, Aug. 8, 1996]



Sec. 404.613  Evidence of authority to sign an application for another.

    (a) A person who signs an application for someone else will be 
required to provide evidence of his or her authority to sign the 
application for the person claiming benefits under the following rules:
    (1) If the person who signs is a court appointed representative, he 
or she must submit a certificate issued by the court showing authority 
to act for the claimant.
    (2) If the person who signs is not a court appointed representative, 
he or she must submit a statement describing his or her relationship to 
the claimant. The statement must also describe the extent to which the 
person is responsible for the care of the claimant. This latter 
information will not be requested if the application is signed by a 
parent for a child with whom he or she is living.

[[Page 196]]

    (3) If the person who signs is the manager or principal officer of 
an institution which is responsible for the care of the claimant, he or 
she must submit a statement indicating the person's position of 
responsibility at the institution.
    (b) We may, at any time, require additional evidence to establish 
the authority of a person to sign an application for someone else.



Sec. 404.614  When an application or other form is considered filed.

    (a) General rule. Except as otherwise provided in paragraph (b) of 
this section and in Secs. 404.630 through 404.633 which relate to the 
filing date of an application, an application for benefits, or a written 
statement, request, or notice is filed on the day it is received by an 
SSA employee at one of our offices or by an SSA employee who is 
authorized to receive it at a place other than one of our offices.
    (b) Other places and dates of filing. We will also accept as the 
date of filing--
    (1) The date an application for benefits, or a written statement, 
request or notice is received by any office of the U.S. Foreign Service 
or by the Veterans Administration Regional Office in the Philippines;
    (2) The date an application for benefits or a written statement, 
request or notice is mailed to us by the U.S. mail, if using the date we 
receive it would result in the loss or lessening of rights. The date 
shown by a U.S. postmark will be used as the date of mailing. If the 
postmark is unreadable, or there is no postmark, we will consider other 
evidence of when you mailed it to us; or
    (3) The date an application for benefits is filed with the Railroad 
Retirement Board or the Veterans Administration. See Sec. 404.611 (b) 
and (c) for an explanation of when an application for benefits filed 
with the Railroad Retirement Board or the Veterans Administration is 
considered an application for social security benefits.

[44 FR 37209, June 26, 1979, as amended at 59 FR 44923, Aug. 31, 1994]



Sec. 404.615  Claimant must be alive when an application is filed.

    A claimant must be alive at the time an application is filed. There 
are the following exceptions to this general rule:
    (a) If a disabled person dies before filing an application for 
disability benefits or a period of disability, a person who would be 
qualified to receive any benefits due the deceased may file an 
application. The application must be filed within 3 months after the 
month in which the disabled person died.
    (b) If a written statement showing an intent to claim benefits is 
filed with us, but the person for whom the benefits are claimed dies 
before an application is filed, an application may be filed as explained 
in Sec. 404.630(d).
    (c) If a person who could receive benefits on the basis of a 
``deemed'' filing date of an application under Sec. 404.633(b)(1)(i) or 
(b)(2)(i) dies before an application for the benefits is filed, the 
application may be signed by a person who would be qualified to receive 
any benefits due the deceased person as explained in 
Sec. 404.633(b)(1)(ii) and (b)(2)(ii).

[44 FR 37209, June 26, 1979, as amended at 59 FR 44923, Aug. 31, 1994; 
61 FR 41330, Aug. 8, 1996]

                 Effective Filing Period of Application



Sec. 404.620  Filing before the first month you meet the requirements for benefits.

    (a) General rule. If you file an application for benefits (except 
special age 72 payments) before the first month you meet all the other 
requirements for entitlement, the application will remain in effect 
until we make a final determination on your application unless there is 
an administrative law judge hearing decision on your application. If 
there is an administrative law judge hearing decision, your application 
will remain in effect until the administrative law judge hearing 
decision is issued.
    (1) If you meet all the requirements for entitlement while your 
application is in effect, we may pay you benefits from the first month 
that you meet all the requirements.

[[Page 197]]

    (2) If you first meet all the requirements for entitlement after the 
period for which your application was in effect, you must file a new 
application for benefits. In this case, we may pay you benefits only 
from the first month that you meet all the requirements based on the new 
application.
    (b) Filing for special age 72 payments. The requirements for 
entitlement to special age 72 payments must be met no later than 3 
months after the month an application is filed.

[44 FR 37209, June 26, 1979, as amended at 52 FR 4003, Feb. 9, 1987]



Sec. 404.621  Filing after the first month you meet the requirements for benefits.

    (a) Filing for disability benefits and for old-age, survivors', or 
dependents' benefits. (1)(i) If you file an application for disability 
benefits, widow's or widower's benefits based on disability, or wife's, 
husband's, or child's benefits based on the earnings record of a person 
entitled to disability benefits, after the first month you could have 
been entitled to them, you may receive benefits for up to 12 months 
immediately before the month in which your application is filed. Your 
benefits may begin with the first month in this 12-month period in which 
you meet all the requirements for entitlement. However, entitlement to 
wife's or husband's benefits under this rule is limited by paragraph 
(a)(1)(iii) of this section.
    (ii) If you file an application for old-age benefits, widow's or 
widower's benefits not based on disability, wife's, husband's, or 
child's benefits based on the earnings record of a person not entitled 
to disability benefits, or mother's, father's, or parent's benefits, 
after the first month you could have been entitled to them, you may 
receive benefits for up to 6 months immediately before the month in 
which your application is filed. Your benefits may begin with the first 
month in this 6-month period in which you meet all the requirements for 
entitlement. However, entitlement to old-age, wife's, husband's, 
widow's, or widower's benefits under this rule is limited by paragraph 
(a)(1)(iii) of this section.
    (iii) If the effect of the payment of benefits for a month before 
the month you file would be to reduce your benefits because of your age, 
you cannot be entitled to old-age, wife's, husband's, widow's, or 
widower's benefits for any month before the month in which your 
application is filed, unless you meet one of the conditions in paragraph 
(a)(2) of this section. (An explanation of the reduction that occurs 
because of age if you are entitled to these benefits for a month before 
you reach the retirement age of 65, is in Sec. 404.410.) An example 
follows that assumes you do not meet any of the conditions in paragraph 
(a)(2) of this section.
    Example:  You become 65 years old in April 1981. If you apply for 
old-age benefits in April, you cannot be entitled to benefits for months 
in the 6-month period before April because the payment of benefits for 
any of these months would result in your benefits being reduced for age. 
If you do not file your application until July 1981, you may be entitled 
to benefits for the months of April, May, and June 1981 because the 
payment of benefits for these months would not result in your benefits 
being reduced for age. You will not, however, receive benefits for the 3 
months before April.
    (2) The limitation in paragraph (a)(1)(iii) of this section on your 
entitlement to old-age, wife's, husband's, widow's, or widower's 
benefits for months before you file an application does not apply if--
    (i) You are a widow, widower, surviving divorced wife, or surviving 
divorced husband who is disabled and could be entitled to retroactive 
benefits for any month before age 60. If you could not be entitled 
before age 60, the limitation will prevent payment of benefits to you 
for past months, but it will not affect the month you become entitled to 
hospital insurance benefits.
    (ii) You are a widow, widower, or surviving divorced spouse of the 
insured person who died in the month before you applied and you were at 
least age 60 in the month of death of the insured person on whose 
earnings record you are claiming benefits. In this case, you can be 
entitled beginning with the month the insured person died if you choose 
and if you file your application on or after July 1, 1983.
    (b) Filing for lump-sum death payment. An application for a lump-sum 
death payment must be filed within 2 years after the death of the person 
on whose earnings record the claim is filed.

[[Page 198]]

There are two exceptions to the 2-year filing requirement:
    (1) If there is a good cause for failure to file within the 2-year 
period, we will consider your application as though it were filed within 
the 2-year period. Good cause does not exist if you were informed of the 
need to file an application within the 2-year period and you neglected 
to do so or did not desire to make a claim. Good cause will be found to 
exist if you did not file 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 evidence to support your claim without 
realizing that you could submit the evidence after filing an 
application; or
    (iv) Unusual or unavoidable circumstances which show that you could 
not reasonably be expected to know of the time limit.
    (2) The Soldiers' and Sailors' Civil Relief Act of 1940 provides for 
extending the filing time.
    (c) Filing for special age 72 payments. An application for special 
age 72 payments is not effective as a claim for benefits for any month 
before you actually file.
    (d) Filing for a period of disability. You must file an application 
for a period of disability while you are 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 time period because of a 
physical or mental condition, you may apply not more than 36 months 
after your disability ended. The general rule we use to decide whether 
your failure to file was due to a physical or mental condition is stated 
in subpart D.
    (e) Filing after death of person eligible for disability benefits or 
period of disability. If you file for disability benefits or a period of 
disability for another person who died before filing an application and 
you would qualify under Sec. 404.503(b) to receive any benefits due the 
deceased, you must file an application no later than the end of the 
third month following the month in which the disabled person died.

[44 FR 37209, June 26, 1979, as amended at 46 FR 47444, Sept. 28, 1981; 
51 FR 4482, Feb. 5, 1986; 56 FR 58846, Nov. 22, 1991]



Sec. 404.622  Limiting an application.

    Your application may entitle you to benefits for up to 6 months or 
12 months (depending on the type of benefit, as explained in 
Sec. 404.621) before the month in which it is filed. You may limit the 
number of months of your entitlement in the 6-month or 12-month period. 
You may state this choice any time before a decision is made on your 
claim by indicating, in writing, the month you want your benefits to 
begin. You may change the first month of entitlement in this 6-month or 
12-month period after a decision has been made on your claim under the 
following conditions:
    (a) You file the request in writing.
    (b) If you are filing for the claimant, he or she is alive when the 
request is filed.
    (c) If any other person who is entitled to benefits would lose some 
or all of those benefits because of the change, that person, or the 
person who filed for him or her, consents in writing.
    (d) Any benefit payments that would become improper as a result of 
the change in entitlement month are repaid, or we are satisfied that 
they will be repaid.

[44 FR 37209, June 26, 1979, as amended at 46 FR 47445, Sept. 28, 1981]



Sec. 404.623  Filing by person eligible for old-age and husband's or wife's benefits.

    (a) Presumed filing for husband's or wife's benefits. If you file an 
application for old-age benefits, you are presumed to have filed an 
application for husband's or wife's benefits in the first month of your 
entitlement to old-age benefits, if--
    (1) Your old-age benefits are reduced for age because you choose to 
receive them before you become 65 years old; and
    (2) You are eligible for either a husband's or a wife's benefit for 
the first month of your entitlement to old-age benefits.

[[Page 199]]

    (b) Presumed filing for old-age benefits. (1) If you file an 
application for a husband's or a wife's benefits, you are presumed to 
have filed an application for old-age benefits in the first month of 
your entitlement to husband's or wife's benefits if--
    (i) Your husband's or wife's benefits are reduced for age because 
you choose to receive them before you become 65 years old; and
    (ii) You are eligible for old-age benefits for the first month of 
your entitlement to husband's or wife's benefits.
    (2) The rule in paragraph (b)(1) of this section is not used if you 
are also entitled to disability benefits in the first month of your 
entitlement to husband's or wife's benefits. In this event, you are 
presumed to have filed for old-age benefits only if your disability 
benefits end before you become 65 years old.

                 Filing Date Based on Written Statement



Sec. 404.630  Use of date of written statement as filing date.

    If a written statement, such as a letter, indicating your intent to 
claim benefits either for yourself or for another person is filed with 
us under the rules stated in Sec. 404.614, we will use the filing date 
of the written statement as the filing date of the application, if all 
of the following requirements are met:
    (a) The statement indicates an intent to claim benefits.
    (b) The statement is signed by the claimant, the claimant's spouse, 
or a person described in Sec. 404.612. If you telephone us and advise us 
that you intend to file a claim but cannot file an application before 
the end of the month, we will prepare and sign a written statement if it 
is necessary to prevent the loss of benefits.
    (c) The claimant files an application with us on an application form 
as described in Sec. 404.611, or one is filed for the claimant by a 
person described in Sec. 404.612, within 6 months after the date of a 
notice we will send advising of the need to file an application. We will 
send the notice to the claimant. However, if it is clear from the 
information we receive that the claimant is a minor or is mentally 
incompetent, we will send the notice to the person who submitted the 
written statement.
    (d) The claimant is alive when the application is filed; or if the 
claimant has died after the written statement was filed, an application 
is filed--
    (1) By or for a person who would be eligible to receive benefits on 
the deceased's earnings record;
    (2) By a person acting for the deceased's estate; or
    (3) If the statement was filed with a hospital under Sec. 404.632, 
by the hospital if--
    (i) No person described in paragraph (d) (1) or (2) of this section 
can be located; or
    (ii) A person described in paragraphs (d) (1) or (2) of this section 
is located but refuses or fails to file the application unless the 
refusal or failure to file is because it would be harmful to the 
deceased person or the deceased's estate.



Sec. 404.631  Statements filed with the Railroad Retirement Board.

    A written statement filed with the Railroad Retirement Board will be 
considered a written statement filed with us under the rules in 
Sec. 404.630 if--
    (a) The statement indicates an intent to claim any payments under 
the Railroad Retirement Act;
    (b) It bears the signature of the person filing the statement;
    (c) No application is filed with the Railroad Retirement Board on 
one of its forms. If an application has been filed, we will use the date 
of filing of that application as determined by the Railroad Retirement 
Board (see Sec. 404.614(b)(3)); and
    (d) The statement is sent to us by the Railroad Retirement Board.



Sec. 404.632  Statements filed with a hospital.

    A statement (generally a hospital admission form) filed with a 
hospital may serve as a written statement under Sec. 404.630 if the 
requirements of this section are met. The statement will be considered 
filed with us as of the date it was filed with the hospital and will 
serve to protect entitlement to benefits. A statement filed with a 
hospital by you or some other person for you requesting or indicating an 
intent to

[[Page 200]]

claim benefits will be considered a written statement filed with us and 
Sec. 404.630 will apply to it if--
    (a) You are a patient in the hospital;
    (b) The hospital provides services covered by hospital insurance 
under the Medicare program;
    (c) An application has not already been filed; and
    (d) The statement is sent to us.

               Deemed Filing Date Based on Misinformation



Sec. 404.633  Deemed filing date in a case of misinformation.

    (a) General. You may have considered applying for monthly benefits 
for yourself or for another person, and you may have contacted us in 
writing, by telephone or in person to inquire about filing an 
application for these benefits. It is possible that in responding to 
your inquiry, we may have given you misinformation about your 
eligibility for such benefits, or the eligibility of the person on whose 
behalf you were considering applying for benefits, which caused you not 
to file an application at that time. If this happened, and later an 
application for such benefits is filed with us, we may establish an 
earlier filing date under this section.
    Example 1:  Mrs. Smith, a widow of an insured individual, contacts a 
Social Security office when she reaches age 60 to inquire about applying 
for widow's insurance benefits. She is told by an SSA employee that she 
must be age 62 to be eligible for these benefits. This information, 
which was incorrect, causes Mrs. Smith not to file an application for 
benefits. When Mrs. Smith reaches age 62, she again contacts a Social 
Security office to ask about filing for widow's insurance benefits and 
learns that she could have received the benefits at age 60. She files an 
application for these benefits, provides the information required under 
paragraph (f) of this section to show that an SSA employee provided 
misinformation, and requests a deemed filing date based on the 
misinformation which she received from an SSA employee when she was age 
60.
    Example 2:  Ms. Hill, a 22-year-old, is forced to stop work because 
of illness. When she contacts a Social Security office to inquire about 
applying for disability insurance benefits, she is told by an SSA 
employee that she must have 20 quarters of coverage out of the last 40 
calendar quarters to be insured for disability insurance benefits. The 
employee fails to consider the special rules for insured status for 
persons who become disabled before age 31 and, consequently, tells Ms. 
Hill that she is not insured because she only has 16 quarters of 
coverage. The misinformation causes Ms. Hill not to file an application 
for disability insurance benefits. Because of her illness, she is unable 
to return to work. A year later, Ms. Hill reads an article that 
indicates that there are special rules for insured status for young 
workers who become disabled. She again contacts a Social Security office 
to inquire about benefits based on disability and learns that she was 
misinformed earlier about her insured status. She files an application 
for disability insurance benefits, provides the information required 
under paragraph (f) of this section to show that an SSA employee 
provided misinformation, and requests a deemed filing date based on the 
misinformation provided to her earlier.
    (b) Deemed filing date of an application based on misinformation. 
Subject to the requirements and conditions in paragraphs (c) through (g) 
of this section, we may establish a deemed filing date of an application 
for monthly benefits under the following provisions.
    (1)(i) If we determine that you failed to apply for monthly benefits 
for yourself because we gave you misinformation about your eligibility 
for such benefits, we will deem an application for such benefits to have 
been filed with us on the later of--
    (A) The date on which the misinformation was provided to you; or
    (B) The date on which you met all of the requirements for 
entitlement to such benefits, other than the requirement of filing an 
application.
    (ii) Before we may establish a deemed filing date of an application 
for benefits for you under paragraph (b)(1)(i) of this section, you or a 
person described in Sec. 404.612 must file an application for such 
benefits. If you die before an application for the benefits is filed 
with us, we will consider establishing a deemed filing date of an 
application for such benefits only if an application for the benefits is 
filed with us by a person who would be qualified to receive any benefits 
due you.
    (2)(i) If you had authority under Sec. 404.612 to sign an 
application for benefits for another person, and we determine that you 
failed to apply for monthly benefits for that person because we gave you 
misinformation about that person's eligibility for such benefits, we 
will deem an application

[[Page 201]]

for such benefits to have been filed with us on the later of--
    (A) The date on which the misinformation was provided to you; or
    (B) The date on which the person met all of the requirements for 
entitlement to such benefits, other than the requirement of filing an 
application.
    (ii) Before we may establish a deemed filing date of an application 
for benefits for the person under paragraph (b)(2)(i) of this section, 
you, such person, or another person described in Sec. 404.612 must file 
an application for such benefits. If the person referred to in paragraph 
(b)(2)(i) of this section dies before an application for the benefits is 
filed with us, we will consider establishing a deemed filing date of an 
application for such benefits only if an application for the benefits is 
filed with us by a person who would be qualified to receive any benefits 
due the deceased person.
    (c) Requirements concerning the misinformation. We apply the 
following requirements for purposes of paragraph (b) of this section.
    (1) The misinformation must have been provided to you by one of our 
employees while he or she was acting in his or her official capacity as 
our employee. For purposes of this section, an employee includes an 
officer of SSA.
    (2) Misinformation is information which we consider to be incorrect, 
misleading, or incomplete in view of the facts which you gave to the 
employee, or of which the employee was aware or should have been aware, 
regarding your particular circumstances, or the particular circumstances 
of the person referred to in paragraph (b)(2)(i) of this section. In 
addition, for us to find that the information you received was 
incomplete, the employee must have failed to provide you with the 
appropriate, additional information which he or she would be required to 
provide in carrying out his or her official duties.
    (3) The misinformation may have been provided to you orally or in 
writing.
    (4) The misinformation must have been provided to you in response to 
a specific request by you to us for information about your eligibility 
for benefits or the eligibility for benefits of the person referred to 
in paragraph (b)(2)(i) of this section for which you were considering 
filing an application.
    (d) Evidence that misinformation was provided. We will consider the 
following evidence in making a determination under paragraph (b) of this 
section.
    (1) Preferred evidence. Preferred evidence is written evidence which 
relates directly to your inquiry about your eligibility for benefits or 
the eligibility of another person and which shows that we gave you 
misinformation which caused you not to file an application. Preferred 
evidence includes, but is not limited to, the following--
    (i) A notice, letter or other document which was issued by us and 
addressed to you; or
    (ii) Our record of your telephone call, letter or in-person contact.
    (2) Other evidence. In the absence of preferred evidence, we will 
consider other evidence, including your statements about the alleged 
misinformation, to determine whether we gave you misinformation which 
caused you not to file an application. We will not find that we gave you 
misinformation, however, based solely on your statements. Other evidence 
which you provide or which we obtain must support your statements. 
Evidence which we will consider includes, but is not limited to, the 
following--
    (i) Your statements about the alleged misinformation, including 
statements about--
    (A) The date and time of the alleged contact(s);
    (B) How the contact was made, e.g., by telephone or in person;
    (C) The reason(s) the contact was made;
    (D) Who gave the misinformation; and
    (E) The questions you asked and the facts you gave us, and the 
questions we asked and the information we gave you, at the time of the 
contact;
    (ii) Statements from others who were present when you were given the 
alleged misinformation, e.g., a neighbor who accompanied you to our 
office;
    (iii) If you can identify the employee or the employee can recall 
your inquiry about benefits--
    (A) Statements from the employee concerning the alleged contact, 
including statements about the questions you

[[Page 202]]

asked, the facts you gave, the questions the employee asked, and the 
information provided to you at the time of the alleged contact; and
    (B) Our assessment of the likelihood that the employee provided the 
alleged misinformation;
    (iv) An evaluation of the credibility and the validity of your 
allegations in conjunction with other relevant information; and
    (v) Any other information regarding your alleged contact.
    (e) Information which does not constitute satisfactory proof that 
misinformation was given. Certain kinds of information will not be 
considered satisfactory proof that we gave you misinformation which 
caused you not to file an application. Examples of such information 
include--
    (1) General informational pamphlets that we issue to provide basic 
program information;
    (2) The Personal Earnings and Benefit Estimate Statement that is 
based on an individual's reported and projected earnings and is an 
estimate which can be requested at any time;
    (3) General information which we review or prepare but which is 
disseminated by the media, e.g., radio, television, magazines, and 
newspapers; and
    (4) Information provided by other governmental agencies, e.g., the 
Department of Veterans Affairs, the Department of Defense, State 
unemployment agencies, and State and local governments.
    (f) Claim for benefits based on misinformation. You may make a claim 
for benefits based on misinformation at any time. Your claim must 
contain information that will enable us to determine if we did provide 
misinformation to you about your eligibility for benefits, or the 
eligibility of a person on whose behalf you were considering applying 
for benefits, which caused you not to file an application for the 
benefits. Specifically, your claim must be in writing and it must 
explain what information was provided; how, when and where it was 
provided and by whom; and why the information caused you not to file an 
application. If you give us this information, we will make a 
determination on such a claim for benefits if all of the following 
conditions are also met.
    (1) An application for the benefits described in paragraph (b)(1)(i) 
or (b)(2)(i) of this section is filed with us by someone described in 
paragraph (b)(1)(ii) or (b)(2)(ii) of this section, as appropriate. The 
application must be filed after the alleged misinformation was provided. 
This application may be--
    (i) An application on which we have made a previous final 
determination or decision awarding the benefits, but only if the 
claimant continues to be entitled to benefits based on that application;
    (ii) An application on which we have made a previous final 
determination or decision denying the benefits, but only if such 
determination or decision is reopened under Sec. 404.988; or
    (iii) A new application on which we have not made a final 
determination or decision.
    (2) The establishment of a deemed filing date of an application for 
benefits based on misinformation could result in the claimant becoming 
entitled to benefits or to additional benefits.
    (3) We have not made a previous final determination or decision to 
which you were a party on a claim for benefits based on alleged 
misinformation involving the same facts and issues. This provision does 
not apply, however, if the final determination or decision may be 
reopened under Sec. 404.988.
    (g) Effective date. This section applies only to misinformation 
which we provided after December 1982. In addition, this section is 
effective only for benefits payable for months after December 1982.

[59 FR 44924, Aug. 31, 1994]

                        Withdrawal of Application



Sec. 404.640  Withdrawal of an application.

    (a) Request for withdrawal filed before a determination is made. An 
application may be withdrawn before we make a determination on it if--
    (1) A written request for withdrawal is filed at a place described 
in Sec. 404.614 by the claimant or a person who may sign an application 
for the claimant under Sec. 404.612; and
    (2) The claimant is alive at the time the request is filed.

[[Page 203]]

    (b) Request for withdrawal filed after a determination is made. An 
application may be withdrawn after we make a determination on it if--
    (1) The conditions in paragraph (a) of this section are met;
    (2) Any other person whose entitlement would be rendered erroneous 
because of the withdrawal consents in writing to it. Written consent for 
the person may be given by someone who could sign an application for him 
or her under Sec. 404.612; and
    (3) All benefits already paid based on the application being 
withdrawn are repaid or we are satisfied that they will be repaid.
    (c) Request for withdrawal filed after the claimant's death. An 
application may be withdrawn after the claimant's death, regardless of 
whether we have made a determination on it, if--
    (1) The claimant's application was for old-age benefits that would 
be reduced because of his or her age;
    (2) The claimant died before we certified his or her benefit 
entitlement to the Treasury Department for payment;
    (3) A written request for withdrawal is filed at a place described 
in Sec. 404.614 by or for the person eligible for widow's or widower's 
benefits based on the claimant's earnings; and
    (4) The conditions in paragraphs (b)(2) and (3) of this section are 
met.
    (d) Effect of withdrawal. If we approve a request to withdraw an 
application, the application will be considered as though it was never 
filed. If we disapprove a request for withdrawal, the application is 
treated as though the request was never filed.

[44 FR 37209, June 26, 1979, as amended at 48 FR 21931, May 16, 1983; 51 
FR 37720, Oct. 24, 1986]



Sec. 404.641  Cancellation of a request to withdraw.

    A request to withdraw an application may be cancelled and the 
application reinstated if--
    (a) A written request for cancellation is filed at a place described 
in Sec. 404.614 by the claimant or someone who may sign an application 
for the claimant under Sec. 404.612;
    (b) The claimant is alive at the time the request for cancellation 
is filed; and
    (c) For a cancellation request received after we have approved the 
withdrawal, the request is filed no later than 60 days after the date of 
the notice of approval.



                           Subpart H--Evidence

    Authority:  Secs. 205(a) and 702(a)(5) of the Social Security Act 
(42 U.S.C. 405(a) and 902(a)(5)).

    Source:  43 FR 24795, June 7, 1978, unless otherwise noted.

                                 General



Sec. 404.701  Introduction.

    This subpart contains the Social Security Administration's basic 
rules about what evidence is needed when a person claims old-age, 
disability, dependents' and survivors' insurance benefits as described 
in subpart D. In addition, there are special evidence requirements for 
disability benefits. These are contained in subpart P. Evidence of a 
person's earnings under social security is described in subpart I. 
Evidence needed to obtain a social security number card is described in 
part 422. Evidence requirements for the supplemental security income 
program are contained in part 416.



Sec. 404.702  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.
    Benefits means any old-age, disability, dependents' and survivors' 
insurance benefits described in subpart D, including a period of 
disability.
    Convincing evidence means one or more pieces of evidence that prove 
you meet a requirement for eligibility. See Sec. 404.708 for the guides 
we use in deciding whether evidence is convincing.
    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.
    Evidence means any record, document, or signed statement that helps

[[Page 204]]

to show whether you are eligible for benefits or whether you are still 
entitled to benefits.
    Insured person means someone who has enough earnings under social 
security to permit the payment of benefits on his or her earnings 
record. He or she is fully insured, transitionally insured, currently 
insured, or insured for disability as defined in subpart B.
    We or Us refers to the Social Security Administration.
    You refers to the person who has applied for benefits, or the person 
for whom someone else has applied.



Sec. 404.703  When evidence is needed.

    When you apply for benefits, we will ask for evidence that you are 
eligible for them. After you become entitled to benefits, we may ask for 
evidence showing whether you continue to be entitled to benefits; or 
evidence showing whether your benefit payments should be reduced or 
stopped. See Sec. 404.401 for a list showing when benefit payments must 
be reduced or stopped.



Sec. 404.704  Your responsibility for giving evidence.

    When evidence is needed to prove your eligibility or your right to 
continue to receive benefit payments, you will be responsible for 
obtaining and giving the evidence to us. We will be glad to advise you 
what is needed and how to get it and we will consider any evidence you 
give us. If your evidence is a foreign-language record or document, we 
can have it translated for you. Evidence given to us will be kept 
confidential and not disclosed to anyone but you except under the rules 
set out in part 401. You should also be aware that Section 208 of the 
Social Security Act provides criminal penalties for misrepresenting the 
facts or for making false statements to obtain social security benefits 
for yourself or someone else.



Sec. 404.705  Failure to give requested evidence.

    Generally, you will be asked to give us by a certain date specific 
kinds of evidence or information to prove you are eligible for benefits. 
If we do not receive the evidence or information by that date, we may 
decide you are not eligible for benefits. If you are already receiving 
benefits, you may be asked to give us by a certain date information 
needed to decide whether you continue to be entitled to benefits or 
whether your benefits should be stopped or reduced. If you do not give 
us the requested information by the date given, we may decide that you 
are no longer entitled to benefits or that your benefits should be 
stopped or reduced. You should let us know if you are unable to give us 
the requested evidence within the specified time and explain why there 
will be a delay. If this delay is due to illness, failure to receive 
timely evidence you have asked for from another source, or a similar 
circumstance, you will be given additional time to give us the evidence.



Sec. 404.706  Where to give evidence.

    Evidence should be given to the people at a Social Security 
Administration office. In the Philippines evidence should be given to 
the people at the Veterans Administration Regional Office. Elsewhere 
outside the United States, evidence should be given to the people at a 
United States Foreign Service Office.



Sec. 404.707  Original records or copies as evidence.

    (a) General. To prove your eligibility or continuing entitlement to 
benefits, you may be asked to show us an original document or record. 
These original records or documents will be returned to you after we 
have photocopied them. We will also accept copies of original records 
that are properly certified and some uncertified birth notifications. 
These types of records are described below in this section.
    (b) Certified copies of original records. You may give us copies of 
original records or extracts from records if they are certified as true 
and exact copies by--
    (1) The official custodian of the record;
    (2) A Social Security Administration employee authorized to certify 
copies;
    (3) A Veterans Administration employee if the evidence was given to 
that agency to obtain veteran's benefits;

[[Page 205]]

    (4) A U.S. Consular Officer or employee of the Department of State 
authorized to certify evidence received outside the United States; or
    (5) An employee of a State Agency or State Welfare Office authorized 
to certify copies of original records in the agency's or office's files.
    (c) Uncertified copies of original records. You may give us an 
uncertified photocopy of a birth registration notification as evidence 
where it is the practice of the local birth registrar to issue them in 
this way.



Sec. 404.708  How we decide what is enough evidence.

    When you give us evidence, we examine it to see if it is convincing 
evidence. If it is, no other evidence is needed. In deciding if evidence 
is convincing, we consider whether--
    (a) Information contained in the evidence was given by a person in a 
position to know the facts;
    (b) There was any reason to give false information when the evidence 
was created;
    (c) Information contained in the evidence was given under oath, or 
with witnesses present, or with the knowledge there was a penalty for 
giving false information;
    (d) The evidence was created at the time the event took place or 
shortly thereafter;
    (e) The evidence has been altered or has any erasures on it; and
    (f) Information contained in the evidence agrees with other 
available evidence, including our records.



Sec. 404.709  Preferred evidence and other evidence.

    If you give us the type of evidence we have shown as preferred in 
the following sections of this subpart, we will generally find it is 
convincing evidence. This means that unless we have information in our 
records that raises a doubt about the evidence, other evidence of the 
same fact will not be needed. If preferred evidence is not available, we 
will consider any other evidence you give us. If this other evidence is 
several different records or documents which all show the same 
information, we may decide it is convincing evidence even though it is 
not preferred evidence. If the other evidence is not convincing by 
itself, we will ask for additional evidence. If this additional evidence 
shows the same information, all the evidence considered together may be 
convincing. When we have convincing evidence of the facts that must be 
proven or it is clear that the evidence provided does not prove the 
necessary facts, we will make a formal decision about your benefit 
rights.

                  Evidence of Age, Marriage, and Death



Sec. 404.715  When evidence of age is needed.

    (a) If you apply for benefits, we will ask for evidence of age which 
shows your date of birth unless you are applying for--
    (1) A lump-sum death payment;
    (2) A wife's benefit and you have the insured person's child in your 
care;
    (3) A mother's or father's benefit; or
    (4) A disability benefit (or for a period of disability) and neither 
your eligibility nor benefit amount depends upon your age.
    (b) If you apply for wife's benefits while under age 62 or if you 
apply for a mother's or father's benefit, you will be asked for evidence 
of the date of birth of the insured person's children in your care.
    (c) If you apply for benefits on the earnings record of a deceased 
person, you may be asked for evidence of his or her age if this is 
needed to decide whether he or she was insured at the time of death or 
what benefit amount is payable to you.



Sec. 404.716  Type of evidence of age to be given.

    (a) Preferred evidence. The best evidence of your age, if you can 
obtain it, is either: a birth certificate or hospital birth record 
recorded before age 5; or a religious record which shows your date of 
birth and was recorded before age 5.
    (b) Other evidence of age. If you cannot obtain the preferred 
evidence of your age, you will be asked for other convincing evidence 
that shows your date of birth or age at a certain time such as: an 
original family bible or family record; school records; census

[[Page 206]]

records; a statement signed by the physician or midwife who was present 
at your birth; insurance policies; a marriage record; a passport; an 
employment record; a delayed birth certificate, your child's birth 
certificate; or an immigration or naturalization record.



Sec. 404.720  Evidence of a person's death.

    (a) When evidence of death is required. If you apply for benefits on 
the record of a deceased person, we will ask for evidence of the date 
and place of his or her death. We may also ask for evidence of another 
person's death if this is needed to prove you are eligible for benefits.
    (b) Preferred evidence of death. The best evidence of a person's 
death is--
    (1) A certified copy or extract from the public record of death, 
coroner's report of death, or verdict of a coroner's jury; or a 
certificate by the custodian of the public record of death;
    (2) A statement of the funeral director, attending physician, intern 
of the institution where death occurred;
    (3) A certified copy of, or extract from an official report or 
finding of death made by an agency or department of the United States; 
or
    (4) If death occurred outside the United States, an official report 
of death by a United States Consul or other employee of the State 
Department; or a copy of the public record of death in the foreign 
country.
    (c) Other evidence of death. If you cannot obtain the preferred 
evidence of a person's death, you will be asked to explain why and to 
give us other convincing evidence such as: the signed statements of two 
or more people with personal knowledge of the death, giving the place, 
date, and cause of death.



Sec. 404.721  Evidence to presume a person is dead.

    If you cannot prove the person is dead but evidence of death is 
needed, we will presume he or she died at a certain time if you give us 
the following evidence:
    (a) A certified copy of, or extract from, an official report or 
finding by an agency or department of the United States that a missing 
person is presumed to be dead as set out in Federal law (5 U.S.C. 5565). 
Unless we have other evidence showing an actual date of death, we will 
use the date he or she was reported missing as the date of death.
    (b) Signed statements by those in a position to know and other 
records which show that the person has been absent from his or her 
residence and has not been heard from for at least 7 years. If the 
presumption of death is not rebutted pursuant to Sec. 404.722, we will 
use as the person's date of death either the date he or she left home, 
the date ending the 7 year period, or some other date depending upon 
what the evidence shows is the most likely date of death.
    (c) If you are applying for benefits as the insured person's 
grandchild or stepgrandchild but the evidence does not identify a 
parent, we will presume the parent died in the first month in which the 
insured person became entitled to to benefits.

[43 FR 24795, June 7, 1978, as amended at 60 FR 19164, Apr. 17, 1995]



Sec. 404.722  Rebuttal of a presumption of death.

    A presumption of death made based on Sec. 404.721(b) can be rebutted 
by evidence that establishes that the person is still alive or explains 
the individual's absence in a manner consistent with continued life 
rather than death.
    Example 1:  Evidence in a claim for surviving child's benefits 
showed that the worker had wages posted to his earnings record in the 
year following the disappearance. It was established that the wages 
belonged to the worker and were for work done after his 
``disappearance.'' In this situation, the presumption of death is 
rebutted by evidence (wages belonging to the worker) that the person is 
still alive after the disappearance.
    Example 2:  Evidence shows that the worker left the family home 
shortly after a woman, whom he had been seeing, also disappeared, and 
that the worker phoned his wife several days after the disappearance to 
state he intended to begin a new life in California. In this situation 
the presumption of death is rebutted because the evidence explains the 
worker's absence in a manner consistent with continued life.

[60 FR 19165, Apr. 17, 1995]

[[Page 207]]



Sec. 404.723  When evidence of marriage is required.

    If you apply for benefits as the insured person's husband or wife, 
widow or widower, divorced wife or divorced husband, we will ask for 
evidence of the marriage and where and when it took place. We may also 
ask for this evidence if you apply for child's benefits or for the lump-
sum death payment as the widow or widower. If you are a widow, widower, 
or divorced wife who remarried after your marriage to the insured person 
ended, we may also ask for evidence of the remarriage. You may be asked 
for evidence of someone else's marriage if this is necessary to prove 
your marriage to the insured person was valid. In deciding whether the 
marriage to the insured person is valid or not, we will follow the law 
of the State where the insured person had his or her permanent home when 
you applied or, if earlier, when he or she died--see Sec. 404.770. What 
evidence we will ask for depends upon whether the insured person's 
marriage was a ceremonial marriage, a common-law marriage, or a marriage 
we will deem to be valid.

[43 FR 24795, June 7, 1978, as amended at 44 FR 34493, June 15, 1979]



Sec. 404.725  Evidence of a valid ceremonial marriage.

    (a) General. A valid ceremonial marriage is one that follows 
procedures set by law in the State or foreign country where it takes 
place. These procedures cover who may perform the marriage ceremony, 
what licenses or witnesses are needed, and similar rules. A ceremonial 
marriage can be one that follows certain tribal Indian custom, Chinese 
custom, or similar traditional procedures. We will ask for the evidence 
described in this section.
    (b) Preferred evidence. Preferred evidence of a ceremonial marriage 
is--
    (1) If you are applying for wife's or husband's benefits, signed 
statements from you and the insured about when and where the marriage 
took place. If you are applying for the lump-sum death payment as the 
widow or widower, your signed statement about when and where the 
marriage took place; or
    (2) If you are applying for any other benefits or there is evidence 
causing some doubt about whether there was a ceremonial marriage: a copy 
of the public record of marriage or a certified statement as to the 
marriage; a copy of the religious record of marriage or a certified 
statement as to what the record shows; or the original marriage 
certificate.
    (c) Other evidence of a ceremonial marriage. If preferred evidence 
of a ceremonial marriage cannot be obtained, we will ask you to explain 
why and to give us a signed statement of the clergyman or official who 
held the marriage ceremony, or other convincing evidence of the 
marriage.



Sec. 404.726  Evidence of common-law marriage.

    (a) General. A common-law marriage is one considered valid under 
certain State laws even though there was no formal ceremony. It is a 
marriage between two persons free to marry, who consider themselves 
married, live together as man and wife, and, in some States, meet 
certain other requirements. We will ask for the evidence described in 
this section.
    (b) Preferred evidence. Preferred evidence of a common-law marriage 
is--
    (1) If both the husband and wife are alive, their signed statements 
and those of two blood relatives;
    (2) If either the husband or wife is dead, the signed statements of 
the one who is alive and those of two blood relatives of the deceased 
person; or
    (3) If both the husband and wife are dead, the signed statements of 
one blood relative of each;

    Note:  All signed statements should show why the signer believes 
there was a marriage between the two persons. If a written statement 
cannot be gotten from a blood relative, one from another person can be 
used instead.

    (c) Other evidence of common-law marriage. If you cannot get 
preferred evidence of a common-law marriage, we will ask you to explain 
why and to give us other convincing evidence of the marriage. We may not 
ask you for statements from a blood relative or other person if we 
believe other evidence presented to us proves the common-law marriage.

[[Page 208]]



Sec. 404.727  Evidence of a deemed valid marriage.

    (a) General. A deemed valid marriage is a ceremonial marriage we 
consider valid even though the correct procedures set by State law were 
not strictly followed or a former marriage had not yet ended. We will 
ask for the evidence described in this section.
    (b) Preferred evidence. Preferred evidence of a deemed valid 
marriage is--
    (1) Evidence of the ceremonial marriage as described in 
Sec. 404.725(b)(2);
    (2) If the insured person is alive, his or her signed statement that 
the other party to the marriage went through the ceremony in good faith 
and his or her reasons for believing the marriage was valid or believing 
the other party thought it was valid;
    (3) The other party's signed statement that he or she went through 
the marriage ceremony in good faith and his or her reasons for believing 
it was valid;
    (4) If needed to remove a reasonable doubt, the signed statements of 
others who might have information about what the other party knew about 
any previous marriage or other facts showing whether he or she went 
through the marriage in good faith; and
    (5) Evidence the parties to the marriage were living in the same 
household when you applied for benefits or, if earlier, when the insured 
person died (see Sec. 404.760).
    (c) Other evidence of a deemed valid marriage. If you cannot obtain 
preferred evidence of a deemed valid marriage, we will ask you to 
explain why and to give us other convincing evidence of the marriage.



Sec. 404.728  Evidence a marriage has ended.

    (a) When evidence is needed that a marriage has ended. If you apply 
for benefits as the insured person's divorced wife or divorced husband, 
you will be asked for evidence of your divorce. If you are the insured 
person's widow or divorced wife who had remarried but that husband died, 
we will ask you for evidence of his death. We may ask for evidence that 
a previous marriage you or the insured person had was ended before you 
married each other if this is needed to show the latter marriage was 
valid. If you apply for benefits as an unmarried person and you had a 
marriage which was annulled, we will ask for evidence of the annulment. 
We will ask for the evidence described in this section.
    (b) Preferred evidence. Preferred evidence a marriage has ended is--
    (1) A certified copy of the decree of divorce or annulment; or
    (2) Evidence the person you married has died (see Sec. 404.720).
    (c) Other evidence a marriage has ended. If you cannot obtain 
preferred evidence the marriage has ended, we will ask you to explain 
why and to give us other convincing evidence the marriage has ended.

[43 FR 24795, June 7, 1978, as amended at 44 FR 34493, June 15, 1979]

               Evidence for Child's and Parent's Benefits



Sec. 404.730  When evidence of a parent or child relationship is needed.

    If you apply for parent's or child's benefits, we will ask for 
evidence showing your relationship to the insured person. What evidence 
we will ask for depends on whether you are the insured person's natural 
parent or child; or whether you are the stepparent, stepchild, 
grandchild, stepgrandchild, adopting parent or adopted child.



Sec. 404.731  Evidence you are a natural parent or child.

    If you are the natural parent of the insured person, we will ask for 
a copy of his or her public or religious birth record made before age 5. 
If you are the natural child of the insured person, we will ask for a 
copy of your public or religious birth record made before age 5. In 
either case, if this record shows the same last name for the insured and 
the parent or child, we will accept it as convincing evidence of the 
relationship. However, if other evidence raises some doubt about this 
record or if the record cannot be gotten, we will ask for other evidence 
of the relationship. We may also ask for evidence of marriage of the 
insured person or of his or her parent if this is needed to remove any 
reasonable doubt about the relationship. To show you are the child of 
the insured person, you may be asked

[[Page 209]]

for evidence you would be able to inherit his or her personal property 
under State law where he or she had a permanent home (see Sec. 404.770). 
In addition, we may ask for the insured persons signed statement that 
you are his or her natural child, or for a copy of any court order 
showing the insured has been declared to be your natural parent or any 
court order requiring the insured to contribute to you support because 
you are his or her son or daughter.



Sec. 404.732  Evidence you are a stepparent or stepchild.

    If you are the stepparent or stepchild of the insured person, we 
will ask for the evidence described in Sec. 404.731 or Sec. 404.733 that 
which shows your natural or adoptive relationship to the insured 
person's husband, wife, widow, or widower. We will also ask for evidence 
of the husband's, wife's, widow's, or widower's marriage to the insured 
person--see Sec. 404.725.



Sec. 404.733  Evidence you are the legally adopting parent or legally adopted child.

    If you are the adopting parent or adopted child, we will ask for the 
following evidence:
    (a) A copy of the birth certificate made following the adoption; or 
if this cannot be gotten, other evidence of the adoption; and, if 
needed, evidence of the date of adoption;
    (b) If the widow or widower adopted the child after the insured 
person died, the evidence described in paragraph (a) of this section; 
your written statement whether the insured person was living in the same 
household with the child when he or she died (see Sec. 404.760); what 
support the child was getting from any other person or organization; and 
if the widow or widower had a deemed valid marriage with the insured 
person, evidence of that marriage--see Sec. 404.727;
    (c) If you are the insured's stepchild, grandchild, or 
stepgrandchild as well as his or her adopted child, we may also ask you 
for evidence to show how you were related to the insured before the 
adoption.



Sec. 404.734  Evidence you are an equitably adopted child.

    In many States, the law will treat someone as a child of another if 
he or she agreed to adopt the child, the natural parents or the person 
caring for the child were parties to the agreement, he or she and the 
child then lived together as parent and child, and certain other 
requirements are met. If you are a child who had this kind or 
relationship to the insured person (or to the insured persons's wife, 
widow, or husband), we will ask for evidence of the agreement if it is 
in writing. If it is not in writing or cannot be gotten, other evidence 
may be accepted. Also, the following evidence will be asked for: Written 
statements of your natural parents and the adopting parents and other 
evidence of the child's relationship to the adopting parents.



Sec. 404.735  Evidence you are the grandchild or stepgrandchild.

    If you are the grandchild or stepgrandchild of the insured person, 
we will ask you for the kind of evidence described in Secs. 404.731 
through 404.733 that shows your relationship to your parent and your 
parent's relationship to the insured.



Sec. 404.736  Evidence of a child's dependency.

    (a) When evidence of a child's dependency is needed. If you apply 
for child's benefit's we may ask for evidence you were the insured 
person's dependent at a specific time--usually the time you applied or 
the time the insured died or became disabled. What evidence we ask for 
depends upon how you are related to the insured person.
    (b) Natural or adopted child. If you are the insured person's 
natural or adopted child, we may ask for the following evidence:
    (1) A signed statement by someone who knows the facts that confirms 
this relationship and which shows whether you were legally adopted by 
someone other than the insured. If you were adopted by someone else 
while the insured person was alive, but the adoption was annulled, we 
may ask for a certified copy of the annulment decree or other convincing 
evidence of the annulment.

[[Page 210]]

    (2) A signed statement by someone in a position to know showing when 
and where you lived with the insured and when and why you may have lived 
apart; and showing what contributions the insured made to your support 
and when and how they were made.
    (c) Stepchild. If you are the insured person's stepchild, we will 
ask for the following evidence:
    (1) A signed statement by someone in a position to know--showing 
when and where you lived with the insured and when and why you may have 
lived apart.
    (2) A signed statement by someone in a position to know showing you 
received at least one-half of your support from the insured for the one-
year period ending at one of the times mentioned in paragraph (a) of 
this section; and the income end support you had in this period from any 
other source.
    (d) Grandchild or Stepgrandchild. If you are the insured person's 
grandchild or stepgrandchild, we will ask for evidence described in 
paragraph (c) of this section showing that you were living together with 
the insured and receiving one-half of your support from him or her for 
the year before the insured became entitled to benefits or to a period 
of disability, or died. We will also ask for evidence of your parent's 
death or disability.



Sec. 404.745  Evidence of school attendance for child age 18 or older.

    If you apply for child's benefits as a student age 18 or over, we 
may ask for evidence you are attending school. We may also ask for 
evidence from the school you attend showing your status at the school. 
We will ask for the following evidence:
    (a) Your signed statement that you are attending school full-time 
and are not being paid by an employer to attend school.
    (b) If you apply before the school year has started and the school 
is not a high school, a letter of acceptance from the school, receipted 
bill, or other evidence showing you have enrolled or been accepted at 
that school.



Sec. 404.750  Evidence of a parent's support.

    If you apply for parent's benefits, we will ask you for evidence to 
show that you received at least one-half of your support from the 
insured person in the one-year period before he or she died or became 
disabled. We may also ask others who know the facts for a signed 
statement about your sources of support. We will ask you for the 
following evidence:
    (a) The parent's signed statement showing his or her income, any 
other sources of support, and the amount from each source over the one-
year period.
    (b) If the statement described in paragraph (a) of this section 
cannot be obtained, other convincing evidence that the parent received 
one-half of his or her support from the insured person.

                       Other Evidence Requirements



Sec. 404.760  Evidence of living in the same household with insured person.

    If you apply for the lump-sum death payment as the insured person's 
widow or widower, or for wife's, husband's, widow's, or widower's 
benefits based upon a deemed valid marriage as described in 
Sec. 404.727, we will ask for evidence you and the insured were living 
together in the same household when he or she died; or if the insured is 
alive, when you applied for benefits. We will ask for the following as 
evidence of this:
    (a) If the insured person is living, his or her signed statement and 
yours showing whether you were living together when you applied for 
benefits.
    (b) If the insured person is dead, your signed statement showing 
whether you were living together when he or she died.
    (c) If you and the insured person were temporarily living apart, a 
signed statement explaining where each was living, how long the 
separation lasted, and why you were separated. If needed to remove any 
reasonable doubts about this, we may ask for the signed statements of 
others in a position to know, or for other convincing evidence you

[[Page 211]]

and the insured were living together in the same household.



Sec. 404.762  Evidence of having a child in your care.

    If you are under age 65 and apply for wife's benefits based upon 
caring for a child, or for mother's benefits as a widow or divorced 
wife, or for father's benefits as a widower, we will ask for evidence 
that you have the insured person's child in your care. What evidence we 
will ask for depends upon whether the child is living with you or with 
someone else. You will be asked to give the following evidence:
    (a) If the child is living with you, your signed statement showing 
that the child is living with you.
    (b) If the child is living with someone else--
    (1) Your signed statement showing with whom he or she is living and 
why he or she is living with someone else. We will also ask when he or 
she last lived with you and how long this separation will last, and what 
care and contributions you provide for the child;
    (2) The signed statement of the one with whom the child is living 
showing what care you provide and the sources and amounts of support 
received for the child. If the child is in an institution, an official 
there should sign the statement. These statements are preferred 
evidence. If there is a court order or written agreement showing who has 
custody of the child, you may be asked to give us a copy; and
    (3) If you cannot get the preferred evidence described in paragraph 
(b)(2) of this section, we will ask for other convincing evidence that 
the child is in your care.



Sec. 404.770  Evidence of where the insured person had a permanent home.

    (a) When evidence of the insured's permanent home is needed. We may 
ask for evidence of where the insured person's permanent home was at the 
time you applied or, if earlier, the time he or she died if--
    (1) You apply for benefits as the insured's wife, husband, widow, 
widower, parent or child; and
    (2) Your relationship to the insured depends upon the State law that 
would be followed in the place where the insured had his or her 
permanent home when you applied for benefits or when he or she died.
    (b) What evidence is needed. We will ask for the following evidence 
of the insured person's permanent home:
    (1) Your signed statement showing where the insured considered his 
permanent home to be.
    (2) If the statement in paragraph (b)(1) of this section or other 
evidence we have raises a reasonable doubt about where the insured's 
permanent home was, evidence of where he or she paid personal, property, 
or income taxes, or voted; or other convincing evidence of where his or 
her permanent home was.



Sec. 404.780  Evidence of ``good cause'' for exceeding time limits on accepting proof of support or application for a lump-sum death payment.

    (a) When evidence of good cause is needed. We may ask for evidence 
that you had good cause (as defined in Sec. 404.370(f)) for not giving 
us sooner proof of the support you received from the insured as his or 
her parent. We may also ask for evidence that you had good cause (as 
defined in Sec. 404.621(b)) for not applying sooner for the lump-sum 
death payment. You may be asked for evidence of good cause for these 
delays if--
    (1) You are the insured person's parent giving us proof of support 
more than 2 years after he or she died, or became disabled; or
    (2) You are applying for the lump-sum death payment more than 2 
years after the insured died.
    (b) What evidence of good cause is needed. We will ask for the 
following evidence of good cause:
    (1) Your signed statement explaining why you did not give us the 
proof of support or the application for lump-sum death payment within 
the specified 2 year period.
    (2) If the statement in paragraph (b)(1) of the section or other 
evidence raises a reasonable doubt whether there was good cause, other 
convincing evidence of this.

[43 FR 24795, June 7, 1978, as amended at 44 FR 34493, June 15, 1979]

[[Page 212]]



                     Subpart I--Records of Earnings

    Authority:  Secs. 205(a), (c)(1), (c)(2)(A), (c)(4), (c)(5), (c)(6), 
and (p), 702(a)(5), and 1143 of the Social Security Act (42 U.S.C. 
405(a), (c)(1), (c)(2)(A), (c)(4), (c)(5), (c)(6), and (p), 902(a)(5), 
and 1320b-13).

    Source:  44 FR 38454, July 2, 1979, unless otherwise noted.

                           General Provisions



Sec. 404.801  Introduction.

    The Social Security Administration (SSA) keeps a record of the 
earnings of all persons who work in employment or self-employment 
covered under social security. We use these earnings records to 
determine entitlement to and the amount of benefits that may be payable 
based on a person's earnings under the retirement, survivors', 
disability and health insurance program. This subpart tells what is 
evidence of earnings, how you can find out what the record of your 
earnings shows, and how and under what circumstances the record of your 
earnings may be changed to correct errors.



Sec. 404.802  Definitions.

    For the purpose of this subpart--
    Earnings means wages and self-employment income earned by a person 
based on work covered by social security. (See subpart K for the rules 
about what constitutes wages and self-employment income for benefit 
purposes.)
    Period means a taxable year when referring to self-employment 
income. When referring to wages it means a calendar quarter if the wages 
were reported or should have been reported quarterly by your employer or 
a calendar year if the wages were reported or should have been reported 
annually by your employer.
    Record of earnings, earnings record, or record means SSA's records 
of the amounts of wages paid to you and the amounts of self-employment 
income you received, the periods in which the wages were paid and the 
self-employment income was received, and the quarters of coverage which 
you earned based on these earnings.
    Survivor means your spouse, divorced wife, child, or parent, who 
survives you. Survivor also includes your surviving divorced wife who 
may be entitled to benefits as a surviving divorced mother.
    Tax return means, as appropriate, a tax return of wages or a tax 
return of self-employment income (including information returns and 
other written statements filed with the Commissioner of Internal Revenue 
under chapter 2 or 21 of the Internal Revenue Code of 1954, as amended).
    Time limit means a period of time 3 years, 3 months, and 15 days 
after any year in which you received earnings. The period may be 
extended by the Soldiers and Sailors Relief Act of 1940 because of your 
military service or the military service of certain relatives who 
survive you (50 U.S.C. App. 501 and following sections). Where the time 
limit ends on a Federal nonwork day, we will extend it to the next 
Federal work day.
    Wage report means a statement filed by a State under section 218 of 
the Social Security Act or related regulations. This statement includes 
wage amounts for which a State is billed and wage amounts for which 
credits or refunds are made to a State according to an agreement under 
section 218 of the Act.
    We, us, or our means the Social Security Administration (SSA).
    Year means a calendar year when referring to wages and a taxable 
year when referring to self-employment income.
    You or your means any person for whom we maintain a record of 
earnings.



Sec. 404.803  Conclusiveness of the record of your earnings.

    (a) Generally. For social security purposes, SSA records are 
evidence of the amounts of your earnings and the periods in which they 
were received.
    (b) Before time limit ends. Before the time limit ends for a year, 
SSA records are evidence, but not conclusive evidence, of the amounts 
and periods of your earnings in that year.
    (c) After time limit ends. After the time limit ends for a year--
    (1) If SSA records show an entry of self-employment income or wages 
for an employer for a period in that year, our records are conclusive 
evidence of

[[Page 213]]

your self-employment income in that year or the wages paid to you by 
that employer and the periods in which they were received unless one of 
the exceptions in Sec. 404.822 applies;
    (2) If SSA records show no entry of wages for an employer for a 
period in that year, our records are conclusive evidence that no wages 
were paid to you by that employer in that period unless one of the 
exceptions in Sec. 404.822 applies; and
    (3) If SSA records show no entry of self-employment income for that 
year, our records are conclusive evidence that you did not receive self-
employement income in that year unless the exception in 
Sec. 404.822(b)(2) (i) or (iii) applies.

                     Obtaining Earnings Information



Sec. 404.810  How to obtain a statement of earnings and a benefit estimate statement.

    (a) Right to a statement of earnings and a benefit estimate. You or 
your legal representative or, after your death, your survivor or the 
legal representative of your estate may obtain a statement of your 
earnings as shown on our records at the time of the request. If you have 
a social security number and have wages or net earnings from self-
employment, you may also request and receive an earnings statement that 
will include an estimate of the monthly old-age, disability, 
dependents', and survivors' insurance benefits potentially payable on 
your earnings record, together with a description of the benefits 
payable under the medicare program. You may request these statements by 
writing, calling, or visiting a social security office.
    (b) Contents of request. When you request a statement of your 
earnings, we will ask you to complete a prescribed form, giving us your 
name, social security number, date of birth, and sex. You, your 
authorized representative or, after your death, your survivor or the 
legal representative of your estate will be asked to sign and date the 
form. If you are requesting an estimate of the monthly benefits 
potentially payable on your earnings record, we will also ask you to 
give us the amount of your earnings for the last year, an estimate of 
your earnings for the current year, an estimate of your earnings for 
future years before your planned retirement, and the age at which you 
plan to retire, so that we can give you a more realistic estimate of the 
benefits that may be payable on your record. A request for a statement 
of earnings and a benefit estimate not made on the prescribed form will 
be accepted if the request is in writing, is signed and dated by the 
appropriate individual noted above, and contains all the information 
that is requested on the prescribed form.

[57 FR 54918, Nov. 23, 1992]



Sec. 404.811  The statement of earnings and benefit estimates you requested.

    (a) General. After receiving a request for a statement of earnings 
and the information we need to comply with the request, we will provide 
you or your authorized representative a statement of the earnings we 
have credited to your record at the time of your request. With the 
statement of earnings, we will include estimates of the benefits 
potentially payable on your record, unless you do not have the required 
credits (quarters of coverage) for any kind of benefit(s). (However, see 
paragraph (b)(3) of this section regarding the possibility of our 
estimating up to eight additional credits on your record.) If we do not 
provide a statement of earnings and an estimate of all the benefits 
potentially payable, or any other information you requested, we will 
explain why.
    (b) Contents of statement of earnings and benefit estimates. The 
statement of your earnings and benefit estimates will contain the 
following information:
    (1) Your social security taxed earnings as shown by our records as 
of the date of your request;
    (2) An estimate of the social security and medicare hospital 
insurance taxes paid on your earnings (although we do not maintain such 
tax information);
    (3) The number of credits, i.e., quarters of coverage, not exceeding 
40, you have for both social security and medicare hospital insurance 
purposes, and the number you need to be eligible for social security and 
also for medicare hospital insurance coverage. If you do not already 
have the required credits

[[Page 214]]

(quarters of coverage) to be eligible to receive social security 
benefits and medicare hospital insurance coverage, we may include up to 
eight additional estimated credits (four per year) based on the earnings 
you told us you had for last year and this year that we have not yet 
entered on your record;
    (4) A statement as to whether you meet the credits (quarters of 
coverage) requirements, as described in subpart B of this part, for each 
type of social security benefit when we prepare the benefit estimates, 
and also whether you are eligible for medicare hospital insurance 
coverage;
    (5) Estimates of the monthly retirement (old-age), disability, 
dependents' and survivors' insurance benefits potentially payable on 
your record if you meet the credits (quarters of coverage) requirements. 
The benefit estimates we send you will be based partly on your stated 
earnings for last year (if not yet on your record), your estimate of 
your earnings for the current year and for future years before you plan 
to retire, and on the age at which you plan to retire. The estimate will 
include the retirement (old-age) insurance benefits you could receive at 
age 62 (or your current age if you are already over age 62), at full 
retirement age (currently age 65 to 67, depending on your year of birth) 
or at your current age if you are already over full retirement age, and 
at age 70;
    (6) A description of the coverage under the medicare program;
    (7) A reminder of your right to request a correction of your 
earnings record; and
    (8) A remark that an annually updated statement is available on 
request.

[61 FR 18076, Apr. 24, 1996]



Sec. 404.812  Statement of earnings and benefit estimates sent without request.

    (a) Who will be sent a statement. Unless one of the conditions in 
paragraph (b) of this section applies to you, we will send you, without 
request, a statement of earnings and benefit estimates if:
    (1) You have a social security account number;
    (2) You have wages or net earnings from self-employment on your 
social security record;
    (3) You have attained age 25 or older, as explained in paragraph 
(c)(3) of this section; and
    (4) We can determine your current mailing address.
    (b) Who will not be sent a statement. We will not send you an 
unrequested statement if any of the following conditions apply:
    (1) You do not meet one or more of the conditions of paragraph (a) 
of this section;
    (2) Our records contain a notation of your death;
    (3) You are entitled to benefits under title II of the Act;
    (4) We have already sent you a statement, based on your request, in 
the fiscal year we selected you to receive an unrequested statement;
    (5) We cannot obtain your address (see paragraph (c)(2) of this 
section); or
    (6) We are correcting your social security earnings record when we 
select you to receive a statement of earnings and benefit estimates.
    (c) The selection and mailing process. Subject to the provisions of 
paragraphs (a) and (b) of this section, we will use the following 
process for sending statements without requests:
    (1) Selection. We will use our records of assigned social security 
account numbers to identify individuals to whom we will send statements.
    (2) Addresses. If you are living in one of the 50 States or the 
District of Columbia, our current procedure is to get your address from 
individual taxpayer files of the Internal Revenue Service, as authorized 
by section 6103(m)(7) of the Internal Revenue Code (26 U.S.C. 
6103(m)(7)). If you live in Puerto Rico, the Virgin Islands, or Guam, we 
will get your address from the taxpayer records of the place in which 
you live.
    (3) Age. If you have attained age 60 on or before September 30, 
1995, we will send you a statement by that date. If you attain age 60 on 
or after October 1, 1995 but no later than September 30, 1999, we will 
send you a statement in the fiscal year in which you attain age 60, or 
in an earlier year as resources allow. Also, we will inform you that an

[[Page 215]]

annually updated statement is available on request. Beginning October 1, 
1999, we will send you a statement each year in which you are age 25 or 
older.
    (4) Ineligible. If we do not send you a statement because one or 
more conditions in paragraph (b) of this section apply when you are 
selected, we will send a statement in the first appropriate fiscal year 
thereafter in which you do qualify.
    (5) Undeliverable. If the statement we send you is returned by the 
Post Office as undeliverable, we will not remail it.
    (d) Contents of statement of earnings and benefit estimates. To 
prepare your statement and estimate your benefits, we will use the 
earnings in our records. If there are earnings recorded for you in 
either of the two years before the year in which you are selected to get 
a statement, we will use the later of these earnings as your earnings 
for the current year and future years when we estimate your benefits. In 
addition, if you do not already have the required credits (quarters of 
coverage) to be eligible to receive benefits, we will use that last 
recorded earnings amount to estimate up to eight additional credits 
(four per year) for last year and the current year if they are not yet 
entered on your record. If there are no earnings entered on your record 
in either of the two years preceding the year of selection, we will not 
estimate current and future earnings or additional credits for you. Your 
earnings and benefit estimates statement will contain the following 
information:
    (1) Your social security taxed earnings as shown by our records as 
of the date we select you to receive a statement;
    (2) An estimate of the social security and medicare hospital 
insurance taxes paid on your earnings (although we do not maintain such 
tax information);
    (3) The number of credits, i.e., quarters of coverage, not exceeding 
40 (as described in paragraph (d) of this section), that you have for 
both social security and medicare hospital insurance purposes, and the 
number you need to be eligible for social security benefits and also for 
medicare hospital insurance coverage;
    (4) A statement as to whether you meet the credit (quarters of 
coverage) requirements, as described in subpart B of this part, for each 
type of social security benefit when we prepare the benefit estimates, 
and also whether you are eligible for medicare hospital insurance 
coverage;
    (5) Estimates of the monthly retirement (old-age), disability, 
dependents' and survivors' insurance benefits potentially payable on 
your record if you meet the credits (quarters of coverage) requirements. 
If you are age 50 or older, the estimates will include the retirement 
(old-age) insurance benefits you could receive at age 62 (or your 
current age if you are already over age 62), at full retirement age 
(currently age 65 to 67, depending on your year of birth) or at your 
current age if you are already over full retirement age, and at age 70. 
If you are under age 50, instead of estimates, we may provide a general 
description of the benefits (including auxiliary benefits) that are 
available upon retirement;
    (6) A description of the coverage provided under the medicare 
program;
    (7) A reminder of your right to request a correction of your 
earnings record; and
    (8) A remark that an annually updated statement is available on 
request.

[61 FR 18077, Apr. 24, 1996]

                     Correcting the Earnings Record



Sec. 404.820  Filing a request for correction of the record of your earnings.

    (a) When to file a request for correction. You or your survivor must 
file a request for correction of the record of your earnings within the 
time limit for the year being questioned unless one of the exceptions in 
Sec. 404.822 applies.
    (b) Contents of a request. (1) A request for correction of an 
earnings record must be in writing and must state that the record is 
incorrect.
    (2) A request must be signed by you or your survivor or by a person 
who may sign an application for benefits for you or for your survivor as 
described in Sec. 404.612.
    (3) A request should state the period being questioned.
    (4) A request should describe, or have attached to it, any available 
evidence

[[Page 216]]

which shows that the record of earnings is incorrect.
    (c) Where to file a request. A request may be filed with an SSA 
employee at one of our offices or with an SSA employee who is authorized 
to receive a request at a place other than one of our offices. A request 
may be filed with the Veterans Administration Regional Office in the 
Philippines or with any U.S. Foreign Service Office.
    (d) When a request is considered filed. A request is considered 
filed on the day it is received by any of our offices, by an authorized 
SSA employee, by the Veterans Administration Regional Office in the 
Philippines, or by any U.S. Foreign Service Office. If using the date we 
receive a mailed request disadvantages the requester, we will use the 
date the request was mailed to us as shown by a U.S. postmark. If the 
postmark is unreadable or there is no postmark, we will consider other 
evidence of the date when the request was mailed.
    (e) Withdrawal of a request for correction. A request for correction 
of SSA records of your earnings may be withdrawn as described in 
Sec. 404.640.
    (f) Cancellation of a request to withdraw. A request to withdraw a 
request for correction of SSA records of your earnings may be cancelled 
as described in Sec. 404.641.
    (g) Determinations on requests. When we receive a request described 
in this section, we will make a determination to grant or deny the 
request. If we deny the request, this determination may be appealed 
under the provisions of subpart J of this part.



Sec. 404.821  Correction of the record of your earnings before the time limit ends.

    Before the time limit ends for any year, we will correct the record 
of your earnings for that year for any reason if satisfactory evidence 
shows SSA records are incorrect. We may correct the record as the result 
of a request filed under Sec. 404.820 or we may correct it on our own.



Sec. 404.822  Correction of the record of your earnings after the time limit ends.

    (a) Generally. After the time limit for any year ends, we may 
correct the record of your earnings for that year if satisfactory 
evidence shows SSA records are incorrect and any of the circumstances in 
paragraphs (b) through (e) of this section applies.
    (b) Correcting SSA records to agree with tax returns. We will 
correct SSA records to agree with a tax return of wages or self-
employment income to the extent that the amount of earnings shown in the 
return is correct.
    (1) Tax returns of wages. We may correct the earnings record to 
agree with a tax return of wages or with a wage report of a State.
    (2) Tax returns of self-employment income--(i) Return filed before 
the time limit ended. We may correct the earnings record to agree with a 
tax return of self-employment income filed before the end of the time 
limit.
    (ii) Return filed after time limit ended. We may remove or reduce, 
but not increase, the amount of self-employment income entered on the 
earnings record to agree with a tax return of self-employment income 
filed after the time limit ends.
    (iii) Self-employment income entered in place of erroneously entered 
wages. We may enter self-employment income for any year up to an amount 
erroneously entered in SSA records as wages but which was later removed 
from the records. However, we may enter self-employment income under 
this paragraph only if--
    (A) An amended tax return is filed before the time limit ends for 
the year in which the erroneously entered wages were removed; or
    (B) Net earnings from self-employment, which are not already entered 
in the record of your earnings, were included in a tax return filed 
before the end of the time limit for the year in which the erroneously 
entered wages were removed.
    (c) Written request for correction or application for benefits filed 
before the time limit ends--(1) Written request for correction. We may 
correct an earnings

[[Page 217]]

record if you or your survivor files a request for correction before the 
time limit for that year ends. The request must state that the earnings 
record for that year is incorrect. However, we may not correct the 
record under this paragraph after our determination on the request 
becomes final.
    (2) Application for benefits. We may correct an earnings record if 
an application is filed for monthly benefits or for a lump-sum death 
payment before the time limit for that year ends. However, we may not 
correct the record under this paragraph after our determination on the 
application becomes final.
    (3) See subpart J for the rules on the finality of determinations.
    (d) Transfer of wages to or from the Railroad Retirement Board--(1) 
Wages erroneously reported. We may transfer to or from the records of 
the Railroad Retirement Board earnings which were erroneously reported 
to us or to the Railroad Retirement Board.
    (2) Earnings certified by Railroad Retirement Board. We may enter 
earnings for railroad work under subpart O if the earnings are certified 
by the Railroad Retirement Board.
    (e) Other circumstances permitting correction--(1) Investigation 
started before time limit ends. We may correct an earnings record if the 
correction is made as the result of an investigation started before, but 
completed after the time limit ends. An investigation is started when we 
take an affirmative step leading to a decision on a question about the 
earnings record, for example, an investigation is started when one SSA 
unit asks another unit to obtain additional information or evidence. We 
will remove or reduce earnings on the record under this paragraph only 
if we carried out the investigation as promptly as circumstances 
permitted.
    (2) Error apparent on face of records. We may correct an earnings 
record to correct errors, such as mechanical or clerical errors, which 
can be identified and corrected without going beyond any of the 
pertinent SSA records.
    (3) Fraud. We may change any entry which was entered on the earnings 
record as the result of fraud.
    (4) Entries for wrong person or period. We may correct errors in SSA 
records resulting from earnings being entered for the wrong person or 
period.
    (5) Less than correct wages on SSA records. We may enter wages paid 
to you by an employer for a period if no part of those wages or less 
than the correct amount of those wages is entered on SSA records.
    (6) Wage payments under a statute. We may enter and allocate wages 
awarded to you for a period as the result of a determination or 
agreement approved by a court or administrative agency that enforces 
Federal or State statutes protecting your right to employment or wages.

[44 FR 38454, July 2, 1979, as amended at 57 FR 21600, May 21, 1992]



Sec. 404.823  Correction of the record of your earnings for work in the employ of the United States.

    We may correct the record of your earnings to remove, reduce, or 
enter earnings for work in the employ of the United States only if--
    (a) Correction is permitted under Sec. 404.821 or Sec. 404.822; and
    (b) Any necessary determinations concerning the amount of 
remuneration paid for your work and the periods for which such 
remuneration was paid have been made as shown by--
    (1) A tax return filed under section 3122 of the Internal Revenue 
Code (26 U.S.C. 3122); or
    (2) A certification by the head of the Federal agency or 
instrumentality of which you have been an employee or his or her agent. 
A Federal instrumentality for these purposes includes a nonappropriated 
fund activity of the armed forces or Coast Guard.

[44 FR 38454, July 2, 1979, as amended at 55 FR 24891, June 19, 1990]

         Notice of Removal or Reduction of an Entry of Earnings



Sec. 404.830  Notice of removal or reduction of your wages.

    If we remove or reduce an amount of wages entered on the record of 
your earnings, we will notify you of this correction if we previously 
notified you of the amount of your wages for the period involved. We 
will notify your survivor if we previously notified you or

[[Page 218]]

your survivor of the amount of your earnings for the period involved.



Sec. 404.831  Notice of removal or reduction of your self-employment income.

    If we remove or reduce an amount of self-employment income entered 
on the record of your earnings, we will notify you of this correction. 
We will notify your survivor if we previously notified you or your 
survivor of the amount of your earnings for the period involved.



Subpart J--Determinations, Administrative Review Process, and Reopening 
                     of Determinations and Decisions

    Authority:  Secs. 201(j), 205(a), (b), (d)-(h), and (j), 221, 225, 
and 702(a)(5) of the Social Security Act (42 U.S.C. 401(j), 405(a), (b), 
(d)-(h), and (j), 421, 425, and 902(a)(5)); 31 U.S.C. 3720A; sec. 5, 
Pub. L. 97-455, 96 Stat. 2500 (42 U.S.C. 405 note); secs. 5, 6(c)-(e), 
and 15, Pub. L. 98-460, 98 Stat. 1802 (42 U.S.C. 421 note).

    Source:  45 FR 52081, Aug. 5, 1980, unless otherwise noted.

          Introduction, Definitions, and Initial Determinations



Sec. 404.900  Introduction.

    (a) Explanation of the administrative review process. This subpart 
explains the procedures we follow in determining your rights under title 
II of the Social Security Act. The regulations describe the process of 
administrative review and explain your right to judicial review after 
you have taken all the necessary administrative steps. These procedures 
apply also to persons claiming certain benefits under title XVIII of the 
Act (Medicare); see 42 CFR 405.701(c). The administrative review process 
consists of several steps, which usually must be requested within 
certain time periods and in the following order:
    (1) Initial determination. This is a determination we make about 
your entitlement or your continuing entitlement to benefits or about any 
other matter, as discussed in Sec. 404.902, that gives you a right to 
further review.
    (2) Reconsideration. If you are dissatisfied with an initial 
determination, you may ask us to reconsider it.
    (3) Hearing before an administrative law judge. If you are 
dissatisfied with the reconsideration determination, you may request a 
hearing before an administrative law judge.
    (4) Appeals Council review. If you are dissatisfied with the 
decision of the administrative law judge, you may request that the 
Appeals Council review the decision.
    (5) Federal court review. When you have completed the steps of the 
administrative review process listed in paragraphs (a)(1) through (a)(4) 
of this section, we will have made our final decision. If you are 
dissatisfied with our final decision, you may request judicial review by 
filing an action in a Federal district court.
    (6) Expedited appeals process. At some time after your initial 
determination has been reviewed, if you have no dispute with our 
findings of fact and our application and interpretation of the 
controlling laws, but you believe that a part of the law is 
unconstitutional, you may use the expedited appeals process. This 
process permits you to go directly to a Federal district court so that 
the constitutional issue may be resolved.
    (b) Nature of the administrative review process. In making a 
determination or decision in your case, we conduct the administrative 
review process in an informal, nonadversary manner. In each step of the 
review process, you may present any information you feel is helpful to 
your case. Subject to the limitations on Appeals Council consideration 
of additional evidence (see Secs. 404.970(b) and 404.976(b)), we will 
consider at each step of the review process any information you present 
as well as all the information in our records. You may present the 
information yourself or have someone represent you, including an 
attorney. If you are dissatisfied with our decision in the review 
process, but do not take the next step within the stated time period, 
you will lose your right to further administrative review and your right 
to judicial review, unless you can show us that there was good cause for 
your failure to make a timely request for review.

[45 FR 52081, Aug. 5, 1980, as amended at 51 FR 300, Jan 3, 1986; 51 FR 
8808, Mar. 14, 1986; 52 FR 4004, Feb. 9, 1987]

[[Page 219]]



Sec. 404.901  Definitions.

    As used in this subpart:
    Date you receive notice means 5 days after the date on the notice, 
unless you show us that you did not receive it within the 5-day period.
    Decision means the decision made by an administrative law judge or 
the Appeals Council.
    Determination means the initial determination or the reconsidered 
determination.
    Remand means to return a case for further review.
    Vacate means to set aside a previous action.
    Waive means to give up a right knowingly and voluntarily.
    We, us, or our refers to the Social Security Administration.
    You or your refers to any person claiming a right under the old age, 
disability, dependents' or survivors' benefits program.



Sec. 404.902  Administrative actions that are initial determinations.

    Initial determinations are the determinations we make that are 
subject to administrative and judicial review. The initial determination 
will state the important facts and give the reasons for our conclusions. 
In the old age, survivors' and disability insurance programs, initial 
determinations include, but are not limited to, determinations about--
    (a) Your entitlement or your continuing entitlement to benefits;
    (b) Your reentitlement to benefits;
    (c) The amount of your benefit;
    (d) A recomputation of your benefit;
    (e) A reduction in your disability benefits because you also receive 
benefits under a workmen's compensation law;
    (f) A deduction from your benefits on account of work;
    (g) A deduction from your disability benefits because you refuse to 
accept rehabilitation services;
    (h) Termination of your benefits;
    (i) Penalty deductions imposed because you failed to report certain 
events;
    (j) Any overpayment or underpayment of your benefits;
    (k) Whether an overpayment of benefits must be repaid to us;
    (l) How an underpayment of benefits due a deceased person will be 
paid;
    (m) The establishment or termination of a period of disability;
    (n) A revision of your earnings record;
    (o) Whether the payment of your benefits will be made, on your 
behalf, to a representative payee, unless you are under age 18, legally 
incompetent, or you are disabled and drug addiction or alcoholism is a 
contributing factor material to the determination of disability (as 
described in Sec. 404.1535);
    (p) Your drug addiction or alcoholism;
    (q) Who will act as your payee if we determine that representative 
payment will be made;
    (r) An offset of your benefits under Sec. 404.408b because you 
previously received supplemental security income payments for the same 
period;
    (s) Whether your completion of or continuation for a specified 
period of time in an appropriate vocational rehabilitation program will 
significantly increase the likelihood that you will not have to return 
to the disability benefit rolls and thus, whether your benefits may be 
continued even though you are not disabled;
    (t) Nonpayment of your benefits under Sec. 404.468 because of your 
confinement in a jail, prison, or other penal institution or 
correctional facility for conviction of a felony;
    (u) Whether or not you have a disabling impairment(s) as defined in 
Sec. 404.1511;
    (v) Nonpayment of your benefits under Sec. 404.469 because you have 
not furnished us satisfactory proof of your Social Security number, or, 
if a Social Security number has not been assigned to you, you have not 
filed a proper application for one; and
    (w) A claim for benefits under Sec. 404.633 based on alleged 
misinformation.

[45 FR 52081, Aug. 5, 1980, as amended at 47 FR 4988, Feb. 3, 1982; 47 
FR 31543, July 21, 1982; 49 FR 22272, May 29, 1984; 50 FR 20902, May 21, 
1985; 56 FR 41790, Aug. 23, 1991; 59 FR 44925, Aug. 31, 1994; 60 FR 
8147, Feb. 10, 1995]

[[Page 220]]



Sec. 404.903  Administrative actions that are not initial determinations.

    Administrative actions that are not initial determinations may be 
reviewed by us, but they are not subject to the administrative review 
process provided by this subpart, and they are not subject to judicial 
review. These actions include, but are not limited to, an action--
    (a) Suspending benefits pending an investigation and determination 
of any factual issue relating to a deduction on account of work;
    (b) Suspending benefits pending an investigation to determine if 
your disability has ceased;
    (c) Denying a request to be made a representative payee;
    (d) Certifying two or more family members for joint payment of 
benefits;
    (e) Withholding less than the full amount of your monthly benefit to 
recover an overpayment;
    (f) Determining the fee that may be charged or received by a person 
who has represented you in connection with a proceeding before us;
    (g) Disqualifying or suspending a person from acting as your 
representative in a proceeding before us (See Sec. 404.1745);
    (h) Compromising, suspending or terminating collection of an 
overpayment under the Federal Claims Collection Act;
    (i) Extending or not extending the time to file a report of 
earnings;
    (j) Denying your request to extend the time period for requesting 
review of a determination or a decision;
    (k) Denying your request to use the expedited appeals process;
    (l) Denying your request to reopen a determination or a decision;
    (m) Withholding temporarily benefits based on a wage earner's 
estimate of earnings to avoid creating an overpayment;
    (n) Determining whether (and the amount of) travel expenses incurred 
are reimbursable in connection with proceedings before us;
    (o) Denying your request to readjudicate your claim and apply an 
Acquiescence Ruling;
    (p) Findings on whether we can collect an overpayment by using the 
Federal income tax refund offset procedure (see Sec. 404.523);
    (q) Determining whether an organization may collect a fee from you 
for expenses it incurred in serving as your representative payee (see 
Sec. 404.2040a);
    (r) Declining under Sec. 404.633(f) to make a determination on a 
claim for benefits based on alleged misinformation because one or more 
of the conditions specified in Sec. 404.633(f) are not met; and
    (s) The assignment of a monthly payment day (see Sec. 404.1807).

[45 FR 52081, Aug. 5, 1980, as amended at 51 FR 8808, Mar. 14, 1986; 55 
FR 1018, Jan. 11, 1990; 56 FR 52469, Oct. 21, 1991; 57 FR 23057, June 1, 
1992; 59 FR 44925, Aug. 31, 1994; 62 FR 6120, Feb. 11, 1997]

    Effective Date Note:  At 62 FR 6120, Feb. 11, 1997, Sec. 404.903 was 
amended by removing the word ``and'' from the end of paragraph (r), 
removing the period at the end of paragraph (s) and adding a semicolon 
and the word ``and'', and adding a new paragraph (s), effective May 1, 
1997.



Sec. 404.904  Notice of the initial determination.

    We shall mail a written notice of the initial determination to you 
at your last known address. The reasons for the initial determination 
and the effect of the initial determination will be stated in the 
notice. The notice also informs you of the right to a reconsideration. 
We will not mail a notice if the beneficiary's entitlement to benefits 
has ended because of his or her death.

[51 FR 300, Jan. 3, 1986]



Sec. 404.905  Effect of an initial determination.

    An initial determination is binding unless you request a 
reconsideration within the stated time period, or we revise the initial 
determination.

[51 FR 300, Jan. 3, 1986]



Sec. 404.906  Testing modifications to the disability determination procedures.

    (a) Applicability and scope. Notwithstanding any other provision in 
this part or part 422 of this chapter, we are establishing the 
procedures set out in this section to test modifications to our 
disability determination process. These modifications will enable us to

[[Page 221]]

test, either individually or in one or more combinations, the effect of: 
having disability claim managers assume primary responsibility for 
processing an application for disability benefits; providing persons who 
have applied for benefits based on disability with the opportunity for 
an interview with a decisionmaker when the decisionmaker finds that the 
evidence in the file is insufficient to make a fully favorable 
determination or requires an initial determination denying the claim; 
having a single decisionmaker make the initial determination with 
assistance from medical consultants, where appropriate; and eliminating 
the reconsideration step in the administrative review process and having 
a claimant who is dissatisfied with the initial determination request a 
hearing before an administrative law judge. The model procedures we test 
will be designed to provide us with information regarding the effect of 
these procedural modifications and enable us to decide whether and to 
what degree the disability determination process would be improved if 
they were implemented on a national level.
    (b) Procedures for cases included in the tests. Prior to commencing 
each test or group of tests in selected site(s), we will publish a 
notice in the Federal Register. The notice will describe which model or 
combinations of models we intend to test, where the specific test 
site(s) will be, and the duration of the test(s). The individuals who 
participate in the test(s) will be randomly assigned to a test group in 
each site where the tests are conducted. Paragraphs (b) (1) through (4) 
of this section lists descriptions of each model.
    (1) In the disability claim manager model, when you file an 
application for benefits based on disability, a disability claim manager 
will assume primary responsibility for the processing of your claim. The 
disability claim manager will be the focal point for your contacts with 
us during the claims intake process and until an initial determination 
on your claim is made. The disability claim manager will explain the 
disability programs to you, including the definition of disability and 
how we determine whether you meet all the requirements for benefits 
based on disability. The disability claim manager will explain what you 
will be asked to do throughout the claims process and how you can obtain 
information or assistance through him or her. The disability claim 
manager will also provide you with information regarding your right to 
representation, and he or she will provide you with appropriate referral 
sources for representation. The disability claim manager may be either a 
State agency employee or a Federal employee. In some instances, the 
disability claim manager may be assisted by other individuals.
    (2) In the single decisionmaker model, the decisionmaker will make 
the disability determination and may also determine whether the other 
conditions for entitlement to benefits based on disability are met. The 
decisionmaker will make the disability determination after any 
appropriate consultation with a medical or psychological consultant. The 
medical or psychological consultant will not be required to sign the 
disability determination forms we use to have the State agency certify 
the determination of disability to us (see Sec. 404.1615). However, 
before an initial determination is made that a claimant is not disabled 
in any case where there is evidence which indicates the existence of a 
mental impairment, the decisionmaker will make every reasonable effort 
to ensure that a qualified psychiatrist or psychologist has completed 
the medical portion of the case review and any applicable residual 
functional capacity assessment pursuant to our existing procedures (see 
Sec. 404.1617). In some instances the decisionmaker may be the 
disability claim manager described in paragraph (b)(1) of this section. 
When the decisionmaker is a State agency employee, a team of individuals 
that includes a Federal employee will determine whether the other 
conditions for entitlement to benefits are met.
    (3) In the predecision interview model, if the decisionmaker(s) 
finds that the evidence in your file is insufficient to make a fully 
favorable determination or requires an initial determination denying 
your claim, a predecision notice will be mailed to you. The notice will 
tell you that, before the decisionmaker(s) makes an

[[Page 222]]

initial determination about whether you are disabled, you may request a 
predecision interview with the decisionmaker(s). The notice will also 
tell you that you may submit additional evidence. You must request a 
predecision interview within 10 days after the date you receive the 
predecision notice. You must also submit any additional evidence within 
10 days after you receive the predecision notice. If you request a 
predecision interview, the decisionmaker(s) will conduct the predecision 
interview in person, by videoconference, or by telephone as the 
decisionmaker(s) determines is appropriate under the circumstances. If 
you make a late request for a predecision interview, or submit 
additional evidence late, but show in writing that you had good cause 
under the standards in Sec. 404.911 for missing the deadline, the 
decisionmaker(s) will extend the deadline. If you do not request the 
predecision interview, or if you do not appear for a scheduled 
predecision interview and do not submit additional evidence, or if you 
do not respond to our attempts to communicate with you, the 
decisionmaker(s) will make an initial determination based upon the 
evidence in your file. If you identify additional evidence during the 
predecision interview, which was previously not available, the 
decisionmaker(s) will advise you to submit the evidence. If you are 
unable to do so, the decisionmaker(s) may assist you in obtaining it. 
The decisionmaker(s) also will advise you of the specific timeframes you 
have for submitting any additional evidence identified during the 
predecision interview. If you have no treating source(s) (see 
Sec. 404.1502), or your treating source(s) is unable or unwilling to 
provide the necessary evidence, or there is a conflict in the evidence 
that cannot be resolved through evidence from your treating source(s), 
the decisionmaker(s) may arrange a consultative examination or resolve 
conflicts according to existing procedures (see Sec. 404.1519a). If you 
attend the predecision interview, or do not attend the predecision 
interview but you submit additional evidence, the decisionmaker(s) will 
make an initial determination based on the evidence in your file, 
including the additional evidence you submit or the evidence obtained as 
a result of the predecision notice or interview, or both.
    (4) In the reconsideration elimination model, we will modify the 
disability determination process by eliminating the reconsideration step 
of the administrative review process. If you receive an initial 
determination on your claim for benefits based on disability, and you 
are dissatisfied with the determination, we will notify you that you may 
request a hearing before an administrative law judge. If you request a 
hearing before an administrative law judge, we will apply our usual 
procedures contained in subpart J of this part.

[60 FR 20026, Apr. 24, 1995]

                             Reconsideration



Sec. 404.907  Reconsideration--general.

    If you are dissatisfied with the initial determination, 
reconsideration is the first step in the administrative review process 
that we provide, except that we provide the opportunity for a hearing 
before an administrative law judge as the first step for those 
situations described in Secs. 404.930 (a)(6) and (a)(7), where you 
appeal an initial determination denying your request for waiver of 
adjustment or recovery of an overpayment (see Sec. 404.506). If you are 
dissatisfied with our reconsidered determination, you may request a 
hearing before an administrative law judge.

[61 FR 56132, Oct. 31, 1996]



Sec. 404.908  Parties to a reconsideration.

    (a) Who may request a reconsideration. If you are dissatisfied with 
the initial determination, you may request that we reconsider it. In 
addition, a person who shows in writing that his or her rights may be 
adversely affected by the initial determination may request a 
reconsideration.
    (b) Who are parties to a reconsideration. After a request for the 
reconsideration, you and any person who shows in writing that his or her 
rights are adversely affected by the initial determination will be 
parties to the reconsideration.

[[Page 223]]



Sec. 404.909  How to request reconsideration.

    (a) We shall reconsider an initial determination if you or any other 
party to the reconsideration files a written request--
    (1) Within 60 days after the date you receive notice of the initial 
determination (or within the extended time period if we extend the time 
as provided in paragraph (b) of this section);
    (2) At one of our offices, the Veterans Administration Regional 
Office in the Philippines, or an office of the Railroad Retirement Board 
if you have 10 or more years of service in the railroad industry.
    (b) Extension of time to request a reconsideration. If you want a 
reconsideration of the initial determination but do not request one in 
time, you may ask us for more time to request a reconsideration. Your 
request for an extension of time must be in writing and must give the 
reasons why the request for reconsideration was not filed within the 
stated time period. If you show us that you had good cause for missing 
the deadline, we will extend the time period. To determine whether good 
cause exists, we use the standards explained in Sec. 404.911.



Sec. 404.911  Good cause for missing the deadline to request review.

    (a) In determining whether you have shown that you had good cause 
for missing a deadline to request review we consider--
    (1) What circumstances kept you from making the request on time;
    (2) Whether our action misled you;
    (3) Whether you did not understand the requirements of the Act 
resulting from amendments to the Act, other legislation, or court 
decisions; and
    (4) Whether you had any physical, mental, educational, or linguistic 
limitations (including any lack of facility with the English language) 
which prevented you from filing a timely request or from understanding 
or knowing about the need to file a timely request for review.
    (b) Examples of circumstances where good cause may exist include, 
but are not limited to, the following situations:
    (1) You were seriously ill and were prevented from contacting us in 
person, in writing, or through a friend, relative, or other person.
    (2) There was a death or serious illness in your immediate family.
    (3) Important records were destroyed or damaged by fire or other 
accidental cause.
    (4) You were trying very hard to find necessary information to 
support your claim but did not find the information within the stated 
time periods.
    (5) You asked us for additional information explaining our action 
within the time limit, and within 60 days of receiving the explanation 
you requested reconsideration or a hearing, or within 30 days of 
receiving the explanation you requested Appeal Council review or filed a 
civil suit.
    (6) We gave you incorrect or incomplete information about when and 
how to request administrative review or to file a civil suit.
    (7) You did not receive notice of the determination or decision.
    (8) You sent the request to another Government agency in good faith 
within the time limit and the request did not reach us until after the 
time period had expired.
    (9) Unusual or unavoidable circumstances exist, including the 
circumstances described in paragraph (a)(4) of this section, which show 
that you could not have known of the need to file timely, or which 
prevented you from filing timely.

[45 FR 52081, Aug. 5, 1980, as amended at 59 FR 1634, Jan. 12, 1994]



Sec. 404.913  Reconsideration procedures.

    (a) Case review. With the exception of the type of case described in 
paragraph (b) of this section, the reconsideration process consists of a 
case review. Under a case review procedure, we will give you and the 
other parties to the reconsideration an opportunity to present 
additional evidence to us. The official who reviews your case will then 
make a reconsidered determination based on all of this evidence.
    (b) Disability hearing. If you have been receiving benefits based on 
disability and you request reconsideration of an initial or revised 
determination that, based on medical factors, you are not

[[Page 224]]

now disabled, we will give you and the other parties to the 
reconsideration an opportunity for a disability hearing. (See 
Secs. 404.914 through 404.918.)

[51 FR 300, Jan. 3, 1986]



Sec. 404.914  Disability hearing--general.

    (a) Availability. We will provide you with an opportunity for a 
disability hearing if:
    (1) You have been receiving benefits based on a medical impairment 
that renders you disabled;
    (2) We have made an initial or revised determination based on 
medical factors that you are not now disabled because your impairment:
    (i) Has ceased;
    (ii) Did not exist; or
    (iii) Is no longer disabling; and
    (3) You make a timely request for reconsideration of the initial or 
revised determination.
    (b) Scope. The disability hearing will address only the initial or 
revised determination, based on medical factors, that you are not now 
disabled. Any other issues which arise in connection with your request 
for reconsideration will be reviewed in accordance with the 
reconsideration procedures described in Sec. 404.913(a).
    (c) Time and place--(1) General. Either the State agency or the 
Director of the Office of Disability Hearings or his or her delegate, as 
appropriate, will set the time and place of your disability hearing. We 
will send you a notice of the time and place of your disability hearing 
at least 20 days before the date of the hearing. You may be expected to 
travel to your disability hearing. (See Secs. 404.999a-404.999d 
regarding reimbursement for travel expenses.)
    (2) Change of time or place. If you are unable to travel or have 
some other reason why you cannot attend your disability hearing at the 
scheduled time or place, you should request at the earliest possible 
date that the time or place of your hearing be changed. We will change 
the time or place if there is good cause for doing so under the 
standards in Sec. 404.936 (c) and (d).
    (d) Combined issues. If a disability hearing is available to you 
under paragraph (a) of this section, and you file a new application for 
benefits while your request for reconsideration is still pending, we may 
combine the issues on both claims for the purpose of the disability 
hearing and issue a combined initial/reconsidered determination which is 
binding with respect to the common issues on both claims.
    (e) Definition. For purposes of the provisions regarding disability 
hearings (Secs. 404.914 through 404.918) we, us or our means the Social 
Security Administration or the State agency.

[51 FR 300, Jan. 3, 1986, as amended at 51 FR 8808, Mar. 14, 1986]



Sec. 404.915  Disability hearing--disability hearing officers.

    (a) General. Your disability hearing will be conducted by a 
disability hearing officer who was not involved in making the 
determination you are appealing. The disability hearing officer will be 
an experienced disability examiner, regardless of whether he or she is 
appointed by a State agency or by the Director of the Office of 
Disability Hearings or his or her delegate, as described in paragraphs 
(b) and (c) below.
    (b) State agency hearing officers--(1) Appointment of State agency 
hearing officers. If a State agency made the initial or revised 
determination that you are appealing, the disability hearing officer who 
conducts your disability hearing may be appointed by a State agency. If 
the disability hearing officer is appointed by a State agency, that 
individual will be employed by an adjudicatory unit of the State agency 
other than the adjudicatory unit which made the determination you are 
appealing.
    (2) State agency defined. For purposes of this subpart, State agency 
means the adjudicatory component in the State which issues disability 
determinations.
    (c) Federal hearing officers. The disability hearing officer who 
conducts your disability hearing will be appointed by the Director of 
the Office of Disability Hearings or his or her delegate if:
    (1) A component of our office other than a State agency made the 
determination you are appealing; or
    (2) The State agency does not appoint a disability hearing officer 
to conduct your disability hearing under paragraph (b) of this section.

[51 FR 301, Jan. 3, 1986]

[[Page 225]]



Sec. 404.916  Disability hearing--procedures.

    (a) General. The disability hearing will enable you to introduce 
evidence and present your views to a disability hearing officer if you 
are dissatisfied with an initial or revised initial determination, based 
on medical factors, that you are not now disabled as described in 
Sec. 404.914(a)(2).
    (b) Your procedural rights. We will advise you that you have the 
following procedural rights in connection with the disability hearing 
process:
    (1) You may request that we assist you in obtaining pertinent 
evidence for your disability hearing and, if necessary, that we issue a 
subpoena to compel the production of certain evidence or testimony. We 
will follow subpoena procedures similar to those described in 
Sec. 404.950(d) for the administrative law judge hearing process;
    (2) You may have a representative at the hearing appointed under 
subpart R of this part, or you may represent yourself;
    (3) You or your representative may review the evidence in your case 
file, either on the date of your hearing or at an earlier time at your 
request, and present additional evidence;
    (4) You may present witnesses and question any witnesses at the 
hearing;
    (5) You may waive your right to appear at the hearing. If you do not 
appear at the hearing, the disability hearing officer will prepare and 
issue a written reconsidered determination based on the information in 
your case file.
    (c) Case preparation. After you request reconsideration, your case 
file will be reviewed and prepared for the hearing. This review will be 
conducted in the component of our office (including a State agency) that 
made the initial or revised determination, by personnel who were not 
involved in making the initial or revised determination. Any new 
evidence you submit in connection with your request for reconsideration 
will be included in this review. If necessary, further development of 
the evidence, including arrrangements for medical examinations, will be 
undertaken by this component. After the case file is prepared for the 
hearing, it will be forwarded by this component to the disability 
hearing officer for a hearing. If necessary, the case file may be sent 
back to this component at any time prior to the issuance of the 
reconsidered determination for additional development. Under paragraph 
(d) of this section, this component has the authority to issue a 
favorable reconsidered determination at any time in its development 
process.
    (d) Favorable reconsideration determination without a hearing. If 
all the evidence in your case file supports a finding that you are now 
disabled, either the component that prepares your case for hearing under 
paragraph (c) or the disability hearing officer will issue a written 
favorable reconsideration determination, even if a disability hearing 
has not yet been held.
    (e) Opportunity to submit additional evidence after the hearing. At 
your request, the disability hearing officer may allow up to 15 days 
after your disability hearing for receipt of evidence which is not 
available at the hearing, if:
    (1) The disability hearing officer determines that the evidence has 
a direct bearing on the outcome of the hearing; and
    (2) The evidence could not have been obtained before the hearing.
    (f) Opportunity to review and comment on evidence obtained or 
developed by us after the hearing. If, for any reason, additional 
evidence is obtained or developed by us after your disability hearing, 
and all evidence taken together can be used to support a reconsidered 
determination that is unfavorable to you with regard to the medical 
factors of eligibility, we will notify you, in writing, and give you an 
opportunity to review and comment on the additional evidence. You will 
be given 10 days from the date you receive our notice to submit your 
comments (in writing or, in appropriate cases, by telephone), unless 
there is good cause for granting you additional time, as illustrated by 
the examples in Sec. 404.911(b). Your comments will be considered before 
a reconsidered determination is issued. If you believe that it is 
necessary to have further opportunity for a hearing with respect to the 
additional evidence, a supplementary hearing may be scheduled at your 
request. Otherwise, we

[[Page 226]]

will ask for your written comments on the additional evidence, or, in 
appropriate cases, for your telephone comments.

[51 FR 301, Jan. 3, 1986]



Sec. 404.917  Disability hearing--disability hearing officer's reconsidered determination.

    (a) General. The disability hearing officer who conducts your 
disability hearing will prepare and will also issue a written 
reconsidered determination, unless:
    (1) The disability hearing officer sends the case back for 
additional development by the component that prepared the case for the 
hearing, and that component issues a favorable determination, as 
permitted by Sec. 404.916(c);
    (2) It is determined that you are engaging in substantial gainful 
activity and that you are therefore not disabled; or
    (3) The reconsidered determination prepared by the disability 
hearing officer is reviewed under Sec. 404.918.
    (b) Content. The disability hearing officer's reconsidered 
determination will give the findings of fact and the reasons for the 
reconsidered determination. The reconsidered determination must be based 
on evidence offered at the disability hearing or otherwise included in 
the case file.
    (c) Notice. We will mail you and the other parties a notice of 
reconsidered determination in accordance with Sec. 404.922.
    (d) Effect. The disability hearing officer's reconsidered 
determination, or, if it is changed under Sec. 404.918, the reconsidered 
determination that is issued by the Director of the Office of Disability 
Hearings or his or her delegate, is binding in accordance with 
Sec. 404.921, subject to the exceptions specified in that section.

[51 FR 302, Jan. 3, 1986]



Sec. 404.918  Disability hearing--review of the disability hearing officer's reconsidered determination before it is issued.

    (a) General. The Director of the Office of Disability Hearings or 
his or her delegate may select a sample of disability hearing officers' 
reconsidered determinations, before they are issued, and review any such 
case to determine its correctness on any grounds he or she deems 
appropriate. The Director or his or her delegate shall review any case 
within the sample if:
    (1) There appears to be an abuse of discretion by the hearing 
officer;
    (2) There is an error of law; or
    (3) The action, findings or conclusions of the disability hearing 
officer are not supported by substantial evidence.

If the review indicates that the reconsidered determination prepared by 
the disability hearing officer is correct, it will be dated and issued 
immediately upon completion of the review. If the reconsidered 
determination prepared by the disability hearing officer is found by the 
Director or his or her delegate to be deficient, it will be changed as 
described in paragraph (b) of this section.
    (b) Methods of correcting deficiencies in the disability hearing 
officer's reconsidered determination. If the reconsidered determination 
prepared by the disability hearing officer is found by the Director or 
his or her delegate to be deficient, the Director of the Office of 
Disability Hearings or his or her delegate will take appropriate action 
to assure that the deficiency is corrected before a reconsidered 
determination is issued. The action taken by the Director or his or her 
delegate will take one of two forms:
    (1) The Director or his or her delegate may return the case file 
either to the component responsible for preparing the case for hearing 
or to the disability hearing officer, for appropriate further action; or
    (2) The Director or his or her delegate may issue a written 
reconsidered determination which corrects the deficiency.
    (c) Further action on your case if it is sent back by the Director 
or his or her delegate either to the component that prepared your case 
for hearing or to the disability hearing officer. If the Director of the 
Office of Disability Hearings or his or her delegate sends your case 
back either to the component responsible for preparing the case for 
hearing or to the disability hearing officer for appropriate further 
action, as provided in

[[Page 227]]

paragraph (b)(1) of this section, any additional proceedings in your 
case will be governed by the disability hearing procedures described in 
Sec. 404.916(f) or if your case is returned to the disability hearing 
officer and an unfavorable determination is indicated, a supplementary 
hearing may be scheduled for you before a reconsidered determination is 
reached in your case.
    (d) Opportunity to comment before the Director or his or her 
delegate issues a reconsidered determination that is unfavorable to you. 
If the Director of the Office of Disability Hearings or his or her 
delegate proposes to issue a reconsidered determination as described in 
paragraph (b)(2) of this section, and that reconsidered determination is 
unfavorable to you, he or she will send you a copy of the proposed 
reconsidered determination with an explanation of the reasons for it, 
and will give you an opportunity to submit written comments before it is 
issued. At your request, you will also be given an opportunity to 
inspect the pertinent materials in your case file, including the 
reconsidered determination prepared by the disability hearing officer, 
before submitting your comments. You will be given 10 days from the date 
you receive the Director's notice of proposed action to submit your 
written comments, unless additional time is necessary to provide access 
to the pertinent file materials or there is good cause for providing 
more time, as illustrated by the examples in Sec. 404.911(b). The 
Director or his or her delegate will consider your comments before 
taking any further action on your case.

[51 FR 302, Jan. 3, 1986]



Sec. 404.919  Notice of another person's request for reconsideration.

    If any other person files a request for reconsideration of the 
initial determination in your case, we shall notify you at your last 
known address before we reconsider the initial determination. We shall 
also give you an opportunity to present any evidence you think helpful 
to the reconsidered determination.

[45 FR 52081, Aug. 5, 1980. Redesignated at 51 FR 302, Jan. 3, 1986]



Sec. 404.920  Reconsidered determination.

    After you or another person requests a reconsideration, we shall 
review the evidence considered in making the initial determination and 
any other evidence we receive. We shall make our determination based on 
this evidence.

[45 FR 52081, Aug. 5, 1980. Redesignated at 51 FR 302, Jan. 3, 1986]



Sec. 404.921  Effect of a reconsidered determination.

    The reconsidered determination is binding unless--
    (a) You or any other party to the reconsideration requests a hearing 
before an administrative law judge within the stated time period and a 
decision is made;
    (b) The expedited appeals process is used; or
    (c) The reconsidered determination is revised.

[51 FR 302, Jan. 3, 1986]



Sec. 404.922  Notice of a reconsidered determination.

    We shall mail a written notice of the reconsidered determination to 
the parties at their last known address. We shall state the specific 
reasons for the determination and tell you and any other parties of the 
right to a hearing. If it is appropriate, we will also tell you and any 
other parties how to use the expedited appeals process.

[45 FR 52081, Aug. 5, 1980. Redesignated at 51 FR 302, Jan. 3, 1986]

                        Expedited Appeals Process



Sec. 404.923  Expedited appeals process--general.

    By using the expedited appeals process you may go directly to a 
Federal district court without first completing the administrative 
review process that is generally required before the court will hear 
your case.



Sec. 404.924  When the expedited appeals process may be used.

    You may use the expedited appeals process if all of the following 
requirements are met:
    (a) We have made an initial and a reconsidered determination; an 
administrative law judge has made a hearing

[[Page 228]]

decision; or Appeals Council review has been requested, but a final 
decision has not been issued.
    (b) You are a party to the reconsidered determination or the hearing 
decision.
    (c) You have submitted a written request for the expedited appeals 
process.
    (d) You have claimed, and we agree, that the only factor preventing 
a favorable determination or decision is a provision in the law that you 
believe is unconstitutional.
    (e) If you are not the only party, all parties to the determination 
or decision agree to request the expedited appeals process.



Sec. 404.925  How to request expedited appeals process.

    (a) Time of filing request. You may request the expedited appeals 
process--
    (1) Within 60 days after the date you receive notice of the 
reconsidered determination (or within the extended time period if we 
extend the time as provided in paragraph (c) of this section);
    (2) At any time after you have filed a timely request for a hearing 
but before you receive notice of the administrative law judge's 
decision;
    (3) Within 60 days after the date you receive a notice of the 
administrative law judge's decision or dismissal (or within the extended 
time period if we extend the time as provided in paragraph (c) of this 
section); or
    (4) At any time after you have filed a timely request for Appeals 
Council review, but before you receive notice of the Appeals Council's 
action.
    (b) Place of filing request. You may file a written request for the 
expedited appeals process at one of our offices, the Veterans 
Administration Regional Office in the Philippines, or an office of the 
Railroad Retirement Board if you have 10 or more years of service in the 
railroad industry.
    (c) Extension of time to request expedited appeals process. If you 
want to use the expedited appeals process but do not request it within 
the stated time period, you may ask for more time to submit your 
request. Your request for an extension of time must be in writing and 
must give the reasons why the request for the expedited appeals process 
was not filed within the stated time period. If you show that you had 
good cause for missing the deadline, the time period will be extended. 
To determine whether good cause exists, we use the standards explained 
in Sec. 404.911.



Sec. 404.926  Agreement in expedited appeals process.

    If you meet all the requirements necessary for the use of the 
expedited appeals process, our authorized representative shall prepare 
an agreement. The agreement must be signed by you, by every other party 
to the determination or decision and by our authorized representative. 
The agreement must provide that--
    (a) The facts in your claim are not in dispute;
    (b) The sole issue in dispute is whether a provision of the Act that 
applies to your case is unconstitutional;
    (c) Except for your belief that a provision of the Act is 
unconstitutional, you agree with our interpretation of the law;
    (d) If the provision of the Act that you believe is unconstitutional 
were not applied to your case, your claim would be allowed; and
    (e) Our determination or the decision is final for the purpose of 
seeking judicial review.



Sec. 404.927  Effect of expedited appeals process agreement.

    After an expedited appeals process agreement is signed, you will not 
need to complete the remaining steps of the administrative review 
process. Instead, you may file an action in a Federal district court 
within 60 days after the date you receive notice (a signed copy of the 
agreement will be mailed to you and will constitute notice) that the 
agreement has been signed by our authorized representative.

[45 FR 52081, Aug. 5, 1980, as amended at 49 FR 46369, Nov. 26, 1984]



Sec. 404.928  Expedited appeals process request that does not result in agreement.

    If you do not meet all of the requirements necessary to use the 
expedited appeals process, we shall tell you that

[[Page 229]]

your request to use this process is denied and that your request will be 
considered as a request for a hearing or Appeals Council review, 
whichever is appropriate.

               Hearing Before an Administrative Law Judge



Sec. 404.929  Hearing before an administrative law judge--general.

    If you are dissatisfied with one of the determinations or decisions 
listed in Sec. 404.930 you may request a hearing. The Associate 
Commissioner for Hearings and Appeals, or his or her delegate, shall 
appoint an administrative law judge to conduct the hearing. If 
circumstances warrant, the Associate Commissioner, or his or her 
delegate, may assign your case to another administrative law judge. At 
the hearing you may appear in person, submit new evidence, examine the 
evidence used in making the determination or decision under review, and 
present and question witnesses. The administrative law judge who 
conducts the hearing may ask you questions. He or she shall issue a 
decision based on the hearing record. If you waive your right to appear 
at the hearing, the administrative law judge will make a decision based 
on the evidence that is in the file and any new evidence that may have 
been submitted for consideration.

[45 FR 52081, Aug. 5, 1980, as amended at 51 FR 302, Jan. 3, 1986]



Sec. 404.930  Availability of a hearing before an administrative law judge.

    (a) You or another party may request a hearing before an 
administrative law judge if we have made--
    (1) A reconsidered determination;
    (2) A revised determination of an initial determination, unless the 
revised determination concerns the issue of whether, based on medical 
factors, you are disabled;
    (3) A reconsideration of a revised initial determination concerning 
the issue of whether, based on medical factors, you are disabled;
    (4) A revised reconsidered determination;
    (5) A revised decision based on evidence not included in the record 
on which the prior decision was based;
    (6) An initial determination denying waiver of adjustment or 
recovery of an overpayment based on a personal conference (see 
Sec. 404.506); or
    (7) An initial determination denying waiver of adjustment or 
recovery of an overpayment based on a review of the written evidence of 
record (see Sec. 404.506), and the determination was made concurrent 
with, or subsequent to, our reconsideration determination regarding the 
underlying overpayment but before an administrative law judge holds a 
hearing.
    (b) We will hold a hearing only if you or another party to the 
hearing file a written request for a hearing.

[45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986; 61 FR 
56132, Oct. 31, 1996]



Sec. 404.932  Parties to a hearing before an administrative law judge.

    (a) Who may request a hearing. You may request a hearing if a 
hearing is available under Sec. 404.930. In addition, a person who shows 
in writing that his or her rights may be adversely affected by the 
decision may request a hearing.
    (b) Who are parties to a hearing. After a request for a hearing is 
made, you, the other parties to the initial, reconsidered, or revised 
determination, and any other person who shows in writing that his or her 
rights may be adversely affected by the hearing, are parties to the 
hearing. In addition, any other person may be made a party to the 
hearing if his or her rights may be adversely affected by the decision, 
and the administrative law judge notifies the person to appear at the 
hearing or to present evidence supporting his or her interest.

[45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986]



Sec. 404.933  How to request a hearing before an administrative law judge.

    (a) Written request. You may request a hearing by filing a written 
request. You should include in your request--
    (1) The name and social security number of the wage earner;
    (2) The reasons you disagree with the previous determination or 
decision;
    (3) A statement of additional evidence to be submitted and the date 
you will submit it; and

[[Page 230]]

    (4) The name and address of any designated representative.
    (b) When and where to file. The request must be filed--
    (1) Within 60 days after the date you receive notice of the previous 
determination or decision (or within the extended time period if we 
extend the time as provided in paragraph (c) of this section);
    (2) At one of our offices, the Veterans Administration Regional 
Office in the Philippines, or an office of the Railroad Retirement Board 
for persons having 10 or more years of service in the railroad industry.
    (c) Extension of time to request a hearing. If you have a right to a 
hearing but do not request one in time, you may ask for more time to 
make your request. The request for an extension of time must be in 
writing and it must give the reasons why the request for a hearing was 
not filed within the stated time period. You may file your request for 
an extension of time at one of our offices. If you show that you had 
good cause for missing the deadline, the time period will be extended. 
To determine whether good cause exists, we use the standards explained 
in Sec. 404.911.

[45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986]



Sec. 404.935  Submitting evidence prior to a hearing before an administrative law judge.

    If possible, the evidence or a summary of evidence you wish to have 
considered at the hearing should be submitted to the administrative law 
judge with the request for hearing or within 10 days after filing the 
request. Each party shall make every effort to be sure that all material 
evidence is received by the administrative law judge or is available at 
the time and place set for the hearing.

[45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986]



Sec. 404.936  Time and place for a hearing before an administrative law judge.

    (a) The administrative law judge sets the time and place for the 
hearing. He or she may change the time and place, if it is necessary. 
After sending the parties reasonable notice of the proposed action, the 
administrative law judge may adjourn or postpone the hearing or reopen 
it to receive additional evidence any time before he or she notifies the 
parties of a hearing decision. Hearings are held in the 50 States, the 
District of Columbia, American Samoa, Guam, the Northern Mariana 
Islands, the Commonwealth of Puerto Rico and the Virgin Islands.
    (b) If you object to the time or place of the hearing, you must 
notify the administrative law judge at the earliest possible opportunity 
before the time set for the hearing. You must state the reason for your 
objection and state the time and place you want the hearing to be held. 
If at all possible, the request should be in writing. The administrative 
law judge will change the time or place of the hearing if you have good 
cause, as determined under paragraphs (c) and (d) of this section. 
Sec. 404.938 provides procedures we will follow when you do not respond 
to a notice of hearing.
    (c) The administrative law judge will find good cause for changing 
the time or place of your scheduled hearing, and will reschedule your 
hearing if your reason is one of the following circumstances and is 
supported by the evidence:
    (1) You or your representative are unable to attend or to travel to 
the scheduled hearing because of a serious physical or mental condition, 
incapacitating injury, or death in the family; or
    (2) Severe weather conditions make it impossible to travel to the 
hearing.
    (d) In determining whether good cause exists in circumstances other 
than those set out in paragraph (c) of this section, the administrative 
law judge will consider your reason for requesting the change, the facts 
supporting it, and the impact of the proposed change on the efficient 
administration of the hearing process. Factors affecting the impact of 
the change include, but are not limited to, the effect on the processing 
of other scheduled hearings, delays which might occur in rescheduling 
your hearing, and whether any prior changes were granted to you. 
Examples of such other circumstances, which you might give for 
requesting a

[[Page 231]]

change in the time or place of the hearing, include, but are not limited 
to, the following:
    (1) You have attempted to obtain a representative but need 
additional time;
    (2) Your representative was appointed within 30 days of the 
scheduled hearing and needs additional time to prepare for the hearing;
    (3) Your representative has a prior commitment to be in court or at 
another administrative hearing on the date scheduled for the hearing;
    (4) A witness who will testify to facts material to your case would 
be unavailable to attend the scheduled hearing and the evidence cannot 
be otherwise obtained;
    (5) Transportation is not readily available for you to travel to the 
hearing;
    (6) You live closer to another hearing site; or
    (7) You are unrepresented, and you are unable to respond to the 
notice of hearing because of any physical, mental, educational, or 
linguistic limitations (including any lack of facility with the English 
language) which you may have.

[45 FR 52081, Aug. 5, 1980, as amended at 50 FR 21438, May 24, 1985; 51 
FR 303, Jan. 3, 1986; 59 FR 1634, Jan. 12, 1994]



Sec. 404.938  Notice of a hearing before an administrative law judge.

    After the administrative law judge sets the time and place of the 
hearing, notice of the hearing will be mailed to the parties at their 
last known addresses, or given by personal service, unless you have 
indicated in writing that you do not wish to receive this notice. The 
notice will be mailed or served at least 20 days before the hearing. The 
notice of hearing will contain a statement of the specific issues to be 
decided and tell you that you may designate a person to represent you 
during the proceedings. The notice will also contain an explanation of 
the procedures for requesting a change in the time or place of your 
hearing, a reminder that if you fail to appear at your scheduled hearing 
without good cause the ALJ may dismiss your hearing request, and other 
information about the scheduling and conduct of your hearing. If you or 
your representative do not acknowledge receipt of the notice of hearing, 
we will attempt to contact you for an explanation. If you tell us that 
you did not receive the notice of hearing, an amended notice will be 
sent to you by certified mail. See Sec. 404.936 for the procedures we 
will follow in deciding whether the time or place of your scheduled 
hearing will be changed if you do not respond to the notice of hearing.

[50 FR 21438, May 24, 1985, as amended at 51 FR 303, Jan. 3, 1986]



Sec. 404.939  Objections to the issues.

    If you object to the issues to be decided upon at the hearing, you 
must notify the administrative law judge in writing at the earliest 
possible opportunity before the time set for the hearing. You must state 
the reasons for your objections. The administrative law judge shall make 
a decision on your objections either in writing or at the hearing.



Sec. 404.940  Disqualification of the administrative law judge.

    An administrative law judge shall not conduct a hearing if he or she 
is prejudiced or partial with respect to any party or has any interest 
in the matter pending for decision. If you object to the administrative 
law judge who will conduct the hearing, you must notify the 
administrative law judge at your earliest opportunity. The 
administrative law judge shall consider your objections and shall decide 
whether to proceed with the hearing or withdraw. If he or she withdraws, 
the Associate Commissioner for Hearings and Appeals, or his or her 
delegate, will appoint another administrative law judge to conduct the 
hearing. If the administrative law judge does not withdraw, you may, 
after the hearing, present your objections to the Appeals Council as 
reasons why the hearing decision should be revised or a new hearing held 
before another administrative law judge.



Sec. 404.941  Prehearing case review.

    (a) General. After a hearing is requested but before it is held, we 
may, for the purposes of a prehearing case

[[Page 232]]

review, forward the case to the component of our office (including a 
State agency) that issued the determination being reviewed. That 
component will decide whether the determination may be revised. A 
revised determination may be wholly or partially favorable to you. A 
prehearing case review will not delay the scheduling of a hearing unless 
you agree to continue the review and delay the hearing. If the 
prehearing case review is not completed before the date of the hearing, 
the case will be sent to the administrative law judge unless a favorable 
revised determination is in process or you and the other parties to the 
hearing agree in writing to delay the hearing until the review is 
completed.
    (b) When a prehearing case review may be conducted. We may conduct a 
prehearing case review if--
    (1) Additional evidence is submitted;
    (2) There is an indication that additional evidence is available;
    (3) There is a change in the law or regulation; or
    (4) There is an error in the file or some other indication that the 
prior determination may be revised.
    (c) Notice of a prehearing revised determination. If we revise the 
determination in a prehearing case review, we shall mail written notice 
of the revised determination to all parties at their last known address. 
We shall state the basis for the revised determination and advise all 
parties of their right to request a hearing on the revised determination 
within 60 days after the date or receiving this notice.
    (d) Revised determination wholly favorable. If the revised 
determination is wholly favorable to you, we shall tell you in the 
notice that the administrative law judge will dismiss the hearing 
request unless a party requests that the hearing proceed. A request to 
continue must be made in writing within 30 days after the date the 
notice of the revised determination is mailed.
    (e) Revised determination partially favorable. If the revised 
determination is partially favorable to you, we shall tell you in the 
notice what was not favorable. We shall also tell you that the hearing 
you requested will be held unless you, the parties to the revised 
determination and the parties to the hearing tell us that all parties 
agree to dismiss the hearing request.



Sec. 404.942  Prehearing proceedings and decisions by attorney advisors.

    (a) General. After a hearing is requested but before it is held, an 
attorney advisor in our Office of Hearings and Appeals may conduct 
prehearing proceedings as set out in paragraph (c) of this section. If 
upon the completion of these proceedings, a decision that is wholly 
favorable to you and all other parties may be made, an attorney advisor, 
instead of an administrative law judge, may issue such a decision. The 
conduct of the prehearing proceedings by the attorney advisor will not 
delay the scheduling of a hearing. If the prehearing proceedings are not 
completed before the date of the hearing, the case will be sent to the 
administrative law judge unless a wholly favorable decision is in 
process or you and all other parties to the hearing agree in writing to 
delay the hearing until the proceedings are completed.
    (b) When prehearing proceedings may be conducted by an attorney 
advisor. An attorney advisor may conduct prehearing proceedings if you 
have filed a claim for benefits based on disability and--
    (1) New and material evidence is submitted;
    (2) There is an indication that additional evidence is available;
    (3) There is a change in the law or regulations; or
    (4) There is an error in the file or some other indication that a 
wholly favorable decision may be issued.
    (c) Nature of the prehearing proceedings that may be conducted by an 
attorney advisor. As part of the prehearing proceedings, the attorney 
advisor, in addition to reviewing the existing record, may--
    (1) Request additional evidence that may be relevant to the claim, 
including medical evidence; and
    (2) If necessary to clarify the record for the purpose of 
determining if a wholly favorable decision is warranted, schedule a 
conference with the parties.
    (d) Notice of a decision by an attorney advisor. If the attorney 
advisor issues a wholly favorable decision under this section, we shall 
mail a written notice

[[Page 233]]

of the decision to all parties at their last known address. We shall 
state the basis for the decision and advise all parties that an 
administrative law judge will dismiss the hearing request unless a party 
requests that the hearing proceed. A request to proceed with the hearing 
must be made in writing within 30 days after the date the notice of the 
decision of the attorney advisor is mailed.
    (e) Effect of actions under this section. If under this section, an 
administrative law judge dismisses a request for a hearing, the 
dismissal is binding in accordance with Sec. 404.959 unless it is 
vacated by an administrative law judge or the Appeals Council pursuant 
to Sec. 404.960. A decision made by an attorney advisor under this 
section is binding unless--
    (1) A party files a request to proceed with the hearing pursuant to 
paragraph (d) of this section and an administrative law judge makes a 
decision;
    (2) The Appeals Council reviews the decision on its own motion 
pursuant to Sec. 404.969 as explained in paragraph (f)(3) of this 
section; or
    (3) The decision of the attorney advisor is revised under the 
procedures explained in Sec. 404.987.
    (f) Ancillary provisions. For the purposes of the procedures 
authorized by this section, the regulations of part 404 shall apply to--
    (1) Authorize an attorney advisor to exercise the functions 
performed by an administrative law judge under Secs. 404.1520a and 
404.1546;
    (2) Define the term ``decision'' to include a decision made by an 
attorney advisor, as well as the decisions identified in Sec. 404.901; 
and
    (3) Make the decision of an attorney advisor subject to review by 
the Appeals Council under Sec. 404.969 if an administrative law judge 
dismisses the request for a hearing following issuance of the decision, 
and the Appeals Council decides to review the decision of the attorney 
advisor anytime within 60 days after the date of the dismissal.
    (g) Sunset provision. The provisions of this section will no longer 
be effective on June 30, 1997 unless they are extended by the 
Commissioner of Social Security by publication of a final rule in the 
Federal Register.

[60 FR 34131, June 30, 1995]



Sec. 404.943  Responsibilities of the adjudication officer.

    (a)(1) General. Under the procedures set out in this section we will 
test modifications to the procedures we follow when you file a request 
for a hearing before an administrative law judge in connection with a 
claim for benefits based on disability where the question of whether you 
are under a disability as defined in Sec. 404.1505 is at issue. These 
modifications will enable us to test the effect of having an 
adjudication officer be your primary point of contact after you file a 
hearing request and before you have a hearing with an administrative law 
judge. The tests may be conducted alone, or in combination with the 
tests of the modifications to the disability determination procedures 
which we conduct under Sec. 404.906. The adjudication officer, working 
with you and your representative, if any, will identify issues in 
dispute, develop evidence, conduct informal conferences, and conduct any 
other prehearing proceeding as may be necessary. The adjudication 
officer has the authority to make a decision wholly favorable to you if 
the evidence so warrants. If the adjudication officer does not make a 
decision on your claim, your hearing request will be assigned to an 
administrative law judge for further proceedings.
    (2) Procedures for cases included in the tests. Prior to commencing 
tests of the adjudication officer position in selected site(s), we will 
publish a notice in the Federal Register. The notice will describe where 
the specific test site(s) will be and the duration of the test(s). We 
will also state whether the tests of the adjudication officer position 
in each site will be conducted alone, or in combination with the tests 
of the modifications to the disability determination procedures which we 
conduct under Sec. 404.906. The individuals who participate in the 
test(s) will be assigned randomly to a test group in each site where the 
tests are conducted.
    (b)(1) Prehearing procedures conducted by an Adjudication Officer. 
When you

[[Page 234]]

file a request for a hearing before an administrative law judge in 
connection with a claim for benefits based on disability where the 
question of whether you are under a disability as defined in 
Sec. 404.1505 is at issue, the adjudication officer will conduct an 
interview with you. The interview may take place in person, by 
telephone, or by videoconference, as the adjudication officer determines 
is appropriate under the circumstances of your case. If you file a 
request for an extension of time to request a hearing in accordance with 
Sec. 404.933(c), the adjudication officer may develop information on, 
and may decide where the adjudication officer issues a wholly favorable 
decision to you that you had good cause for missing the deadline for 
requesting a hearing. To determine whether you had good cause for 
missing the deadline, the adjudication officer will use the standards 
contained in Sec. 404.911.
    (2) Representation. The adjudication officer will provide you with 
information regarding the hearing process, including your right to 
representation. As may be appropriate, the adjudication officer will 
provide you with referral sources for representation, and give you 
copies of necessary documents to facilitate the appointment of a 
representative. If you have a representative, the adjudication officer 
will conduct an informal conference with the representative, in person 
or by telephone, to identify the issues in dispute and prepare proposed 
written agreements for the approval of the administrative law judge 
regarding those issues which are not in dispute and those issues 
proposed for the hearing. If you decide to proceed without 
representation, the adjudication officer may hold an informal conference 
with you. If you obtain representation after the adjudication officer 
has concluded that your case is ready for a hearing, the administrative 
law judge will return your case to the adjudication officer who will 
conduct an informal conference with you and your representative.
    (3) Evidence. You, or your representative, may submit, or may be 
asked to obtain and submit, additional evidence to the adjudication 
officer. As the adjudication officer determines is appropriate under the 
circumstances of your case, the adjudication officer may refer the claim 
for further medical or vocational evidence.
    (4) Referral for a hearing. The adjudication officer will refer the 
claim to the administrative law judge for further proceedings when the 
development of evidence is complete, and you or your representative 
agree that a hearing is ready to be held. If you or your representative 
are unable to agree with the adjudication officer that the development 
of evidence is complete, the adjudication officer will note your 
disagreement and refer the claim to the administrative law judge for 
further proceedings. At this point, the administrative law judge 
conducts all further hearing proceedings, including scheduling and 
holding a hearing (Sec. 404.936), considering any additional evidence or 
arguments submitted (Secs. 404.935, 404.944, 404.949, 404.950), and 
issuing a decision or dismissal of your request for a hearing, as may be 
appropriate (Secs. 404.948, 404.953, 404.957). In addition, if the 
administrative law judge determines on or before the date of your 
hearing that the development of evidence is not complete, the 
administrative law judge may return the claim to the adjudication 
officer to complete the development of the evidence and for such other 
action as necessary.
    (c)(1) Wholly favorable decisions issued by an adjudication officer. 
If, after a hearing is requested but before it is held, the adjudication 
officer decides that the evidence in your case warrants a decision which 
is wholly favorable to you, the adjudication officer may issue such a 
decision. For purposes of the tests authorized under this section, the 
adjudication officer's decision shall be considered to be a decision as 
defined in Sec. 404.901. If the adjudication officer issues a decision 
under this section, it will be in writing and will give the findings of 
fact and the reasons for the decision. The adjudication officer will 
evaluate the issues relevant to determining whether or not you are 
disabled in accordance with the provisions of the Social Security Act, 
the rules in this part and part 422 of this chapter and applicable 
Social Security Rulings. For cases in which the adjudication officer 
issues a decision,

[[Page 235]]

he or she may determine your residual functional capacity in the same 
manner that an administrative law judge is authorized to do so in 
Sec. 404.1546. The adjudication officer may also evaluate the severity 
of your mental impairments in the same manner that an administrative law 
judge is authorized to do so under Sec. 404.1520a. The adjudication 
officer's decision will be based on the evidence which is included in 
the record and, subject to paragraph (c)(2) of this section, will 
complete the actions that will be taken on your request for hearing. A 
copy of the decision will be mailed to all parties at their last known 
address. We will tell you in the notice that the administrative law 
judge will not hold a hearing unless a party to the hearing requests 
that the hearing proceed. A request to proceed with the hearing must be 
made in writing within 30 days after the date the notice of the decision 
of the adjudication officer is mailed.
    (2) Effect of a decision by an adjudication officer. A decision by 
an adjudication officer which is wholly favorable to you under this 
section, and notification thereof, completes the administrative action 
on your request for hearing and is binding on all parties to the hearing 
and not subject to further review, unless--
    (i) You or another party requests that the hearing continue, as 
provided in paragraph (c)(1) of this section;
    (ii) The Appeals Council decides to review the decision on its own 
motion under the authority provided in Sec. 404.969;
    (iii) The decision is revised under the procedures explained in 
Secs. 404.987 through 404.989; or
    (iv) In a case remanded by a Federal court, the Appeals Council 
assumes jurisdiction under the procedures in Sec. 404.984.
    (3) Fee for a representative's services. The adjudication officer 
may authorize a fee for your representative's services if the 
adjudication officer makes a decision on your claim that is wholly 
favorable to you, and you are represented. The actions of, and any fee 
authorization made by, the adjudication officer with respect to 
representation will be made in accordance with the provisions of subpart 
R of this part.
    (d) Who may be an adjudication officer. The adjudication officer 
described in this section may be an employee of the Social Security 
Administration or a State agency that makes disability determinations 
for us.

[60 FR 47475, Sept. 13, 1995]

               Administrative Law Judge Hearing Procedures



Sec. 404.944  Administrative law judge hearing procedures--general.

    A hearing is open to the parties and to other persons the 
administrative law judge considers necessary and proper. At the hearing, 
the administrative law judge looks fully into the issues, questions you 
and the other witnesses, and accepts as evidence any documents that are 
material to the issues. The administrative law judge may stop the 
hearing temporarily and continue it at a later date if he or she 
believes that there is material evidence missing at the hearing. The 
administrative law judge may also reopen the hearing at any time before 
he or she mails a notice of the decision in order to receive new and 
material evidence. The administrative law judge may decide when the 
evidence will be presented and when the issues will be discussed.

[45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986]



Sec. 404.946  Issues before an administrative law judge.

    (a) General. The issues before the administrative law judge include 
all the issues brought out in the initial, reconsidered or revised 
determination that were not decided entirely in your favor. However, if 
evidence presented before or during the hearing causes the 
administrative law judge to question a fully favorable determination, he 
or she will notify you and will consider it an issue at the hearing.
    (b) New issues--(1) General. The administrative law judge may 
consider a new issue at the hearing if he or she notifies you and all 
the parties about the new issue any time after receiving the hearing 
request and before mailing notice of the hearing decision. The 
administrative law judge or any party may raise a new issue; an issue 
may be

[[Page 236]]

raised even though it arose after the request for a hearing and even 
though it has not been considered in an initial or reconsidered 
determination. However, it may not be raised if it involves a claim that 
is within the jurisdiction of a State agency under a Federal-State 
agreement concerning the determination of disability.
    (2) Notice of a new issue. The administrative law judge shall notify 
you and any other party if he or she will consider any new issue. Notice 
of the time and place of the hearing on any new issues will be given in 
the manner described in Sec. 404.938, unless you have indicated in 
writing that you do not wish to receive the notice.

[45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986]



Sec. 404.948  Deciding a case without an oral hearing before an administrative law judge.

    (a) Decision wholly favorable. If the evidence in the hearing record 
supports a finding in favor of you and all the parties on every issue, 
the administrative law judge may issue a hearing decision without 
holding an oral hearing. However, the notice of the decision will inform 
you that you have the right to an oral hearing and that you have a right 
to examine the evidence on which the decision is based.
    (b) Parties do not wish to appear. (1) The administrative law judge 
may decide a case on the record and not conduct an oral hearing if--
    (i) You and all the parties indicate in writing that you do not wish 
to appear before the administrative law judge at an oral hearing; or
    (ii) You live outside the United States and you do not inform us 
that you want to appear and there are no other parties who wish to 
appear.
    (2) When an oral hearing is not held, the administrative law judge 
shall make a record of the material evidence. The record will include 
the applications, written statements, certificates, reports, affidavits, 
and other documents that were used in making the determination under 
review and any additional evidence you or any other party to the hearing 
present in writing. The decision of the administrative law judge must be 
based on this record.
    (c) Case remanded for a revised determination. (1) The 
administrative law judge may remand a case to the appropriate component 
of our office for a revised determination if there is reason to believe 
that the revised determination would be fully favorable to you. This 
could happen if the administrative law judge receives new and material 
evidence or if there is a change in the law that permits the favorable 
determination.
    (2) Unless you request the remand, the administrative law judge 
shall notify you that your case has been remanded and tell you that if 
you object, you must notify him or her of your objections within 10 days 
of the date the case is remanded or we will assume that you agree to the 
remand. If you object to the remand, the administrative law judge will 
consider the objection and rule on it in writing.

[45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986]



Sec. 404.949  Presenting written statements and oral arguments.

    You or a person you designate to act as your representative may 
appear before the administrative law judge to state your case, to 
present a written summary of your case, or to enter written statements 
about the facts and law material to your case in the record. A copy of 
your written statements should be filed for each party.



Sec. 404.950  Presenting evidence at a hearing before an administrative law judge.

    (a) The right to appear and present evidence. Any party to a hearing 
has the right to appear before the administrative law judge, either 
personally or by means of a designated representative, to present 
evidence and to state his or her position.
    (b) Waiver of the right to appear. You may send the administrative 
law judge a waiver or a written statement indicating that you do not 
wish to appear at the hearing. You may withdraw this waiver any time 
before a notice of the hearing decision is mailed to you. Even if all of 
the parties waive their right to appear at a hearing, the administrative

[[Page 237]]

law judge may notify them of a time and a place for an oral hearing, if 
he or she believes that a personal appearance and testimony by you or 
any other party is necessary to decide the case.
    (c) What evidence is admissible at a hearing. The administrative law 
judge may receive evidence at the hearing even though the evidence would 
not be admissible in court under the rules of evidence used by the 
court.
    (d) Subpoenas. (1) When it is reasonably necessary for the full 
presentation of a case, an administrative law judge or a member of the 
Appeals Council may, on his or her own initiative or at the request of a 
party, issue subpoenas for the appearance and testimony of witnesses and 
for the production of books, records, correspondence, papers, or other 
documents that are material to an issue at the hearing.
    (2) Parties to a hearing who wish to subpoena documents or witnesses 
must file a written request for the issuance of a subpoena with the 
administrative law judge or at one of our offices at least 5 days before 
the hearing date. The written request must give the names of the 
witnesses or documents to be produced; describe the address or location 
of the witnesses or documents with sufficient detail to find them; state 
the important facts that the witness or document is expected to prove; 
and indicate why these facts could not be proven without issuing a 
subpoena.
    (3) We will pay the cost of issuing the subpoena.
    (4) We will pay subpoenaed witnesses the same fees and mileage they 
would receive if they had been subpoenaed by a Federal district court.
    (e) Witnesses at a hearing. Witnesses may appear at a hearing. They 
shall testify under oath or affirmation, unless the administrative law 
judge finds an important reason to excuse them from taking an oath or 
affirmation. The administrative law judge may ask the witnesses any 
questions material to the issues and shall allow the parties or their 
designated representatives to do so.
    (f) Collateral estoppel--issues previously decided. An issue at your 
hearing may be a fact that has already been decided in one of our 
previous determinations or decisions in a claim involving the same 
parties, but arising under a different title of the Act or under the 
Federal Coal Mine Health and Safety Act. If this happens, the 
administrative law judge will not consider the issue again, but will 
accept the factual finding made in the previous determination or 
decision unless there are reasons to believe that it was wrong.

[45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986]



Sec. 404.951  When a record of a hearing before an administrative law judge is made.

    The administrative law judge shall make a complete record of the 
hearing proceedings. The record will be prepared as a typed copy of the 
proceedings if--
    (a) The case is sent to the Appeals Council without a decision or 
with a recommended decision by the administrative law judge;
    (b) You seek judicial review of your case by filing an action in a 
Federal district court within the stated time period, unless we request 
the court to remand the case; or
    (c) An administrative law judge or the Appeals Council asks for a 
written record of the proceedings.

[45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986]



Sec. 404.952  Consolidated hearing before an administrative law judge.

    (a) General. (1) A consolidated hearing may be held if--
    (i) You have requested a hearing to decide your benefit rights under 
title II of the Act and you have also requested a hearing to decide your 
rights under another law we administer; and
    (ii) One or more of the issues to be considered at the hearing you 
requested are the same issues that are involved in another claim you 
have pending before us.
    (2) If the administrative law judge decides to hold the hearing on 
both claims, he or she decides both claims, even if we have not yet made 
an initial or reconsidered determination on the other claim.
    (b) Record, evidence, and decision. There will be a single record at 
a consolidated hearing. This means that the

[[Page 238]]

evidence introduced in one case becomes evidence in the other(s). The 
administrative law judge may make either a separate or consolidated 
decision.

[45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986]



Sec. 404.953  The decision of an administrative law judge.

    (a) General. The administrative law judge shall issue a written 
decision that gives the findings of fact and the reasons for the 
decision. The decision must be based on evidence offered at the hearing 
or otherwise included in the record. The administrative law judge shall 
mail a copy of the decision to all the parties at their last known 
address. The Appeals Council may also receive a copy of the decision.
    (b) Recommended decision. Although an administrative law judge will 
usually make a decision, he or she may send the case to the Appeals 
Council with a recommended decision where appropriate. The 
administrative law judge will mail a copy of the recommended decision to 
the parties at their last known addresses and send the recommended 
decision to the Appeals Council.

[45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986; 54 FR 
37792, Sept. 13, 1989]



Sec. 404.955  The effect of an administrative law judge's decision.

    The decision of the administrative law judge is binding on all 
parties to the hearing unless--
    (a) You or another party request a review of the decision by the 
Appeals Council within the stated time period, and the Appeals Council 
reviews your case;
    (b) You or another party requests a review of the decision by the 
Appeals Council within the stated time period, the Appeals Council 
denies your request for review, and you seek judicial review of your 
case by filing an action in a Federal district court;
    (c) The decision is revised by an administrative law judge or the 
Appeals Council under the procedures explained in Sec. 404.987;
    (d) The expedited appeals process is used;
    (e) The decision is a recommended decision directed to the Appeals 
Council; or
    (f) In a case remanded by a Federal court, the Appeals Council 
assumes jurisdiction under the procedures in Sec. 404.984.

[45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986; 54 FR 
37792, Sept. 13, 1989]



Sec. 404.956  Removal of a hearing request from an administrative law judge to the Appeals Council.

    If you have requested a hearing and the request is pending before an 
administrative law judge, the Appeals Council may assume responsibility 
for holding a hearing by requesting that the administrative law judge 
send the hearing request to it. If the Appeals Council holds a hearing, 
it shall conduct the hearing according to the rules for hearings before 
an administrative law judge. Notice shall be mailed to all parties at 
their last known address telling them that the Appeals Council has 
assumed responsibility for the case.

[45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986]



Sec. 404.957  Dismissal of a request for a hearing before an administrative law judge.

    An administrative law judge may dismiss a request for a hearing 
under any of the following conditions:
    (a) At any time before notice of the hearing decision is mailed, you 
or the party or parties that requested the hearing ask to withdraw the 
request. This request may be submitted in writing to the administrative 
law judge or made orally at the hearing.
    (b)(1)(i) Neither you nor the person you designate to act as your 
representative appears at the time and place set for the hearing and you 
have been notified before the time set for the hearing that your request 
for hearing may be dismissed without further notice if you did not 
appear at the time and place of hearing, and good cause has not been 
found by the administrative law judge for your failure to appear; or
    (ii) Neither you nor the person you designate to act as your 
representative appears at the time and place set for

[[Page 239]]

the hearing and within 10 days after the administrative law judge mails 
you a notice asking why you did not appear, you do not give a good 
reason for the failure to appear.
    (2) In determining good cause or good reason under this paragraph, 
we will consider any physical, mental, educational, or linguistic 
limitations (including any lack of facility with the English language) 
which you may have.
    (c) The administrative law judge decides that there is cause to 
dismiss a hearing request entirely or to refuse to consider any one or 
more of the issues because--
    (1) The doctrine of res judicata applies in that we have made a 
previous determination or decision under this subpart about your rights 
on the same facts and on the same issue or issues, and this previous 
determination or decision has become final by either administrative or 
judicial action;
    (2) The person requesting a hearing has no right to it under 
Sec. 404.930;
    (3) You did not request a hearing within the stated time period and 
we have not extended the time for requesting a hearing under 
Sec. 404.933(c); or
    (4) You die, there are no other parties, and we have no information 
to show that another person may be adversely affected by the 
determination that was to be reviewed at the hearing. However, dismissal 
of the hearing request will be vacated if, within 60 days after the date 
of the dismissal, another person submits a written request for a hearing 
on the claim and shows that he or she may be adversely affected by the 
determination that was to be reviewed at the hearing.

[45 FR 52081, Aug. 5, 1980, as amended at 50 FR 21438, May 24, 1985; 51 
FR 303, Jan. 3, 1986; 59 FR 1634, Jan. 12, 1994]



Sec. 404.958  Notice of dismissal of a request for a hearing before an administrative law judge.

    We shall mail a written notice of the dismissal of the hearing 
request to all parties at their last known address. The notice will 
state that there is a right to request that the Appeals Council vacate 
the dismissal action.

[45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986]



Sec. 404.959  Effect of dismissal of a request for a hearing before an administrative law judge.

    The dismissal of a request for a hearing is binding, unless it is 
vacated by an administrative law judge or the Appeals Council.

[45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986]



Sec. 404.960  Vacating a dismissal of a request for a hearing before an administrative law judge.

    An administrative law judge or the Appeals Council may vacate any 
dismissal of a hearing request if, within 60 days after the date you 
receive the dismissal notice, you request that the dismissal be vacated 
and show good cause why the hearing request should not have been 
dismissed. The Appeals Council itself may decide within 60 days after 
the notice of dismissal is mailed to vacate the dismissal. The Appeals 
Council shall advise you in writing of any action it takes.

[45 FR 52081, Aug. 5, 1980, as amended at 51 FR 303, Jan. 3, 1986]



Sec. 404.961  Prehearing and posthearing conferences.

    The administrative law judge may decide on his or her own, or at the 
request of any party to the hearing, to hold a prehearing or posthearing 
conference to facilitate the hearing or the hearing decision. The 
administrative law judge shall tell the parties of the time, place and 
purpose of the conference at least seven days before the conference 
date, unless the parties have indicated in writing that they do not wish 
to receive a written notice of the conference. At the conference, the 
administrative law judge may consider matters in addition to those 
stated in the notice, if the parties consent in writing. A record of the 
conference will be made. The administrative law judge shall issue an 
order stating all agreements and actions resulting from the conference. 
If the parties do not object, the agreements and actions become part of 
the hearing record and are binding on all parties.

[[Page 240]]



Sec. 404.965  [Reserved]

                         Appeals Council Review



Sec. 404.967  Appeals Council review--general.

    If you or any other party is dissatisfied with the hearing decision 
or with the dismissal of a hearing request, you may request that the 
Appeals Council review that action. The Appeals Council may deny or 
dismiss the request for review, or it may grant the request and either 
issue a decision or remand the case to an administrative law judge. The 
Appeals Council shall notify the parties at their last known address of 
the action it takes.



Sec. 404.968  How to request Appeals Council review.

    (a) Time and place to request Appeals Council review. You may 
request Appeals Council review by filing a written request. Any 
documents or other evidence you wish to have considered by the Appeals 
Council should be submitted with your request for review. You may file 
your request--
    (1) Within 60 days after the date you receive notice of the hearing 
decision or dismissal (or within the extended time period if we extend 
the time as provided in paragraph (b) of this section);
    (2) At one of our offices, the Veterans Administration Regional 
Office in the Philippines, or an office of the Railroad Retirement Board 
if you have 10 or more years of service in the railroad industry.
    (b) Extension of time to request review. You or any party to a 
hearing decision may ask that the time for filing a request for the 
review be extended. The request for an extension of time must be in 
writing. It must be filed with the Appeals Council, and it must give the 
reasons why the request for review was not filed within the stated time 
period. If you show that you had good cause for missing the deadline, 
the time period will be extended. To determine whether good cause 
exists, we use the standards explained in Sec. 404.911.



Sec. 404.969  Appeals Council initiates review.

    Anytime within 60 days after the date of a hearing decision or 
dismissal, the Appeals Council itself may decide to review the action 
that was taken. If the Appeals Council does review the hearing decision 
or dismissal, notice of the action will be mailed to all parties at 
their last known address.



Sec. 404.970  Cases the Appeals Council will review.

    (a) The Appeals Council will review a case if--
    (1) There appears to be an abuse of discretion by the administrative 
law judge;
    (2) There is an error of law;
    (3) The action, findings or conclusions of the administrative law 
judge are not supported by substantial evidence; or
    (4) There is a broad policy or procedural issue that may affect the 
general public interest.
    (b) If new and material evidence is submitted, the Appeals Council 
shall consider the additional evidence only where it relates to the 
period on or before the date of the administrative law judge hearing 
decision. The Appeals Council shall evaluate the entire record including 
the new and material evidence submitted if it relates to the period on 
or before the date of the administrative law judge hearing decision. It 
will then review the case if it finds that the administrative law 
judge's action, findings, or conclusion is contrary to the weight of the 
evidence currently of record.

[45 FR 52081, Aug. 5, 1980, as amended at 52 FR 4004, Feb. 9, 1987]



Sec. 404.971  Dismissal by Appeals Council.

    The Appeals Council will dismiss your request for review if you did 
not file your request within the stated period of time and the time for 
filing has not been extended. The Appeals Council may also dismiss any 
proceedings before it if--
    (a) You and any other party to the proceedings files a written 
request for dismissal; or

[[Page 241]]

    (b) You or any other party to the proceedings dies and the record 
clearly shows that dismissal will not adversely affect any other person 
who wishes to continue the action.



Sec. 404.972  Effect of dismissal of request for Appeals Council review.

    The dismissal of a request for Appeals Council review is binding and 
not subject to further review.



Sec. 404.973  Notice of Appeals Council review.

    When the Appeals Council decides to review a case, it shall mail a 
notice to all parties at their last known address stating the reasons 
for the review and the issues to be considered.



Sec. 404.974  Obtaining evidence from Appeals Council.

    You may request and receive copies or a statement of the documents 
or other written evidence upon which the hearing decision or dismissal 
was based and a copy or summary of the transcript of oral evidence. 
However, you will be asked to pay the costs of providing these copies 
unless there is a good reason why you should not pay.



Sec. 404.975  Filing briefs with the Appeals Council.

    Upon request, the Appeals Council shall give you and all other 
parties a reasonable opportunity to file briefs or other written 
statements about the facts and law relevant to the case. A copy of each 
brief or statement should be filed for each party.



Sec. 404.976  Procedures before Appeals Council on review.

    (a) Limitation of issues. The Appeals Council may limit the issues 
it considers if it notifies you and the other parties of the issues it 
will review.
    (b) Evidence. (1) The Appeals Council will consider all the evidence 
in the administrative law judge hearing record as well as any new and 
material evidence submitted to it which relates to the period on or 
before the date of the administrative law judge hearing decision. If you 
submit evidence which does not relate to the period on or before the 
date of the administrative law judge hearing decision, the Appeals 
Council will return the additional evidence to you with an explanation 
as to why it did not accept the additional evidence and will advise you 
of your right to file a new application. The notice returning the 
evidence to you will also advise you that if you file a new application 
within 6 months after the date of the Appeals Council's notice, your 
request for review will constitute a written statement indicating an 
intent to claim benefits in accordance with Sec. 404.630. If a new 
application is filed within 6 months of this notice, the date of the 
request for review will be used as the filing date for your application.
    (2) If additional evidence is needed, the Appeals Council may remand 
the case to an administrative law judge to receive evidence and issue a 
new decision. However, if the Appeals Council decides that it can obtain 
the evidence more quickly, it may do so, unless it will adversely affect 
your rights.
    (c) Oral argument. You may request to appear before the Appeals 
Council to present oral argument. The Appeals Council will grant your 
request if it decides that your case raises an important question of law 
or policy or that oral argument would help to reach a proper decision. 
If your request to appear is granted, the Appeals Council will tell you 
the time and place of the oral argument at least 10 days before the 
scheduled date.

[45 FR 52081, Aug. 5, 1980, as amended at 52 FR 4004, Feb. 9, 1987]



Sec. 404.977  Case remanded by Appeals Council.

    (a) When the Appeals Council may remand a case. The Appeals Council 
may remand a case to an administrative law judge so that he or she may 
hold a hearing and issue a decision or a recommended decision. The 
Appeals Council may also remand a case in which additional evidence is 
needed or additional action by the administrative law judge is required.
    (b) Action by administrative law judge on remand. The administrative 
law judge shall take any action that is ordered by the Appeals Council 
and may take any additional action that is not inconsistent with the 
Appeals Council's remand order.

[[Page 242]]

    (c) Notice when case is returned with a recommended decision. When 
the administrative law judge sends a case to the Appeals Council with a 
recommended decision, a notice is mailed to the parties at their last 
known address. The notice tells them that the case has been sent to the 
Appeals Council, explains the rules for filing briefs or other written 
statements with the Appeals Council, and includes a copy of the 
recommended decision.
    (d) Filing briefs with and obtaining evidence from the Appeals 
Council. (1) You may file briefs or other written statements about the 
facts and law relevant to your case with the Appeals Council within 20 
days of the date that the recommended decision is mailed to you. Any 
party may ask the Appeals Council for additional time to file briefs or 
statements. The Appeals Council will extend this period, as appropriate, 
if you show that you had good cause for missing the deadline.
    (2) All other rules for filing briefs with and obtaining evidence 
from the Appeals Council follow the procedures explained in this 
subpart.
    (e) Procedures before the Appeals Council. (1) The Appeals Council, 
after receiving a recommended decision, will conduct its proceedings and 
issue its decision according to the procedures explain in this subpart.
    (2) If the Appeals Council believes that more evidence is required, 
it may again remand the case to an administrative law judge for further 
inquiry into the issues, rehearing, receipt of evidence, and another 
decision or recommended decision. However, if the Appeals Council 
decides that it can get the additional evidence more quickly, it will 
take appropriate action.



Sec. 404.979  Decision of Appeals Council.

    After it has reviewed all the evidence in the administrative law 
judge hearing record and any additional evidence received, subject to 
the limitations on Appeals Council consideration of additional evidence 
in Secs. 404.970(b) and 404.976(b), the Appeals Council will make a 
decision or remand the case to an administrative law judge. The Appeals 
Council may affirm, modify or reverse the administrative law judge 
hearing decision or it may adopt, modify or reject a recommended 
decision. A copy of the Appeals Council's decision will be mailed to the 
parties at their last known address.

[52 FR 4004, Feb. 9, 1987]



Sec. 404.981  Effect of Appeals Council's decision or denial of review.

    The Appeals Council may deny a party's request for review or it may 
decide to review a case and make a decision. The Appeals Council's 
decision, or the decision of the administrative law judge if the request 
for review is denied, is binding unless you or another party file an 
action in Federal district court, or the decision is revised. You may 
file an action in a Federal district court within 60 days after the date 
you receive notice of the Appeals Council's action.



Sec. 404.982  Extension of time to file action in Federal district court.

    Any party to the Appeals Council's decision or denial of review, or 
to an expedited appeals process agreement, may request that the time for 
filing an action in a Federal district court be extended. The request 
must be in writing and it must give the reasons why the action was not 
filed within the stated time period. The request must be filed with the 
Appeals Council, or if it concerns an expedited appeals process 
agreement, with one of our offices. If you show that you had good cause 
for missing the deadline, the time period will be extended. To determine 
whether good cause exists, we use the standards explained in 
Sec. 404.911.

                           Court Remand Cases



Sec. 404.983  Case remanded by a Federal court.

    When a Federal court remands a case to the Secretary for further 
consideration, the Appeals Council, acting on behalf of the Secretary, 
may make a decision, or it may remand the case to an administrative law 
judge with instructions to take action and issue a decision or return 
the case to the Appeals Council with a recommended decision. If the case 
is remanded by the Appeals Council, the procedures explained in 
Sec. 404.977 will be followed. Any issues relating to your claim may be

[[Page 243]]

considered by the administrative law judge whether or not they were 
raised in the administrative proceedings leading to the final decision 
in your case.

[54 FR 37792, Sept. 13, 1989]



Sec. 404.984  Appeals Council review of administrative law judge decision in a case remanded by a Federal court.

    (a) General. In accordance with Sec. 404.983, when a case is 
remanded by a Federal court for further consideration, the decision of 
the administrative law judge will become the final decision of the 
Secretary after remand on your case unless the Appeals Council assumes 
jurisdiction of the case. The Appeals Council may assume jurisdiction 
based on written exceptions to the decision of the administrative law 
judge which you file with the Appeals Council or based on its authority 
pursuant to paragraph (c) of this section. If the Appeals Council 
assumes jurisdiction of your case, any issues relating to your claim may 
be considered by the Appeals Council whether or not they were raised in 
the administrative proceedings leading to the final decision in your 
case or subsequently considered by the administrative law judge in the 
administrative proceedings following the court's remand order. The 
Appeals Council will either make a new, independent decision based on 
the entire record that will be the final decision of the Secretary after 
remand or remand the case to an administrative law judge for further 
proceedings.
    (b) You file exceptions disagreeing with the decision of the 
administrative law judge. (1) If you disagree with the decision of the 
administrative law judge, in whole or in part, you may file exceptions 
to the decision with the Appeals Council. Exceptions may be filed by 
submitting a written statement to the Appeals Council setting forth your 
reasons for disagreeing with the decision of the administrative law 
judge. The exceptions must be filed within 30 days of the date you 
receive the decision of the administrative law judge or an extension of 
time in which to submit exceptions must be requested in writing within 
the 30-day period. A timely request for a 30-day extension will be 
granted by the Appeals Council. A request for an extension of more than 
30 days should include a statement of reasons as to why you need the 
additional time.
    (2) If written exceptions are timely filed, the Appeals Council will 
consider your reasons for disagreeing with the decision of the 
administrative law judge and all the issues presented by your case. If 
the Appeals Council concludes that there is no reason to change the 
decision of the administrative law judge, it will issue a notice to you 
addressing your exceptions and explaining why no change in the decision 
of the administrative law judge is warranted. In this instance, the 
decision of the administrative law judge is the final decision of the 
Secretary after remand.
    (3) When you file written exceptions to the decision of the 
administrative law judge, the Appeals Council may assume jurisdiction at 
any time, even after the 60-day time period which applies when you do 
not file exceptions. If the Appeals Council assumes jurisdiction, it 
will make a new, independent decision based on its consideration of the 
entire record affirming, modifying, or reversing the decision of the 
administrative law judge or remand the case to an administrative law 
judge for further proceedings, including a new decision. The new 
decision of the Appeals Council is the final decision of the Secretary 
after remand.
    (c) Appeals Council assumes jurisdiction without exceptions being 
filed. Any time within 60 days after the date of the decision of the 
administrative law judge, the Appeals Council may decide to assume 
jurisdiction of your case even though no written exceptions have been 
filed. Notice of this action will be mailed to all parties at their last 
known address. You will be provided with the opportunity to file briefs 
or other written statements with the Appeals Council about the facts and 
law relevant to your case. After the briefs or other written statements 
have been received or the time allowed (usually 30 days) for submitting 
them has expired, the Appeals Council will either issue a final decision 
of the Secretary affirming, modifying, or reversing the decision of the 
administrative law

[[Page 244]]

judge, or remand the case to an administrative law judge for further 
proceedings, including a new decision.
    (d) Exceptions are not filed and the Appeals Council does not 
otherwise assume jurisdiction. If no exceptions are filed and the 
Appeals Council does not assume jurisdiction of your case, the decision 
of the administrative law judge becomes the final decision of the 
Secretary after remand.

[54 FR 37792, Sept. 13, 1989; 54 FR 40779, Oct. 3, 1989]



Sec. 404.985  Application of circuit court law.

    The procedures which follow apply to administrative determinations 
or decisions on claims involving the application of circuit court law.
    (a) We will apply a holding in a United States Court of Appeals 
decision which we determine conflicts with our interpretation of a 
provision of the Social Security Act or regulations unless the 
Government seeks further review of that decision or we relitigate the 
issue presented in the decision in accordance with paragraphs (c) and 
(d) of this section. We will apply the holding to claims at all levels 
of administrative adjudication within the applicable circuit unless the 
holding, by its nature, applies only at certain levels of adjudication.
    (b) When we determine that a United States Court of Appeals holding 
conflicts with our interpretation of a provision of the Social Security 
Act or regulations and the Government does not seek further review or is 
unsuccessful on further review, we will issue a Social Security 
Acquiescence Ruling that describes the administrative case and the court 
decision, identifies the issue(s) involved, and explains how we will 
apply the holding, including, as necessary, how the holding relates to 
other decisions within the applicable circuit. These rulings will 
generally be effective on the date of their publication in the Federal 
Register and will apply to all determinations and decisions made on or 
after that date. If we make a determination or decision between the date 
of a circuit court decision and the date we publish an Acquiescence 
Ruling, the claimant may request application of the published ruling to 
the prior determination or decision. The claimant must first demonstrate 
that application of the ruling could change the prior determination or 
decision. A claimant may so demonstrate by submitting a statement which 
cites the ruling and indicates what finding or statement in the 
rationale of the prior determination or decision conflicts with the 
ruling. If the claimant can so demonstrate, we will readjudicate the 
claim at the level at which it was last adjudicated in accordance with 
the ruling. Any readjudication will be limited to consideration of the 
issue(s) covered by the ruling and any new determination or decision on 
readjudication will be subject to administrative and judicial review in 
accordance with this subpart. Our denial of a request for readjudication 
will not be subject to further administrative or judicial review. If a 
claimant files a request for readjudication within the sixty day appeal 
period and we deny that request, we shall extend the time to file an 
appeal on the merits of the claim to sixty days after the date that we 
deny the request for readjudication.
    (c) After we have published a Social Security Acquiescence Ruling to 
reflect a holding of a United States Court of Appeals on an issue, we 
may decide under certain conditions to relitigate that issue within the 
same circuit. We will relitigate only when the conditions specified in 
paragraphs (c) (2) and (3) of this section are met, and, in general, one 
of the events specified in paragraph (c)(1) of this secton occurs.
    (1) Activating events: (i) An action by both Houses of Congress 
indicates that a court case on which an Acquiescence Ruling was based 
was decided inconsistently with congressional intent, such as may be 
expressed in a joint resolution, an appropriations restriction, or 
enactment of legislation which affects a closely analogous body of law;
    (ii) A statement in a majority opinion of the same circuit indicates 
that the court might no longer follow its previous decision if a 
particular issue were presented again;
    (iii) Subsequent circuit court precedent in other circuits supports 
our interpretation of the Social Security Act

[[Page 245]]

or regulations on the issue(s) in question; or
    (iv) A subsequent Supreme Court decision presents a reasonable legal 
basis for questioning a circuit court holding upon which we base a 
Social Security Acquiescence Ruling.
    (2) The General Counsel of the Department of Health and Human 
Services, after consulting with the Department of Justice, concurs that 
relitigation of an issue and application of our interpretation of the 
Social Security Act or regulations at the administrative level within 
the circuit would be appropriate.
    (3) We publish a notice in the Federal Register that we intend to 
relitigate an Acquiescence Ruling issue and that we will apply our 
interpretation of the Social Security Act or regulations at the 
administrative level within the circuit to claims selected for 
relitigation. The notice will explain why we made this decision.
    (d) When we decide to relitigate an issue, we will provide a notice 
explaining our action to all affected claimants. In adjudicating claims 
subject to relitigation, decisionmakers throughout the SSA 
administrative review process will apply our interpretation of the 
Social Security Act and regulations, but will also state in written 
determinations or decisions how the claims would have been decided under 
the circuit standard. Claims not subject to relitigation will continue 
to be decided under the Acquiescence Ruling in accordance with the 
circuit standard. So that affected claimants can be readily identified 
and any subsequent decision of the circuit court or the Supreme Court 
can be implemented quickly and efficiently, we will maintain a listing 
of all claimants who receive this notice and will provide them with the 
relief ordered by the court.
    (e) We will rescind as obsolete a Social Security Acquiescence 
Ruling and apply our interpretation of the Social Security Act or 
regulations by publishing a notice in the Federal Register when any of 
the following events occurs:
    (1) The Supreme Court overrules or limits a circuit court holding 
that was the basis of an Acquiescence Ruling;
    (2) A circuit court overrules or limits itself on an issue that was 
the basis of an Acquiescence Ruling;
    (3) A Federal law is enacted that removes the basis for the holding 
in a decision of a circuit court that was the subject of an Acquiescence 
Ruling; or
    (4) We subsequently clarify, modify or revoke the regulation or 
ruling that was the subject of circuit court holding that we determined 
conflicts with our interpretation of the Social Security Act or 
regulations, or we subsequently publish a new regulation(s) addressing 
an issue(s) not previously included in our regulations when that 
issue(s) was the subject of a circuit court holding that conflicted with 
our interpretation of the Social Security Act or regulations and that 
holding was not compelled by the statute or Constitution.

[55 FR 1018, Jan. 11, 1990]

           Reopening and Revising Determinations and Decisions



Sec. 404.987  Reopening and revising determinations and decisions.

    (a) General. Generally, if you are dissatisfied with a determination 
or decision made in the administrative review process, but do not 
request further review within the stated time period, you lose your 
right to further review and that determination or decision becomes 
final. However, a determination or a decision made in your case which is 
otherwise final and binding may be reopened and revised by us.
    (b) Procedure for reopening and revision. We may reopen a final 
determination or decision on our own initiative, or you may ask that a 
final determination or a decision to which you were a party be reopened. 
In either instance, if we reopen the determination or decision, we may 
revise that determination or decision. The conditions under which we may 
reopen a previous determination or decision, either on our own 
initiative or at your request, are explained in Sec. 404.988.

[59 FR 8535, Feb. 23, 1994]



Sec. 404.988  Conditions for reopening.

    A determination, revised determination, decision, or revised 
decision may be reopened--

[[Page 246]]

    (a) Within 12 months of the date of the notice of the initial 
determination, for any reason;
    (b) Within four years of the date of the notice of the initial 
determination if we find good cause, as defined in Sec. 404.989, to 
reopen the case; or
    (c) At any time if--
    (1) It was obtained by fraud or similar fault (see Sec. 416.1488(c) 
of this chapter for factors which we take into account in determining 
fraud or similar fault);
    (2) Another person files a claim on the same earnings record and 
allowance of the claim adversely affects your claim;
    (3) A person previously determined to be dead, and on whose earnings 
record your entitlement is based, is later found to be alive;
    (4) Your claim was denied because you did not prove that a person 
died, and the death is later established--
    (i) By a presumption of death under Sec. 404.721(b); or
    (ii) By location or identification of his or her body;
    (5) The Railroad Retirement Board has awarded duplicate benefits on 
the same earnings record;
    (6) It either--
    (i) Denies the person on whose earnings record your claim is based 
gratuitous wage credits for military or naval service because another 
Federal agency (other than the Veterans Administration) has erroneously 
certified that it has awarded benefits based on the service; or
    (ii) Credits the earnings record of the person on which your claim 
is based with gratuitous wage credits and another Federal agency (other 
than the Veterans Administration) certifies that it has awarded a 
benefit based on the period of service for which the wage credits were 
granted;
    (7) It finds that the claimant did not have insured status, but 
earnings were later credited to his or her earnings record to correct 
errors apparent on the face of the earnings record (section 205(c)(5)(C) 
of the Act), to enter items transferred by the Railroad Retirement 
Board, which were credited under the Railroad Retirement Act when they 
should have been credited to the claimant's Social Security earnings 
record (section 205(c)(5)(D) of the Act), or to correct errors made in 
the allocation of wages or self-employment income to individuals or 
periods (section 205(c)(5)(G) of the Act), which would have given him or 
her insured status at the time of the determination or decision if the 
earnings had been credited to his or her earnings record at that time, 
and the evidence of these earnings was in our possession or the 
possession of the Railroad Retirement Board at the time of the 
determination or decision;
    (8) It is wholly or partially unfavorable to a party, but only to 
correct clerical error or an error that appears on the face of the 
evidence that was considered when the determination or decision was 
made;
    (9) It finds that you are entitled to monthly benefits or to a lump 
sum death payment based on the earnings of a deceased person, and it is 
later established that:
    (i) You were convicted of a felony or an act in the nature of a 
felony for intentionally causing that person's death; or
    (ii) If you were subject to the juvenile justice system, 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;
    (10) It either--
    (i) Denies the person on whose earnings record your claim is based 
deemed wages for internment during World War II because of an erroneous 
finding that a benefit based upon the internment has been determined by 
an agency of the United States to be payable under another Federal law 
or under a system established by that agency; or
    (ii) Awards the person on whose earnings record your claim is based 
deemed wages for internment during World War II and a benefit based upon 
the internment is determined by an agency of the United States to be 
payable under another Federal law or under a system established by that 
agency; or
    (11) It is incorrect because--
    (i) You were convicted of a crime that affected your right to 
receive benefits or your entitlement to a period of disability; or

[[Page 247]]

    (ii) Your conviction of a crime that affected your right to receive 
benefits or your entitlement to a period of disability is overturned.

[45 FR 52081, Aug. 5, 1980, as amended at 49 FR 46369, Nov. 26, 1984; 51 
FR 18313, May 19, 1986; 59 FR 1635, Jan. 12, 1994; 60 FR 19165, Apr. 17, 
1995]



Sec. 404.989  Good cause for reopening.

    (a) We will find that there is good cause to reopen a determination 
or decision if--
    (1) New and material evidence is furnished;
    (2) A clerical error in the computation or recomputation of benefits 
was made; or
    (3) The evidence that was considered in making the determination or 
decision clearly shows on its face that an error was made.
    (b) We will not find good cause to reopen your case if the only 
reason for reopening is a change of legal interpretation or 
adminstrative ruling upon which the determination or decision was made.



Sec. 404.990  Finality of determinations and decisions on revision of an earnings record.

    A determination or a decision on a revision of an earnings record 
may be reopened only within the time period and under the conditions 
provided in section 205(c) (4) or (5) of the Act, or within 60 days 
after the date you receive notice of the determination or decision, 
whichever is later.



Sec. 404.991  Finality of determinations and decisions to suspend benefit payments for entire taxable year because of earnings.

    A determination or decision to suspend benefit payments for an 
entire taxable year because of earnings may be reopened only within the 
time period and under the conditions provided in section 203(h)(1)(B) of 
the Act.



Sec. 404.991a  Late completion of timely investigation.

    We may revise a determination or decision after the applicable time 
period in Sec. 404.988(a) or Sec. 404.988(b) expires if we begin an 
investigation into whether to revise the determination or decision 
before the applicable time period expires. We may begin the 
investigation either based on a request by you or by an action on our 
part. The investigation is a process of gathering facts after a 
determination or decision has been reopened to determine if a revision 
of the determination or decision is applicable.
    (a) If we have diligently pursued the investigation to its 
conclusion, we may revise the determination or decision. The revision 
may be favorable or unfavorable to you. ``Diligently pursued'' means 
that in light of the facts and circumstances of a particular case, the 
necessary action was undertaken and carried out as promptly as the 
circumstances permitted. Diligent pursuit will be presumed to have been 
met if we conclude the investigation and if necessary, revise the 
determination or decision within 6 months from the date we began the 
investigation.
    (b) If we have not diligently pursued the investigation to its 
conclusion, we will revise the determination or decision if a revision 
is applicable and if it will be favorable to you. We will not revise the 
determination or decision if it will be unfavorable to you.

[49 FR 46369, Nov. 26, 1984; 49 FR 48036, Dec. 10, 1984]



Sec. 404.992  Notice of revised determination or decision.

    (a) When a determination or decision is revised, notice of the 
revision will be mailed to the parties at their last known address. The 
notice will state the basis for the revised determination or decision 
and the effect of the revision. The notice will also inform the parties 
of the right to further review.
    (b) If a reconsidered determination that you are disabled, based on 
medical factors, is reopened for the purpose of being revised, you will 
be notified, in writing, of the proposed revision and of your right to 
request that a disability hearing be held before a revised reconsidered 
determination is issued. If a revised reconsidered determination is 
issued, you may request a hearing before an administrative law judge.
    (c) If an administrative law judge or the Appeals Council proposes 
to revise a decision, and the revision would be based on evidence not 
included in the

[[Page 248]]

record on which the prior decision was based, you and any other parties 
to the decision will be notified, in writing, of the proposed action and 
of your right to request that a hearing be held before any further 
action is taken. If a revised decision is issued by an administrative 
law judge, you and any other party may request that it be reviewed by 
the Appeals Council, or the Appeals Council may review the decision on 
its own initiative.
    (d) If an administrative law judge or the Appeals Council proposes 
to revise a decision, and the revision would be based only on evidence 
included in the record on which the prior decision was based, you and 
any other parties to the decision will be notified, in writing, of the 
proposed action. If a revised decision is issued by an administrative 
law judge, you and any other party may request that it be reviewed by 
the Appeals Council, or the Appeals Council may review the decision on 
its own initiative.

[51 FR 303, Jan. 3, 1986]



Sec. 404.993  Effect of revised determination or decision.

    A revised determination or decision is binding unless--
    (a) You or another party to the revised determination file a written 
request for reconsideration or a hearing before an administrative law 
judge, as appropriate;
    (b) You or another party to the revised decision file, as 
appropriate, a request for review by the Appeals Council or a hearing 
before an administrative law judge;
    (c) The Appeals Council reviews the revised decision; or
    (d) The revised determination or decision is further revised.

[51 FR 303, Jan. 3, 1986]



Sec. 404.994  Time and place to request a hearing on revised determination or decision.

    You or another party to a revised determination or decision may 
request, as approporiate, further review or a hearing on the revision by 
filing a request in writing at one of our offices within 60 days after 
the date you receive notice of the revision. Further review or a hearing 
will be held on the revision according to the rules of this subpart.



Sec. 404.995  Finality of findings when later claim is filed on same earnings record.

    If two claims for benefits are filed on the same earnings records, 
findings of fact made in a determination on the first claim may be 
revised in determining or deciding the second claim, even though the 
time limit for revising the findings made in the first claim has passed. 
However, a finding in connection with a claim that a person was fully or 
currently insured at the time of filing an application, at the time of 
death, or any other pertinent time, may be revised only under the 
conditions stated in Sec. 404.988.



Sec. 404.996  Increase in future benefits where time period for reopening expires.

    If, after the time period for reopening under Sec. 404.988(b) has 
ended, new evidence is furnished showing a different date of birth or 
additional earnings for you (or for the person on whose earnings record 
your claim was based) which would otherwise increase the amount of your 
benefits, we will make the increase (subject to the limitations provided 
in section 205(c)(4) and (5) of the Act) but only for benefits payable 
after the time we received the new evidence. (If the new evidence we 
receive would lead to a decrease in your benefits, we will take no 
action if we cannot reopen under Sec. 404.988.)

[49 FR 46369, Nov. 26, 1984]

                   Payment of Certain Travel Expenses



Sec. 404.999a  Payment of certain travel expenses--general.

    When you file a claim for Social Security benefits, you may incur 
certain travel expenses in pursuing your claim. Sections 404.999b-
404.999d explain who may be reimbursed for travel expenses, the types of 
travel expenses that are reimbursable, and when and how to claim 
reimbursement. Generally, the agency that requests you to travel will be 
the agency that reimburses you. No later than when it notifies you of 
the examination or hearing described in

[[Page 249]]

Sec. 404.999b(a), that agency will give you information about the right 
to travel reimbursement, the right to advance payment and how to request 
it, the rules on means of travel and unusual travel costs, and the need 
to submit receipts.

[51 FR 8808, Mar. 14, 1986]



Sec. 404.999b  Who may be reimbursed.

    (a) The following individuals may be reimbursed for certain travel 
expenses--
    (1) You, when you attend medical examinations upon request in 
connection with disability determinations; these are medical 
examinations requested by the State agency or by us when additional 
medical evidence is necessary to make a disability determination (also 
referred to as consultative examinations, see Sec. 404.1517);
    (2) You, your representative (see Sec. 404.1705 (a) and (b)), and 
all unsubpoenaed witnesses we or the State agency determines to be 
reasonably necessary who attend disability hearings; and
    (3) You, your representative, and all unsubpoenaed witnesses we 
determine to be reasonably necessary who attend hearings on any claim 
for benefits before an administrative law judge.
    (b) Sections 404.999a through 404.999d do not apply to subpoenaed 
witnesses. They are reimbursed under Secs. 404.950(d) and 404.916(b)(1).

[51 FR 8808, Mar. 14, 1986]



Sec. 404.999c  What travel expenses are reimbursable.

    Reimbursable travel expenses include the ordinary expenses of public 
or private transportation as well as unusual costs due to special 
circumstances.
    (a) Reimbursement for ordinary travel expenses is limited--
    (1) To the cost of travel by the most economical and expeditious 
means of transportation available and appropriate to the individual's 
condition of health as determined by the State agency or by us, 
considering the available means in the following order--
    (i) Common carrier (air, rail, or bus);
    (ii) Privately owned vehicles;
    (iii) Commercially rented vehicles and other special conveyances;
    (2) If air travel is necessary, to the coach fare for air travel 
between the specified travel points involved unless first-class air 
travel is authorized in advance by the State agency or by the Secretary 
in instances when--
    (i) Space is not available in less-than-first-class accommodations 
on any scheduled flights in time to accomplish the purpose of the 
travel;
    (ii) First-class accommodations are necessary because you, your 
representative, or reasonably necessary witness is so handicapped or 
otherwise impaired that other accommodations are not practical and the 
impairment is substantiated by competent medical authority;
    (iii) Less-than-first-class accommodations on foreign carriers do 
not provide adequate sanitation or health standards; or
    (iv) The use of first-class accommodations would result in an 
overall savings to the government based on economic considerations, such 
as the avoidance of additional subsistence costs that would be incurred 
while awaiting availability of less-than-first-class accommodations.
    (b) Unusual travel costs may be reimbursed but must be authorized in 
advance and in writing by us or the appropriate State official, as 
applicable, unless they are unexpected or unavoidable; we or the State 
agency must determine their reasonableness and necessity and must 
approve them before payment can be made. Unusual expenses that may be 
covered in connection with travel include, but are not limited to--
    (1) Ambulance services;
    (2) Attendant services;
    (3) Meals;
    (4) Lodging; and
    (5) Taxicabs.
    (c) If we reimburse you for travel, we apply the rules in 
Secs. 404.999b through 404.999d and the same rates and conditions of 
payment that govern travel expenses for Federal employees as authorized 
under 41 CFR chapter 301. If a State agency reimburses you, the 
reimbursement rates shall be determined by the rules in Secs. 404.999b 
through 404.999d and that agency's rules and regulations

[[Page 250]]

and may differ from one agency to another and also may differ from the 
Federal reimbursement rates.
    (1) When public transportation is used, reimbursement will be made 
for the actual costs incurred, subject to the restrictions in paragraph 
(a)(2) of this section on reimbursement for first-class air travel.
    (2) When travel is by a privately owned vehicle, reimbursement will 
be made at the current Federal or State mileage rate specified for that 
geographic location plus the actual costs of tolls and parking, if 
travel by a privately owned vehicle is determined appropriate under 
paragraph (a)(1) of this section. Otherwise, the amount of reimbursement 
for travel by privately owned vehicle cannot exceed the total cost of 
the most economical public transportation available for travel between 
the same two points. Total cost includes the cost for all the authorized 
travelers who travel in the same privately owned vehicle. Advance 
approval of travel by privately owned vehicle is not required (but could 
give you assurance of its approval).
    (3) Sometimes your health condition dictates a mode of 
transportation different from the most economical and expeditious. In 
order for your health to require a mode of transportation other than 
common carrier or passenger car, you must be so handicapped or otherwise 
impaired as to require special transportation arrangements and the 
conditions must be substantiated by competent medical authority.
    (d) For travel to a hearing--
    (1) Reimbursement is limited to travel within the U.S. For this 
purpose, the U.S. includes the U.S. as defined in Sec. 404.2(c)(6) and 
the Northern Mariana Islands.
    (2) We or the State agency will reimburse you, your representative, 
or an unsubpoenaed witness only if the distance from the person's 
residence or office (whichever he or she travels from) to the hearing 
site exceeds 75 miles.
    (3) For travel expenses incurred on or after April 1, 1991, the 
amount of reimbursement under this section for travel by your 
representative to attend a disability hearing or a hearing before an 
administrative law judge shall not exceed the maximum amount allowable 
under this section for travel to the hearing site from any point within 
the geographic area of the office having jurisdiction over the hearing.
    (i) The geographic area of the office having jurisdiction over the 
hearing means, as appropriate--
    (A) The designated geographic service area of the State agency 
adjudicatory unit having responsibility for providing the disability 
hearing;
    (B) If a Federal disability hearing officer holds the disability 
hearing, the geographic area of the State (which includes a State as 
defined in Sec. 404.2(c)(5) and also includes the Northern Mariana 
Islands) in which the claimant resides or, if the claimant is not a 
resident of a State, in which the hearing officer holds the disability 
hearing; or
    (C) The designated geographic service area of the Office of Hearings 
and Appeals hearing office having responsibility for providing the 
hearing before an administrative law judge.
    (ii) We or the State agency determine the maximum amount allowable 
for travel by a representative based on the distance to the hearing site 
from the farthest point within the appropriate geographic area. In 
determining the maximum amount allowable for travel between these two 
points, we or the State agency apply the rules in paragraphs (a) through 
(c) of this section and the limitations in paragraph (d) (1) and (4) of 
this section. If the distance between these two points does not exceed 
75 miles, we or the State agency will not reimburse any of your 
representative's travel expenses.
    (4) If a change in the location of the hearing is made at your 
request from the location we or the State agency selected to one farther 
from your residence or office, neither your additional travel expenses 
nor the additional travel expenses of your representative and witnesses 
will be reimbursed.

[51 FR 8808, Mar. 14, 1986, as amended at 59 FR 8532, Feb. 23, 1994]



Sec. 404.999d  When and how to claim reimbursement.

    (a)(1) Generally, you will be reimbursed for your expenses after 
your trip. However, travel advances may be authorized if you request 
prepayment

[[Page 251]]

and show that the requested advance is reasonable and necessary.
    (2) You must submit to us or the State agency, as appropriate, an 
itemized list of what you spent and supporting receipts to be 
reimbursed.
    (3) Arrangements for special means of transportation and related 
unusual costs may be made only if we or the State agency authorizes the 
costs in writing in advance of travel, unless the costs are unexpected 
or unavoidable. If they are unexpected or unavoidable we or the State 
agency must determine their reasonableness and necessity and must 
approve them before payment may be made.
    (4) If you receive prepayment, you must, within 20 days after your 
trip, provide to us or the State agency, as appropriate, an itemized 
list of your actual travel costs and submit supporting receipts. We or 
the State agency will require you to pay back any balance of the 
advanced amount that exceeds any approved travel expenses within 20 days 
after you are notified of the amount of that balance. (State agencies 
may have their own time limits in place of the 20-day periods in the 
preceding two sentences.)
    (b) You may claim reimbursable travel expenses incurred by your 
representative for which you have been billed by your representative, 
except that if your representative makes a claim for them to us or the 
State, he or she will be reimbursed directly.

(Approved by the Office of Management and Budget under control number 
0960-0434)


[51 FR 8809, Mar. 14, 1986, as amended at 51 FR 44983, Dec. 16, 1986]



   Subpart K--Employment, Wages, Self-Employment, and Self-Employment 
                                 Income

    Authority:  Secs. 202(v), 205(a), 209, 210, 211, 229(a), 230, 231, 
and 702(a)(5) of the Social Security Act (42 U.S.C. 402(v), 405(a), 409, 
410, 411, 429(a), 430, 431, and 902(a)(5)).

    Source:  45 FR 20075, Mar. 27, 1980, unless otherwise noted.



Sec. 404.1001  Introduction.

    (a)(1) In general, your social security benefits are based on your 
earnings that are on our records. (Subpart I of this part explains how 
we keep earnings records.) Basically, you receive credit only for 
earnings that are covered for social security purposes. The earnings are 
covered only if your work is covered. If you are an employee, your 
employer files a report of your covered earnings. If you are self-
employed, you file a report of your covered earnings. Some work is 
covered by social security and some work is not. Also, some earnings are 
covered by social security and some are not. It is important that you 
are aware of what kinds of work and earnings are covered so that you 
will know whether your earnings should be on our records.
    (2) If you are an employee, your covered work is called employment. 
This subpart explains our rules on the kinds of work that are covered as 
employment and the kinds that are not. We also explain who is an 
employee.
    (3) If your work is employment, your covered earnings are called 
wages. This subpart explains our rules on the kinds of earnings that are 
covered as wages and the kinds that are not.
    (4) If you work for yourself, you are self-employed. The subpart 
explains our rules on the kinds of self-employment that are covered and 
the kinds that are not.
    (5) If you are self-employed, your covered earnings are called self-
employment income which is based on your net earnings from self-
employment during a taxable year. This subpart explains our rules on the 
kinds of earnings that are covered as net earnings from self-employment 
and the kinds that are not. We also explain how to figure your net 
earnings from self-employment and determine your self-employment income 
which is the amount that goes on our records.
    (b) We include basically only the rules that apply to current work 
or that the law requires us to publish as regulations. We generally do 
not include rules that are seldom used or do not apply to current work 
because of changes in the law.
    (c) The Social Security Act and the Internal Revenue Code (Code) 
have similar provisions on coverage of your earnings because the one law 
specifies the earnings for which you will receive credit for benefit 
purposes and the other the earnings on which you must

[[Page 252]]

pay social security taxes. Because the Code (title 26 U.S.C.) has some 
provisions that are not in the Act but which may affect you, you may 
need to refer to the Code or the Internal Revenue Service regulations 
(title 26 of the Code of Federal Regulations) to get complete 
information about your social security coverage.
    (d) The rules are organized in the following manner:
    (1) Sections 404.1003 through 404.1010 include the rules on 
employment. We discuss what we mean by employment, what work is covered 
as employment for social security purposes, and describe the kinds of 
workers who are considered employees.
    (2) In Secs. 404.1012 through 404.1038 we discuss various types of 
work that are not covered as employment for social security purposes.
    (3) The rules on wages are found in Secs. 404.1041 through 404.1059. 
We describe what is meant by the term wages, discuss the various types 
of pay that count as wages, and state when the pay counts for Social 
Security purposes. We include explanations of agriculture labor, 
domestic services, service not in the course of the employer's business, 
and home worker services under wages because special standards apply to 
these services.
    (4) Our rules on self-employment and self-employment income are 
found in Secs. 404.1065 through 404.1096. We discuss what we mean by 
self-employment, what we mean by a trade or business, what types of 
activities are considered self-employment, how to determine self-
employment income, and how net earnings from self-employment are 
figured.

[45 FR 20075, Mar. 27, 1980, as amended at 55 FR 7309, Mar. 1, 1990; 61 
FR 38365, July 24, 1996]



Sec. 404.1002  Definitions.

    (a) General definitions. As used in this subpart--
    The Act means the Social Security Act, as amended.
    The Code means the Internal Revenue Code of 1954, as amended.
    We, our, or us means the Social Security Administration.
    You or your means any person whose earnings from employment or self-
employment are included or excluded under social security.
    (b) Other definitions. For ease of reference, we have placed other 
definitions in the sections of this subpart in which they are used.

                               Employment



Sec. 404.1003  Employment.

    Employment means, generally, any service covered by social security 
performed by an employee for his or her employer. The rules on who is an 
employee and who is an employer are contained in Secs. 404.1005 through 
404.1010. Section 404.1004 states the general rule on the kinds of work 
covered as employment. Exceptions to the general rule are contained in 
Secs. 404.1012 through 404.1038 which explain the kinds of work excluded 
from employment. All of these rules apply to current work unless 
otherwise indicated.

[45 FR 20075, Mar. 27, 1980, as amended at 61 FR 38365, July 24, 1996]



Sec. 404.1004  What work is covered as employment.

    (a) General requirements of employment. Unless otherwise excluded 
from coverage under Secs. 404.1012 through 404.1038, the work you 
perform as an employee for your employer is covered as employment under 
social security if one of the following situations applies:
    (1) You perform the work within the United States (whether or not 
you or your employer are a citizen or resident of the United States).
    (2) You perform the work outside the United States and you are a 
citizen or resident of the United States working for--
    (i) An American employer; or
    (ii) A foreign affiliate of an American employer that has in effect 
an agreement covering your work under section 3121(l) of the Code.
    (3) You perform the work on or in connection with an American vessel 
or American aircraft and the conditions in paragraphs (a)(3) (i) and 
(ii) are met. Your citizenship or residence does not matter. The 
citizenship or residence of your employer matters only if it affects 
whether the vessel is an American vessel.

[[Page 253]]

    (i) You enter into the contract of employment within the United 
States or the vessel or aircraft touches at a port or airport within the 
United States during the performance of your contract of employment on 
the vessel or aircraft.
    (ii) You are employed on and in connection with the vessel or 
aircraft when outside the United States.
    (4) Your work is designated as employment or recognized as 
equivalent to employment under a totalization agreement. (See 
Sec. 404.1913. An agreement may exempt work from coverage as well as 
extend coverage to work.)
    (5) Your work performed after December 31, 1994, is in the employ of 
an international organization pursuant to a transfer from a Federal 
agency under section 3582 of title 5 of the United States Code and both 
the following are met:
    (i) Immediately before the transfer, your work for the Federal 
agency was covered employment; and
    (ii) You would be entitled, upon separation from the international 
organization and proper application, to reemployment with the Federal 
agency under section 3582.
    (b) Explanation of terms used in this section--(1) American employer 
means--
    (i) The United States or any of its instrumentalities;
    (ii) A State, a political subdivision of a State, or an 
instrumentality of any one or more States or political subdivisions of a 
State;
    (iii) An individual who is a resident of the United States;
    (iv) A partnership, if at least two-thirds of the partners are 
residents of the United States;
    (v) A trust, if all of the trustees are residents of the United 
States; or
    (vi) A corporation organized under the laws of the United States or 
of any State.
    (2) American aircraft means an aircraft registered under the laws of 
the United States.
    (3) American vessel means a vessel documented or numbered under the 
laws of the United States. It also includes a vessel neither documented 
nor numbered under the laws of the United States, nor documented under 
the laws of any foreign country, if its crew is employed solely by one 
or more citizens or residents of the United States, or corporations 
organized under the laws of the United States or of any State.
    (4) Citizen of the United States includes a citizen of the 
Commonwealth of Puerto Rico, the Virgin Islands, Guam or American Samoa.
    (5) Foreign affiliate refers to a foreign affiliate as defined in 
section 3121(l)(6) of the Code.
    (6) On and in connection with refers to the performance of work on a 
vessel or aircraft which concerns the vessel or aircraft. Examples of 
this kind of work are the services performed on a vessel by employees as 
officers or crew members, or as employees of concessionaires, of the 
vessel.
    (7) On or in connection with refers to work performed on the vessel 
or aircraft and to work which concerns the vessel or aircraft but not 
actually performed on it. For example, shore services in connection with 
repairing, loading, unloading, or provisioning a vessel performed by 
employees as officers or crew members, or as employees of 
concessionaires, of the vessel are included, since this work concerns 
the vessel though not performed on it.
    (8) State refers to the 50 States, the District of Columbia, the 
Commonwealth of Puerto Rico, the Virgin Islands, Guam and American 
Samoa.
    (9) United States when used in a geographical sense means the 50 
States, the District of Columbia, the Commonwealth of Puerto Rico, the 
Virgin Islands, Guam and American Samoa.

[45 FR 20075, Mar. 27, 1980, as amended at 50 FR 36573, Sept. 9, 1985; 
55 FR 51687, Dec. 17, 1990; 61 FR 38365, July 24, 1996]



Sec. 404.1005  Who is an employee.

    You must be an employee for your work to be covered as employment 
for social security purposes. You are an employee if you are--
    (a) A corporation officer as described in Sec. 404.1006;
    (b) A common-law employee as described in Sec. 404.1007 (unless you 
are, after December 31, 1982, a qualified real estate agent or direct 
seller as described in Sec. 404.1069); or

[[Page 254]]

    (c) An agent-driver or commission-driver, a full-time life insurance 
salesman, a home worker, or a traveling or city salesman as described in 
Sec. 404.1008.

[45 FR 20075, Mar. 27, 1980, as amended at 48 FR 40515, Sept. 8, 1983]



Sec. 404.1006  Corporation officer.

    If you are an officer of a corporation, you are an employee of the 
corporation if you are paid or you are entitled to be paid for holding 
office or performing services. However, if you are a director of a 
corporation, we consider you to be self-employed when you work as a 
director.



Sec. 404.1007  Common-law employee.

    (a) General. The common-law rules on employer-employee status are 
the basic test for determining whether you and the person or firm you 
work for have the relationship of employee and employer. Even though you 
are considered self-employed under the common-law rules, you may still 
be an employee for social security purposes under Sec. 404.1006 
(relating to corporation officers) or Sec. 404.1008 (relating to workers 
in four specific jobs). In general, you are a common-law employee if the 
person you work for may tell you what to do and how, when, and where to 
do it. The person or firm you work for does not have to give these 
orders, but needs only the right to do so. Whether or not you are a 
common-law employee is not always clear. Several aspects of your job 
arrangement are considered in determining whether you are an employee or 
are self-employed under the common-law rules.
    (b) Factors that show employee status. Some aspects of a job 
arrangement that may show you are an employee are as follows:
    (1) The person you work for may fire you.
    (2) The person you work for furnishes you with tools or equipment 
and a place to work.
    (3) You receive training from the person you work for or are 
required to follow that person's instructions.
    (4) You must do the work yourself.
    (5) You do not hire, supervise, or pay assistants (unless you are 
employed as a foreman, manager, or supervisor).
    (6) The person you work for sets your hours of work, requires you to 
work full-time, or restricts you from doing work for others.
    (7) The person you work for pays your business or traveling 
expenses.
    (8) You are paid by the hour, week or month.
    (c) Factors that show self-employed status. Some aspects of a job 
arrangement or business venture that may show you are self-employed are 
as follows:
    (1) You make a profit or suffer a loss.
    (2) You are hired to complete a certain job and if you quit before 
the job is completed you may be liable for damages.
    (3) You work for a number of persons or firms at the same time.
    (4) You advertise to the general public that you are available to 
perform services.
    (5) You pay your own expenses and have your own equipment and work 
place.
    (d) Questions about your status. If there is a question about 
whether you are working as an employee or are self-employed, we or the 
Internal Revenue Service will make a determination after examining all 
of the facts of your case.



Sec. 404.1008  Agent-driver or commission-driver, full-time life insurance salesman, home worker, or traveling or city salesman.

    (a) General. In addition to common-law employees and corporation 
officers, we consider workers in the four types of jobs described in 
paragraphs (b) through (e) of this section to be employees if their 
services are performed under the following conditions:
    (1) Under the work arrangement the worker is expected to do 
substantially all of the work personally.
    (2) The worker must not have a substantial investment in the 
facilities used to do the work. Facilities include such things as a 
place to work, storage space, equipment, machinery and office furniture. 
However, facilities do not include tools, equipment or clothing of the 
kind usually provided by employees nor transportation such as a car or 
truck.
    (3) The work must be performed as part of a continuing work 
relationship between the worker and the person for

[[Page 255]]

whom the work is done. The work performed must not be a single 
transaction. Part-time and regular seasonal work may be performed as 
part of a continuing work relationship.
    (b) Agent-driver or commission-driver. This is a driver hired by 
another person to distribute meat products, vegetable products, fruit 
products, bakery products, beverages (other than milk), or laundry or 
dry-cleaning services. We consider you an agent-driver or commission-
driver if you are paid a commission based on your sales or the 
difference between the price you charge your customers and the amount 
you pay for the goods or services. It makes no difference whether you 
drive your own truck or the company's truck or whether you solicit the 
customers you serve.
    (c) Full-time life insurance salesman. A full-time life insurance 
salesman's main activity is selling life insurance or annuity contracts, 
or both, mostly for one life insurance company. If you are a full-time 
life insurance salesman, you are probably provided office space, 
stenographic help, telephone, forms, rate books and advertising 
materials by the company or general agent, without cost to you.
    (d) Home worker. A home worker is a person who works away from the 
place of business of the person he or she works for, usually at home. If 
you are a home worker and you work according to the instructions of the 
person you work for, on material or goods furnished by that person, and 
are required to return the finished product to that person (or another 
person whom he or she designates), you are an employee.
    (e) Traveling or city salesman. The main activity of a traveling or 
city salesman is taking orders for merchandise for another person or 
firm. The salesman gets orders from wholesalers, retailers, contractors, 
or operators of hotels, restaurants or other firms whose main business 
is furnishing food or lodging or both. The salesman sells merchandise to 
others for resale or for use in their own business. We consider you a 
traveling or city salesman if most of your work is done for a single 
person or firm even though you have incidental sideline sales 
activities. However, you are not an employee under this paragraph as to 
those sideline sales. If you take orders for a number of persons or 
firms as a multiple line salesman, you are not a traveling or city 
salesman.



Sec. 404.1009  Who is an employer.

    A person is an employer if he or she employs at least one employee. 
Sometimes it is not clear who a worker's employer is, since the employer 
does not always pay the worker's wages. When there is a question about 
who the employer is, we use the common-law rules to identify the 
employer (see Sec. 404.1007).



Sec. 404.1010  Farm crew leader as employer.

    A farm crew leader furnishes workers to do agricultural labor for 
another person, usually a farm operator. If the crew leader pays the 
workers (the money can be the crew leader's or the farm operator's), the 
crew leader is deemed to be the employer of the workers and is self-
employed. However, the crew leader is not deemed the employer of the 
workers if there is a written agreement between the crew leader and the 
farm operator naming the crew leader as an employee. If the crew leader 
does not have this agreement and does not pay the workers, we use the 
common-law rules to determine the crew leader's status.

                      Work Excluded From Employment



Sec. 404.1012  Work excluded from employment.

    Certain kinds of work performed by an employee are excluded from 
employment. They are described in Secs. 404.1014 through 404.1038 and 
are exceptions to the general rule in Sec. 404.1004 on the kinds of work 
that are covered as employment. In general, if the work performed by an 
employee is excluded from employment, the work is not covered under 
social security. However, certain kinds of work performed by an 
employee, even though excluded from employment, are covered as self-
employment for social security purposes. In addition, if part of the 
work performed by an employee for the same employer is included as 
employment and part is excluded from employment,

[[Page 256]]

all the work may be included or all may be excluded as described in 
Sec. 404.1013.

[45 FR 20075, Mar. 27, 1980, as amended at 61 FR 38365, July 24, 1996]



Sec. 404.1013  Included-excluded rule.

    (a) If part of your work for an employer during a pay period is 
covered as employment and part excluded, all of your work during that 
period is considered covered if at least one-half of your time in the 
pay period is in covered work. If you spend most of your time in a pay 
period doing work that is excluded, all of your work in that period is 
excluded.
    (b) A pay period is the period for which your employer ordinarily 
pays you. It cannot be more than 31 consecutive days. If the actual 
period is not always the same, your usual pay period will be used for 
applying the included-excluded rule.
    (c) The included-excluded rule does not apply and your covered work 
will be counted if--
    (1) Part of your work is covered by the Railroad Retirement Tax Act 
and part by the Social Security Act; or
    (2) You have no usual pay period of 31 consecutive days or less, or 
you have separate pay periods for covered and excluded work.



Sec. 404.1014  Domestic service by a student for a local college club, fraternity or sorority.

    (a) General. If you are a student and do work of a household nature 
in or about the club rooms or house of a local college club or local 
chapter of a college fraternity or sorority, and are enrolled and 
regularly attending classes at a school, college, or university, your 
work is not covered as employment.
    (b) Explanation of terms. (1) Work of a household nature means the 
type of work done by cooks, waiters, butlers, maids, janitors, 
laundresses, furnacemen, handymen, gardeners, housekeepers and 
housemothers.
    (2) A local college club or local chapter of a college fraternity or 
sorority does not include an alumni club or chapter. Also, if the club 
rooms or house are used mostly for supplying board or lodging to 
students or nonstudents as a business, the work done is not excluded by 
this section.



Sec. 404.1015  Family services.

    (a) General. If you work as an employee of a relative, the work is 
excluded from employment if--
    (1) You work while under age 18 in the employ of your parent;
    (2) You do nonbusiness work (see Sec. 404.1058(a)(3) for an 
explanation of nonbusiness work) or perform domestic service (as 
described in Sec. 404.1057(b)) as an employee of your parent while under 
age 21;
    (3) You do nonbusiness work as an employee of your son, daughter, or 
spouse; or
    (4) You perform domestic service in the private home of your son, 
daughter or spouse as an employee of that son, daughter or spouse 
unless--
    (i) The son or daughter has a child (either natural, adopted or 
stepchild) living in the home who is under age 18 or, if older, has a 
mental or physical condition that requires the personal care and 
supervision of an adult for at least four continuous weeks in the 
calendar quarter in which the work is done; and
    (ii) The son or daughter is a widower or widow, or is divorced and 
has not remarried, or has a spouse living in the home who, because of a 
physical or mental condition, is incapable of taking care of the child 
and the condition is present for at least four continuous weeks in the 
calendar quarter in which the work is done.
    (b) Family work for other than sole proprietor. Work for a 
corporation is not excluded under this section, and work for a 
partnership is not excluded unless the required family relationship 
exists between the employee and each of the partners.

[45 FR 20075, Mar. 27, 1980, as amended at 57 FR 59913, Dec. 17, 1992]



Sec. 404.1016  Foreign agricultural workers.

    Farm work done by foreign workers lawfully admitted to the United 
States on a temporary basis to do farm work is not covered as 
employment. The excluded work includes any services connected with farm 
operations.

[[Page 257]]



Sec. 404.1017  Sharefarmers.

    (a) If you are a sharefarmer, your services are not covered as 
employment, but as self-employment.
    (b) You are a sharefarmer if you have an arrangement with the owner 
or tenant of the land and the arrangement provides for all of the 
following:
    (1) You will produce agricultural or horticultural commodities on 
the land.
    (2) The commodities you produce or the income from their sale will 
be divided between you and the person with whom you have the agreement.
    (3) The amount of your share depends on the amount of commodities 
you produce.
    (c) If under your agreement you are to receive a specific rate of 
pay, a fixed sum of money or a specific amount of the commodities not 
based on your production, you are not a sharefarmer for social security 
purposes.



Sec. 404.1018  Work by civilians for the United States Government or its instrumentalities--wages paid after 1983.

    (a) General. If you are a civilian employee of the United States 
Government or an instrumentality of the United States, your employer 
will determine the amount of remuneration paid for your work and the 
periods in or for which such remuneration was paid. We will determine 
whether your employment is covered under Social Security, the periods of 
such covered employment, and whether remuneration paid for your work 
constitutes wages for purposes of Social Security. To make these 
determinations we will consider the date of your appointment to Federal 
service, your previous Federal employing agencies and positions (if 
any), whether you were covered under Social Security or a Federal 
civilian retirement system, and whether you made a timely election to 
join a retirement system established by the Federal Employees' 
Retirement System Act of 1986 or the Foreign Service Pension System Act 
of 1986. Using this information and the following rules, we will 
determine that your service is covered unless--
    (1) The service would have been excluded if the rules in effect in 
January 1983 had remained in effect; and
    (i) You have been continuously performing such service since 
December 31, 1983; or
    (ii) You are receiving an annuity from the Civil Service Retirement 
and Disability Fund or benefits for service as an employee under another 
retirement system established by a law of the United States and in 
effect on December 31, 1983, for employees of the Federal Government 
other than a system for members of the uniformed services.
    (2) The service is under the provisions of 28 U.S.C. 294, relating 
to the assignment of retired Federal justices and judges to active duty.
    (b) Covered services--(1) Federal officials. Any service for which 
you received remuneration after 1983 is covered if performed--
    (i) As the President or the Vice President of the United States;
    (ii) In a position placed in the Executive Schedule under 5 U.S.C. 
5312 through 5317;
    (iii) As a noncareer appointee in the Senior Executive Service or a 
noncareer member of the Senior Foreign Service;
    (iv) In a position to which you are appointed by the President, or 
his designee, or the Vice President under 3 U.S.C. 105(a)(1), 106(a)(1), 
or 197(a)(1) or (b)(1) if the maximum rate of basic pay for such 
position is at or above the rate for level V of the Executive Schedule;
    (v) As the Chief Justice of the United States, an Associate Justice 
of the Supreme Court, a judge of a United States court of appeals, a 
judge of a United States district court, including the district court of 
a territory, a judge of the United States Claims Court, a judge of the 
United States Court of International Trade, a judge of the United States 
Tax Court, a United States magistrate, or a referee in bankruptcy or 
United States bankruptcy judge; or
    (vi) As a Member, Delegate, or Resident Commissioner of or to the 
Congress.
    (2) Legislative Branch Employees. Service you perform for the 
legislative branch of the Federal Government for which you are paid 
remuneration after 1983 is generally covered by Social Security if such 
service is not covered by the Civil Service Retirement System

[[Page 258]]

or by another retirement system established by a law of the United 
States and in effect on December 31, 1983, for employees of the Federal 
Government other than a system for members of the uniformed services.
    (3) Election to become subject to the Federal Employees' Retirement 
System or the Foreign Service Pension System. Your service is covered 
if:
    (i) You timely elect after June 30, 1987, under either the Federal 
Employees' Retirement System Act or the Central Intelligence Agency 
Retirement Act, to become subject to the Federal Employees Retirement 
System provided in 5 U.S.C. 8401 through 8479; or
    (ii) You timely elect after June 30, 1987, to become subject to the 
Foreign Service Pension System provided in 22 U.S.C. 4071 through 
4071(k).
    (4) Subsequent Federal civilian service. If you perform Federal 
civilian service on or after November 10, 1988, which is described in 
paragraph (b)(1), (b)(2), or (b)(3) of this section you will continue to 
be covered for any subsequent Federal Civilian Service not excluded 
under paragraph (c) of this section.
    (c) Excluded Service. Notwithstanding Sec. 404.1018a and this 
section, your service is not covered if performed--
    (1) In a penal institution of the United States as an inmate 
thereof;
    (2) As an employee included under 5 U.S.C. 5351(2) relating to 
certain interns, student nurses, and other student employees of 
hospitals of the Federal Government, other than as a medical or dental 
intern or a medical or dental resident in training;
    (3) As an employee serving on a temporary basis in case of fire, 
storm, earthquake, flood, or other similar emergency; or
    (4) Under any other statutory provisions that would require 
exclusion for reasons other than being in the employ of the Federal 
Government or an instrumentality of such.
    (d) Work as a Peace Corps Volunteer. Work performed as a volunteer 
or volunteer leader within the meaning of the Peace Corps Act, 22 U.S.C. 
2501 through 2523, is covered as employment.
    (e) Work as Job Corps Enrollee. Work performed as an enrollee in the 
Job Corps is considered to be performed in the employ of the United 
States.
    (f) Work by Volunteer in Service to America. Work performed and 
training received as a Volunteer in Service to America is considered to 
be performed in the employ of the United States if the volunteer is 
enrolled for a period of service of at least 1 year. If the enrollment 
is for less than 1 year, we use the common-law rules in Sec. 404.1007 to 
determine the volunteer's status.
    (g) Work for international organizations. Work performed for an 
international organization by an employee who was transferred from a 
Federal agency is generally covered as employment if, immediately before 
the transfer, the employee's services for the Federal agency were 
covered. (See Sec. 404.1004(a)(5) and Sec. 404.1034(c).)
    (h) Meaning of ``continuously performing''--(1) Absence of less than 
366 days. You are considered to be continuously performing service 
described in paragraph (a)(1)(i) of this section if you return to the 
performance of such service after being separated from such service for 
a period of less than 366 consecutive days, regardless of whether the 
period began before, on, or after December 31, 1983.
    (2) Other absences. You are considered to be continuously performing 
service described in paragraph (a)(1)(i) of this section regardless of 
the length of separation or whether the period of separation began 
before, on, or after December 31, 1983, if you--
    (i) Return to the performance of such service after being detailed 
or transferred from such service to an international organization as 
described under 5 U.S.C. 3343 or under 5 U.S.C. 3581;
    (ii) Are reemployed or reinstated after being separated from such 
service for the purpose of accepting employment with the American 
Institute of Taiwan as provided under 22 U.S.C. 3310;
    (iii) Return to the performance of such service after performing 
service as a member of a uniformed service including service in the 
National Guard and temporary service in the Coast Guard Reserve and 
after exercising restoration or reemployment rights as provided under 38 
U.S.C. chapter 43; or

[[Page 259]]

    (iv) Return to the performance of such service after employment by a 
tribal organization to which section 105(e)(2) of the Indian Self-
Determination Act applies.

[53 FR 38944, Oct. 4, 1988; 53 FR 44551, Nov. 3, 1988, as amended at 55 
FR 24891, June 19, 1990; 61 FR 38365, July 24, 1996]



Sec. 404.1018a  Work by civilians for the United States Government or its instrumentalities--remuneration paid prior to 1984.

    (a) General--remuneration paid prior to 1984. If you worked as a 
civilian employee of the United States Government or an instrumentality 
of the United States, your work was excluded from employment if that 
work was covered by a retirement system established by law. Your work 
for an instrumentality that was exempt from Social Security tax was also 
excluded. Certain other work for the United States or an instrumentality 
of the United States was specifically excluded and is described in this 
section.
    (b) Work covered by a retirement system--remuneration paid prior to 
1984. Work you did as an employee of the United States or an 
instrumentality of the United States was excluded from employment if the 
work was covered by a retirement system established by a law of the 
United States. If you had a choice as to whether your work was covered 
by the retirement system, the work was not covered by that system until 
you chose that coverage. In order for the exclusion to apply, the work 
you did, rather than the position you held, must have been covered by 
the retirement system.
    (c) Work that was specifically excluded--remuneration paid prior to 
1984. Work performed by an employee of the United States or an 
instrumentality of the United States was excluded if it was done--
    (1) As the President or Vice President of the United States;
    (2) As a Member of the United States Congress, a Delegate to 
Congress, or a Resident Commissioner;
    (3) In the legislative branch of the United States Government;
    (4) By a student nurse, student dietitian, student physical 
therapist or student occupational therapist who was assigned or attached 
to a Federal hospital, clinic, or medical or dental laboratory;
    (5) By a person designated as a student employee with the approval 
of the Office of Personnel Management who was assigned or attached 
primarily for training purposes to a Federal hospital, clinic, or 
medical or dental laboratory, other than a medical or dental intern or 
resident in training;
    (6) By an employee who served on a temporary basis in case of fire, 
storm, earthquake, flood, or other similar emergency;
    (7) By a person to whom the Civil Service Retirement Act did not 
apply because the person's services were subject to another retirement 
system established by a law of the United States or by the 
instrumentality of the United States for which the work was done, other 
than the retirement system established by the Tennessee Valley Authority 
under the plan approved by the Secretary of Health, Education, and 
Welfare on December 28, 1956; or
    (8) By an inmate of a penal institution of the United States, if the 
work was done in the penal institution.
    (d) Work for instrumentalities of the United States exempt from 
employer tax--remuneration paid prior to 1984. (1) Work performed by an 
employee of an instrumentality of the United States was excluded if--
    (i) The instrumentality was exempt from the employer tax imposed by 
section 3111 of the Code or by section 1410 of the Internal Revenue Code 
of 1939; and
    (ii) The exemption was authorized by another law specifically 
referring to these sections.
    (2) Work performed by an employee of an instrumentality of the 
United States was excluded if the instrumentality was not on December 
31, 1950, subject to the employer tax imposed by section 1410 of the 
Internal Revenue Code of 1939 and the work was covered by a retirement 
system established by the instrumentality, unless--
    (i) The work was for a corporation wholly owned by the United 
States;
    (ii) The work was for a Federal land bank association, a production 
credit association, a Federal Reserve Bank, a Federal Credit Union, a 
Federal land

[[Page 260]]

bank, a Federal intermediate credit bank, a bank for cooperatives, or a 
Federal Home Loan Bank;
    (iii) The work was for a State, county, or community committee under 
the Agriculture Marketing Service and the Commodity Stabilization 
Service, formerly the Production and Marketing Administration; or
    (iv) The work was by a civilian, who was not paid from funds 
appropriated by the Congress, in activities conducted by an 
instrumentality of the United States subject to the jurisdiction of the 
Secretary of Defense or Secretary of Transportation at installations 
intended for the comfort, pleasure, contentment, and mental and physical 
improvement of personnel of the Defense Department or the Coast Guard, 
such as--
    (A) Army and Air Force Exchange Service;
    (B) Army and Air Force Motion Picture Service;
    (C) Coast Guard Exchanges;
    (D) Navy Ship's Service Stores; and
    (E) Marine Corps Post Exchanges.
    (3) For purposes of paragraph (d) (2) of this section, if an 
employee has a choice as to whether his or her work was covered by a 
retirement system, the work was not covered by that system until he or 
she chose that coverage. The work done, rather than the position held, 
must have been covered by the retirement system.
    (e) Work as a Peace Corps Volunteer--remuneration paid prior to 
1984. Work performed as a volunteer or volunteer leader within the 
meaning of the Peace Corps Act, 22 U.S.C. 2501 through 2523, was covered 
as employment.
    (f) Work as Job Corps Enrollee--remuneration paid prior to 1984. 
Work performed as an enrollee in the Job Corps was considered to be 
performed in the employ of the United States.
    (g) Work by Volunteer in Service to America--remuneration paid prior 
to 1984. Work performed and training received as a Volunteer in Service 
to America was considered to be performed in the employ of the United 
States if the volunteer was enrolled for a period of service of at least 
one year. If the enrollment was for less than one year, we used the 
common-law rules in Sec. 404.1007 to determine the volunteer's status.

[53 FR 38945, Oct. 4, 1988]



Sec. 404.1018b  Medicare qualified government employment.

    (a) General. The work of a Federal, State, or local government 
employee not otherwise subject to Social Security coverage may 
constitute Medicare qualified government employment. Medicare qualified 
government employment means any service which in all ways meets the 
definition of ``employment'' for title II purposes of the Social 
Security Act, except for the fact that the service was performed by a 
Federal, State or local government employee. This employment is used 
solely in determining eligibility for protection under part A of title 
XVIII of the Social Security Act (Hospital Insurance) and for coverage 
under the Medicare program for end-stage renal disease.
    (b) Federal employment. If, beginning with remuneration paid after 
1982, your service as a Federal employee is not otherwise covered 
employment under the Social Security Act, it is Medicare qualified 
government employment unless excluded under Sec. 404.1018(c).
    (c) State and local government employment. If, beginning with 
service performed after March 31, 1986, your service as an employee of a 
State or political subdivision (as defined in Sec. 404.1202(b)), Guam, 
American Samoa, the District of Columbia, or the Northern Mariana 
Islands is excluded from covered employment solely because of section 
210(a)(7) of the Social Security Act which pertains to employees of 
State and local governments (note Secs. 404.1020 through 404.1022), it 
is Medicare qualified government employment except as provided in 
paragraphs (c) (1) and (2) of this section.
    (1) An individual's service shall not be treated as employment if 
performed--
    (i) By an individual employed by a State or political subdivision 
for the purpose of relieving that individual from unemployment;
    (ii) In a hospital, home, or other institution by a patient or 
inmate thereof as an employee of a State, political

[[Page 261]]

subdivision, or of the District of Columbia;
    (iii) By an individual, as an employee of a State, political 
subdivision or the District of Columbia serving on a temporary basis in 
case of fire, storm, snow, earthquake, flood, or other similar 
emergency;
    (iv) By an individual as an employee included under 5 U.S.C. 5351(2) 
(relating to certain interns, student nurses, and other student 
employees of hospitals of the District of Columbia government), other 
than as a medical or dental intern or a medical or dental resident in 
training; or
    (v) By an election official or election worker paid less than $100 
in a calendar year for such service prior to 1995, or less than $1,000 
for service performed in any calendar year after 1994 and before 2000, 
or, for service performed in any calendar year after 1999, less than the 
$1,000 base amount, as adjusted pursuant to section 218(c)(8)(B) of the 
Social Security Act to reflect changes in wages in the economy. We will 
publish this adjustment of the $1,000 base amount in the Federal 
Register on or before November 1 preceding the year for which the 
adjustment is made.
    (2) An individual's service performed for an employer shall not be 
treated as employment if--
    (i) The service would be excluded from coverage under section 
210(a)(7) of the Social Security Act which pertains to employees of 
State and local governments;
    (ii) The service is performed by an individual who--
    (A) Was performing substantial and regular service for remuneration 
for that employer before April 1, 1986;
    (B) Was a bona fide employee of that employer on March 31, 1986; and
    (C) Did not enter into the employment relationship with that 
employer for purposes of meeting the requirements of paragraphs 
(c)(2)(ii) (A) and (B) of this section; and
    (iii) After March 31, 1986, but prior to the service being 
performed, the employment relationship with that employer had not been 
terminated.

[57 FR 59913, Dec. 17, 1992, as amended at 61 FR 38366, July 24, 1996]



Sec. 404.1019  Work as a member of a uniformed service of the United States.

    (a) Your work as a member of a uniformed service of the United 
States is covered under Social Security (unless creditable under the 
Railroad Retirement Act), if--
    (1) On or after January 1, 1957, the work is service on active duty 
or active duty for training but not including service performed while on 
leave without pay; or
    (2) On or after January 1, 1988, the work is service on inactive 
duty training.
    (b) You are a member of a uniformed service if--
    (1) You are appointed, enlisted, or inducted into (or a retired 
member of)--
    (i) One of the armed services (Army, Navy, Air Force, Marine Corps, 
or Coast Guard); or
    (ii) A component of one of the armed services, including any reserve 
component as defined in Veterans' Benefits, 38 U.S.C. 101 (except the 
Coast Guard Reserve as a temporary member);
    (2) You are a commissioned officer (including a retired commissioned 
officer) of the National Oceanic and Atmospheric Administration or the 
Regular or Reserve Corps of the Public Health Service;
    (3) You are a member of the Fleet Reserve or Fleet Marine Corps 
Reserve;
    (4) You are a cadet at the United States Military, Coast Guard, or 
Air Force Academy, or a midshipman at the United States Naval Academy;
    (5) You are a member of the Reserve Officers Training Corps, the 
Naval Reserve Officers Training Corps, or the Air Force Reserve Officers 
Training Corps, when ordered to annual training duty for 14 days or more 
including periods of authorized travel to and from that duty; or
    (6) You are selected for active military or naval training under the 
Military Selective Service Act or are provisionally accepted for active 
duty in the military or naval service and you are ordered or directed to 
a place for final acceptance or entry upon active duty and are on the 
way to or from, or at, that place.

[45 FR 20075, Mar. 27, 1980, as amended at 57 FR 59913, Dec. 17, 1992]

[[Page 262]]



Sec. 404.1020  Work for States and their political subdivisions and instrumentalities.

    (a) General. If you work as an employee of a State, a political 
subdivision of a State, or any wholly owned instrumentality of one or 
more of these, your work is excluded from employment unless--
    (1) The work is covered under an agreement under section 218 of the 
Act (see subpart M of this part); or
    (2) The work is covered transportation service as defined in section 
210(k) of the Act (see paragraph (c) of this section).
    (3) You perform services after July 1, 1991, as an employee of a 
State (other than the District of Columbia, Guam, or American Samoa), a 
political subdivision of a State, or any wholly owned instrumentality of 
one or more of the foregoing and you are not a member of a retirement 
system of such State, political subdivision, or instrumentality. 
Retirement system has the meaning given that term in section 218(b)(4) 
of the Act, except as provided in regulations prescribed by the 
Secretary of the Treasury. This paragraph does not apply to services 
performed--
    (i) As an employee employed to relieve you from unemployment;
    (ii) In a hospital, home, or other institution where you are a 
patient or inmate thereof;
    (iii) As an employee serving on a temporary basis in case of fire, 
storm, snow, earthquake, flood, or other similar emergency;
    (iv) As an election official or election worker if the remuneration 
paid in a calendar year for such service prior to 1995 is less than 
$100, or less than $1000 for service performed in any calendar year 
after 1994 and before 2000, or, for service performed in any calendar 
year after 1999, less than the $1000 base amount, as adjusted pursuant 
to section 218(c)(8)(B) of the Social Security Act to reflect changes in 
wages in the economy. We will publish this adjustment of the $1000 base 
amount in the Federal Register on or before November 1 preceding the 
year for which the adjustment is made.
    (v) As an employee in a position compensated solely on a fee basis 
which is treated, pursuant to section 211(c)(2)(E) of the Act, as a 
trade or business for purposes of inclusion of the fees in net earnings 
from self-employment; or
    (4) The work is covered under Sec. 404.1021 or Sec. 404.1022.
    (b) Medicare qualified government employment. Notwithstanding the 
provisions of paragraph (a) of this section, your work may be covered as 
Medicare qualified government employment (see Sec. 404.1018b(c) of this 
subpart).
    (c) Covered transportation service--(1) Work for a public 
transportation system. If you work for a public transportation system of 
a State or political subdivision of a State, your work may be covered 
transportation service if all or part of the system was acquired from 
private ownership. You must work as an employee of the State or 
political subdivision in connection with its operation of a public 
transportation system for your work to be covered transportation 
service. This paragraph sets out additional conditions that must be met 
for your work to be covered transportation service. If you work for a 
public transportation system but your work is not covered transportation 
service, your work may be covered for social security purposes under an 
agreement under section 218 of the Act (see subpart M of this part).
    (2) Transportation system acquired in whole or in part after 1936 
and before 1951. All work after 1950 for a public transportation system 
is covered transportation service if--
    (i) Any part of the transportation system was acquired from private 
ownership after 1936 and before 1951; and
    (ii) No general retirement system covering substantially all work in 
connection with the operation of the transportation system and 
guaranteed by the State constitution was in effect on December 31, 1950.
    (3) Transportation system operated on December 31, 1950, no part of 
which was acquired after 1936 and before 1951. If no part of a 
transportation system operated by a State or political subdivision on 
December 31, 1950, was acquired from private ownership after 1936 and 
before 1951, work for that public transportation system is not covered 
transportation service unless performed under conditions described in 
paragraph (b)(4) of this section.

[[Page 263]]

    (4) Addition after 1950 to existing transportation system. Work for 
a public transportation system part of which was acquired from private 
ownership after 1950 as an addition to an existing transportation system 
is covered transportation service beginning with the first day of the 
third calendar quarter following the calendar quarter in which the 
addition was acquired if--
    (i) The work is performed by an employee who--
    (A) Worked in employment in connection with the operation of the 
addition before the addition was acquired by the State or political 
subdivision; and
    (B) Became an employee of the State or political subdivision in 
connection with and at the time of its acquisition of the addition;
    (ii) On that first day, work performed by that employee is--
    (A) Not covered by a general retirement system; or
    (B) Covered by a general retirement system which contains special 
provisions that apply only to employees described in paragraph 
(c)(4)(i)(B) of this section;
    (iii) The existing transportation system was operated by the State 
or political subdivision on December 31, 1950; and
    (iv) Work for the existing transportation system was not covered 
transportation service because--
    (A) No part of the system was acquired from private ownership after 
1936 and before 1951; or
    (B) The general retirement system described in paragraph (c)(2)(ii) 
of this section was in effect on December 31, 1950.
    (5) Transportation system acquired after 1950. All work for a public 
transportation system is covered transportation service if--
    (i) The transportation system was not operated by the State or 
political subdivision before 1951;
    (ii) All or part of the transportation system was first acquired 
from private ownership after 1950; and
    (iii) At the time the State or political subdivision first acquired 
any part of its transportation system from private ownership, it did not 
have a general retirement system covering substantially all work 
performed in connection with the operation of the transportation system.
    (6) Definitions. (i) The term general retirement system means any 
pension, annuity, retirement, or similar fund or system established by a 
State or by a political subdivision of a State for employees of the 
State, the political subdivision, or both. The term does not include a 
fund or system which covers only work performed in positions connected 
with the operation of the public transportation system.
    (ii) A transportation system (or part of a system) is considered to 
have been acquired from private ownership by a State or political 
subdivision if--
    (A) Before the acquisition, work performed by employees in 
connection with the operation of the system (or an acquired part) 
constituted employment under the Act; and
    (B) Some of these employees became employees of the State or 
political subdivision in connection with and at the time of the 
acquisition.
    (iii) The term political subdivision includes an instrumentality of 
a State, of one or more political subdivisions of a State, or of a State 
and one or more of its political subdivisions.

[45 FR 20075, Mar. 27, 1980, as amended at 57 FR 59910, 59914, Dec. 17, 
1992; 61 FR 38366, July 24, 1996]



Sec. 404.1021  Work for the District of Columbia.

    If you work as an employee of the District of Columbia or a wholly 
owned instrumentality of the District of Columbia, your work is covered 
as employment unless--
    (a) Your work is covered by a retirement system established by a law 
of the United States; or
    (b) You are--
    (1) A patient or inmate of a hospital or penal institution and your 
work is for that hospital or institution;
    (2) A student employee (a student nurse, dietitian, or physical or 
occupational therapist, but not a medical or dental intern or resident 
in training) of a District of Columbia hospital, clinic, or medical or 
dental laboratory;

[[Page 264]]

    (3) An employee serving temporarily in case of fire, storm, snow, 
earthquake, flood, or other similar emergency; or
    (4) A member of a board, committee, or council of the District of 
Columbia paid on a per diem, meeting, or other fee basis.
    (c) Medicare qualified government employment. If your work is not 
covered under Social Security, it may be covered as Medicare qualified 
government employment (see Sec. 404.1018b(c) of this subpart).

[45 FR 20075, Mar. 27, 1980, as amended at 57 FR 59914, Dec. 17, 1992]



Sec. 404.1022  American Samoa or Guam.

    (a) Work in American Samoa or Guam. Work in American Samoa or Guam 
for a private employer is covered as employment the same as in the 50 
States. Work done by a resident of the Republic of the Philippines 
working in Guam on a temporary basis as a nonimmigrant alien admitted to 
Guam under section 101(a)(15)(H)(ii) of the Immigration and Nationality 
Act is excluded from coverage regardless of the employer.
    (b) Work for American Samoa or a political subdivision or wholly 
owned instrumentality of American Samoa. Work as an officer or employee 
(including a member of the legislature) of the government of American 
Samoa, its political subdivisions, or any wholly owned instrumentality 
of any one or more of these, is covered as employment (unless the work 
is covered by a retirement system established by a law of the United 
States). The officer or employee is not considered as an employee of the 
United States, an agency of the United States, or an instrumentality of 
the United States, for purposes of title II of the Act. We consider any 
pay for this work to have been paid by the government of American Samoa, 
or the political subdivision or the wholly owned instrumentality of 
American Samoa.
    (c) Work for Guam or a political subdivision or wholly owned 
instrumentality of Guam. Work as an officer or employee (including a 
member of the legislature) of the government of Guam, its political 
subdivisions, or any wholly owned instrumentality of any one or more of 
these, is excluded from coverage as employment. However, the exclusion 
does not apply to employees classified as temporary or intermittent 
unless the work is--
    (1) Covered by a retirement system established by a law of Guam;
    (2) Done by an elected official;
    (3) Done by a member of the legislature; or
    (4) Done in a hospital or penal institution by a patient or inmate 
of the hospital or penal institution.
    (d) Medicare qualified government employment. If your work is not 
covered under Social Security, it may be covered as Medicare qualified 
government employment (see Sec. 404.1018b(c) of this subpart).

[45 FR 20075, Mar. 27, 1980, as amended at 57 FR 59914, Dec. 17, 1992]



Sec. 404.1023  Ministers of churches and members of religious orders.

    (a) General. If you are a duly ordained, commissioned, or licensed 
minister of a church, the work you do in the exercise of your ministry 
is excluded from employment. However, it is treated as self-employment 
for social security purposes. If you are a member of a religious order 
who has not taken a vow of poverty, the same rule applies to the work 
you do in the exercise of your duties required by that order. If you are 
a member of a religious order who has taken a vow of poverty, the work 
you do in the exercise of duties required by the order (the work may be 
done for the order or for another employer) is covered as employment 
only if the order or autonomous subdivision of the order to which you 
belong has filed an effective election of coverage. The election is made 
under section 3121(r) of the Code. For the rules on self-employment 
coverage of ministers and members of religious orders who have not taken 
vows of poverty, see Sec. 404.1071.
    (b) What is an ordained, commissioned, or licensed minister. The 
terms ordained, commissioned, or licensed describe the procedures 
followed by recognized churches or church denominations to vest 
ministerial status upon qualified individuals. If a church or church 
denomination has an ordination procedure, the commissioning or licensing 
of

[[Page 265]]

a person as a minister may not make him or her a commissioned or 
licensed minister for purposes of this subpart. Where there is an 
ordination procedure, the commissioning or licensing must be recognized 
as having the same effect as ordination and the person must be fully 
qualified to exercise all of the ecclesiastical duties of the church or 
church denomination.
    (c) When is work by a minister in the exercise of the ministry. (1) 
A minister is working in the exercise of the ministry when he or she 
is--
    (i) Ministering sacerdotal functions or conducting religious worship 
(other than as described in paragraph (d)(2) of this section); or
    (ii) Working in the control, conduct, and maintenance of a religious 
organization (including an integral agency of a religious organization) 
under the authority of a religious body constituting a church or church 
denomination.
    (2) The following rules are used to decide whether a minister's work 
is in the exercise of the ministry:
    (i) Whether the work is the conduct of religious worship or the 
ministration of sacerdotal functions depends on the tenets and practices 
of the religious body which is his or her church or church denomination.
    (ii) Work in the control, conduct, and maintenance relates to 
directing, managing, or promoting the activities of the religious 
organization. Any religious organization is considered to be under the 
authority of a religious body constituting a church or church 
denomination if it is organized and dedicated to carrying out the tenets 
and principles of a faith according to either the requirements or 
sanctions governing the creation of institutions of the faith.

The term religious organization has the same meaning and application as 
is given to the term for income tax purposes under the Code.
    (iii) If a minister is working in the conduct of religious worship 
or the ministration of sacerdotal functions, the work is in the exercise 
of the ministry whether or not it is performed for a religious 
organization. (See paragraph (d)(2) of this section for an exception to 
this rule.)
    Example  M, a duly ordained minister, is engaged to work as chaplain 
at a privately owned university. M spends his entire time working as 
chaplain. This includes the conduct of religious worship, offering 
spiritual counsel to the university students, and teaching a class in 
religion. M is working in the exercise of the ministry.
    (iv) If a minister is working for an organization which is operated 
as an integral agency of a religious organization under the authority of 
a religious body constituting a church or church denomination, all work 
by the minister in the conduct of religious worship, in the ministration 
of sacerdotal functions, or in the control, conduct, and maintenance of 
the organization is in the exercise of the ministry.
    Example  M, a duly ordained minister, is engaged by the N Religious 
Board as director of one of its departments. M performs no other 
service. The N Religious Board is an integral agency of O, a religious 
organization operating under the authority of a religious body 
constituting a church denomination. M is working in the exercise of the 
ministry.
    (v) If a minister, under an assignment or designation by a religious 
body constituting a church, works for an organization which is neither a 
religious organization nor operated as an integral agency of a religious 
organization, all service performed by him or her, even though the 
service may not involve the conduct of religious worship or the 
ministration of sacerdotal functions, is in the exercise of the 
ministry.
    Example.  M, a duly ordained minister, is assigned by X, the 
religious body constituting M's church, to perform advisory service to Y 
company in connection with the publication of a book dealing with the 
history of M's church denomination. Y is neither a religious 
organization nor operated as an integral agency of a religious 
organization. M performs no other service for X or Y. M is working in 
the exercise of the ministry.
    (vi) If a minister is working for an organization which is neither a 
religious organization nor operated as an integral agency of a religious 
organization and the work is not performed under an assignment or 
designation by ecclesiastical superiors, then only the work done by the 
minister in the conduct of religious worship or the ministration of 
sacerdotal functions is in the exercise of the ministry. (See paragraph 
(d)(2) of this section for an exception to this rule.)

[[Page 266]]

    Example.  M, a duly ordained minister, is engaged by N University to 
teach history and mathematics. M does no other work for N although from 
time to time M performs marriages and conducts funerals for relatives 
and friends. N University is neither a religious organization nor 
operated as an integral agency of a religious organization. M is not 
working for N under an assignment by his ecclesiastical superiors. The 
work performed by M for N University is not in the exercise of the 
ministry. However, service performed by M in performing marriages and 
conducting funerals is in the exercise of the ministry.
    (d) When is work by a minister not in the exercise of the ministry. 
(1) Work performed by a duly ordained, commissioned, or licensed 
minister of a church which is not in the exercise of the ministry is not 
excluded from employment.
    (2) Work performed by a duly ordained, commissioned, or licensed 
minister of a church as an employee of the United States, or a State, 
territory, or possession of the United States, or the District of 
Columbia, or a foreign government, or a political subdivision of any of 
these, is not in the exercise of the ministry, even though the work may 
involve the ministration of sacerdotal functions or the conduct of 
religious worship. For example, we consider service performed as a 
chaplain in the Armed Forces of the United States to be work performed 
by a commissioned officer and not by a minister in the exercise of the 
ministry. Also, service performed by an employee of a State as a 
chaplain in a State prison is considered to be performed by a civil 
servant of the State and not by a minister in the exercise of the 
ministry.
    (e) Work in the exercise of duties required by a religious order. 
Work performed by a member of a religious order in the exercise of 
duties required by the order includes all duties required of the member 
of the order. The nature or extent of the work is immaterial so long as 
it is service which the member is directed or required to perform by the 
member's ecclesiastical superiors.



Sec. 404.1024  Election of coverage by religious orders.

    A religious order whose members are required to take a vow of 
poverty, or any autonomous subdivision of that religious order, may 
elect to have social security coverage extended to the work performed by 
its members in the exercise of duties required by that order or 
subdivision. The rules on the election of coverage by these religious 
orders are described in 26 CFR 31.3121(r). The rules on determining the 
wages of members of religious orders for which an election of coverage 
has been made are described in Sec. 404.1046.



Sec. 404.1025  Work for religious, charitable, educational, or certain other organizations exempt from income tax.

    (a) After 1983. Work done after 1983 by an employee in the employ of 
a religious, charitable, educational, or other organization described in 
section 501(c)(3) of the Code which is exempt from income tax under 
section 501(a) of the Code is covered as employment unless the work is 
for a church or church-controlled organization that has elected to have 
services performed by its employees excluded (see Sec. 404.1026). (See 
Sec. 404.1059(b) for special wage rule.)
    (b) Before 1984. Work described in paragraph (a) of this section 
which was done before 1984 is excluded from employment. However, the 
exclusion does not apply to work done during the period for which a form 
SS-15, Certificate Waiving Exemption From Taxes Under the Federal 
Insurance Contributions Act, was filed (or was deemed to have been 
filed) with the Internal Revenue Service.

[50 FR 36573, Sept. 9, 1985]



Sec. 404.1026  Work for a church or qualified church-controlled organization.

    (a) General. If you work for a church or qualified church-controlled 
organization, as described in this section, your employer may elect to 
have your services excluded from employment. You would then be 
considered to be self-employed and special conditions would apply to 
you. See Sec. 404.1068(f) for those special conditions. The employer's 
election of the exclusion must be made with the Internal Revenue Service 
in accordance with Internal Revenue Service procedures and must state 
that the church or church-controlled organization is opposed for 
religious reasons to the payment of Social Security employment taxes. 
The exclusion

[[Page 267]]

applies to current and future employees. If you work in an unrelated 
trade or business (within the meaning of section 513(a) of the Code) of 
the church or church-controlled organization, the exclusion does not 
apply to your services.
    (b) What is a church. For purposes of this section the term church 
means a church, a convention or association of churches, or an 
elementary or secondary school which is controlled, operated, or 
principally supported by a church or by a convention or association of 
churches.
    (c) What is a qualified church-controlled organization. For purposes 
of this section the term qualified church-controlled organization means 
any church-controlled organization exempt from income tax under section 
501(c)(3) of the Code but does not include an organization which:
    (1) Offers goods, services, or facilities for sale to the general 
public, other than on an incidental basis, or for other than a nominal 
charge which is substantially less than the cost of providing such 
goods, services, or facilities; and
    (2) Normally receives more than 25 percent of its support from 
either governmental sources or receipts from admissions, sales of 
merchandise, performance of services or furnishing of facilities other 
than in an unrelated trade or business, or both.

[50 FR 36573, Sept. 9, 1985, as amended at 55 FR 7309, Mar. 1, 1990]



Sec. 404.1027  Railroad work.

    We exclude from employment any work you do as an employee or 
employee representative as described in the Railroad Retirement Tax Act. 
However, railroad compensation can be counted for social security 
purposes under the conditions described in subpart O of this part.



Sec. 404.1028  Student working for a school, college, or university.

    (a) For purposes of this section, a school, college, or university 
has its usual accepted meaning. It does not, however, include any 
school, college, or university that is an instrumentality or integral 
part of a State or a political subdivision of a State for which work can 
only be covered by an agreement under section 218 of the Act. (See 
subpart M of this part.)
    (b) If you are a student, any work you do as an employee of a 
school, college or university is excluded from employment, if you are 
enrolled in and regularly attending classes at that school, college, or 
university. The exclusion also applies to work you do for a private 
nonprofit auxiliary organization of the school, college, or university 
if it is organized and operated exclusively for the benefit of, to 
perform functions of, or to carry out the purposes of the school, 
college, or university. The organization must be operated, supervised, 
or controlled by, or in connection with, the school, college, or 
university.
    (c) Whether you are a student for purposes of this section depends 
on your relationship with your employer. If your main purpose is 
pursuing a course of study rather than earning a livelihood, we consider 
you to be a student and your work is not considered employment.



Sec. 404.1029  Student nurses.

    If you are a student nurse, your work for a hospital or nurses 
training school is excluded from employment if you are enrolled and 
regularly attending classes in a nurses training school which is 
chartered or approved under State law.



Sec. 404.1030  Delivery and distribution or sale of newspapers, shopping news, and magazines.

    (a) If you are under age 18. Work you do before you reach age 18 
delivering or distributing newspapers or shopping news is excluded from 
employment. This does not include delivery or distribution to some point 
for further delivery or distribution by someone else. If you make house-
to-house delivery or sale of newspapers or shopping news (including 
handbills and similar kinds of advertising material), your work is not 
covered while you are under age 18. Related work such as assembling 
newspapers is also excluded.
    (b) If you are any age. No matter how old you are, work you do in 
connection with and at the time of the sale of newspapers or magazines 
to consumers

[[Page 268]]

is excluded from employment if there is an arrangement under which--
    (1) You are to sell the newspapers or magazines at a fixed price; 
and
    (2) Your pay is the difference between the fixed selling price and 
the amount you are charged for the newspapers or magazines (whether or 
not you are guaranteed a minimum amount of compensation or receive 
credit for unsold newspapers or magazines).
    (c) If you are age 18 or older. If you have attained age 18, you are 
self-employed if you work under the arrangement described in paragraph 
(b) of this section. See Sec. 404.1068(b).



Sec. 404.1031  Fishing.

    (a) If you work on a boat engaged in catching fish or other forms of 
aquatic animal life, your work is not employment if you have an 
arrangement with the owner or operator of the boat which provides for 
all of the following:
    (1) You do not receive any cash pay (other than as provided in 
paragraph (a)(2) of this section).
    (2) You receive a share of the catch or a share of the proceeds from 
the sale of the catch.
    (3) The amount of your share depends on the size of the catch.
    (4) The operating crew of the boat (or each boat from which you 
receive a share if the fishing operation involves more than one boat) is 
normally made up of fewer than 10 individuals.
    (b) Work excluded from employment under this section is considered 
to be self-employment (Sec. 404.1068(e)).



Sec. 404.1032  Work for a foreign government.

    If you work as an employee of a foreign government in any capacity, 
your work is excluded from employment. If you are a citizen of the 
United States and work in the United States as an employee of a foreign 
government, you are considered to be self-employed (Sec. 404.1068(d)).



Sec. 404.1033  Work for a wholly owned instrumentality of a foreign government.

    (a) If you work as an employee of an instrumentality of a foreign 
government, your work is excluded from employment if--
    (1) The instrumentality is wholly owned by the foreign government;
    (2) Your work is similar to work performed in foreign countries by 
employees of the United States Government or its instrumentalities; and
    (3) The Secretary of State certifies to the Secretary of the 
Treasury that the foreign government grants an equivalent exemption for 
services performed in the foreign country by employees of the United 
States Government or its instrumentalities.
    (b) Your work will not be excluded under this section if any of the 
conditions in paragraph (a) of this section are not met.
    (c) If you are a citizen of the United States and work in the United 
States as an employee of an instrumentality of a foreign government and 
the conditions in paragraph (a) of this section are met, you are 
considered to be self-employed (Sec. 404.1068(d)).



Sec. 404.1034  Work for an international organization.

    (a) If you work as an employee of an international organization 
entitled to enjoy privileges, exemptions, and immunities as an 
international organization under the International Organizations 
Immunities Act (59 Stat. 669), your work is excluded from employment 
except as described in paragraphs (b) and (c) of this section. The 
organization must meet the following conditions:
    (1) It must be a public international organization in which the 
United States participates under a treaty or authority of an act of 
Congress authorizing, or making an appropriation for, participation.
    (2) It must be designated by executive order to be entitled to enjoy 
the privileges, exemptions, and immunities provided in the International 
Organizations Immunities Act.
    (3) The designation must be in effect, and all conditions and 
limitations in the designation must be met.
    (b) Your work will not be excluded under this section if any of the 
conditions in paragraph (a) of this section are not met.
    (c) Your work performed after December 31, 1994 will not be excluded

[[Page 269]]

under this section if you perform service in the employ of an 
international organization pursuant to a transfer from a Federal agency 
under section 3582 of title 5 of the United States Code and
    (i) Immediately before such transfer you performed service with a 
Federal agency which was covered as employment; and
    (ii) You would be entitled, upon separation from the international 
organization and proper application, to reemployment with the Federal 
agency under section 3582.
    (d) If you are a citizen of the United States and work in the United 
States as an employee of an international organization that meets the 
conditions in paragraph (a) of this section and you are not subject to 
coverage based on paragraph (c) of this section, you are considered to 
be self-employed (Sec. 404.1068(d)).

[45 FR 20075, Mar. 27, 1980, as amended at 61 FR 38366, July 24, 1996]



Sec. 404.1035  Work for a communist organization.

    If you work as an employee of an organization which is registered, 
or which is required by a final order of the Subversive Activities 
Control Board to register under the Internal Security Act of 1950 as a 
communist action, communist-front, or communist-infiltrated 
organization, your work is excluded from employment. The exclusion is 
effective with the calendar year in which the organization is registered 
or the final order is in effect.



Sec. 404.1036  Certain nonresident aliens.

    (a) Foreign students. (1) Foreign students (nonimmigrant aliens) may 
be temporarily in the United States under subparagraph (F) of section 
101(a)(15) of the Immigration and Nationality Act to attend a school or 
other recognized place of study approved by the Attorney General. On-
campus work or work under permission granted by the Immigration and 
Naturalization Service which is done by these students is excluded from 
employment. Other work done by these foreign students is not excluded 
from employment under this section.
    (2) Foreign students (nonimmigrant aliens) may be temporarily in the 
United States under subparagraph (M) of section 101(a)(15) of the 
Immigration and Nationality Act to pursue a vocational or nonacademic 
technical education approved by the Attorney General. Work done by these 
students to carry out the purpose for which they were admitted is 
excluded from employment. Other work done by these foreign students is 
not excluded from employment under this section.
    (b) Exchange visitors. (1) Exchange visitors (nonimmigrant aliens) 
may be temporarily in the United States under subparagraph (J) of 
section 101(a)(15) of the Immigration and Nationality Act to participate 
in exchange visitor programs designated by the Director of the United 
States Information Agency. Work done by these exchange visitors to carry 
out the purpose for which they were admitted and for which permission 
has been granted by the sponsor, is excluded from employment. Other work 
done by these exchange visitors is not excluded from employment under 
this section.
    (2) Exchange visitors (nonimmigrant aliens) may be temporarily in 
the United States under subparagraph (Q) of section 101(a)(15) of the 
Immigration and Nationality Act to participate in an international 
cultural exchange program approved by the Attorney General. Effective 
October 1, 1994, work done by these exchange visitors to carry out the 
purpose for which they were admitted is excluded from employment. Other 
work done by these exchange visitors is not excluded from employment 
under this section.
    (c) Spouse and children. Work done by a foreign student's or 
exchange visitor's alien spouse or minor child who is also temporarily 
in the United States under subparagraph (F), (J), (M), or (Q) of section 
101(a)(15) of the Immigration and Nationality Act is not excluded from 
employment under this section unless that spouse or child and the work 
that is done meets the conditions of paragraph (a) or (b) of this 
section.

[61 FR 38366, July 24, 1996]

[[Page 270]]



Sec. 404.1037  Work on or in connection with a non-American vessel or aircraft.

    If you work as an employee within the United States on or in 
connection with (as explained in Sec. 404.1004(b)(8)) a vessel or 
aircraft that is not an American vessel (as defined in 
Sec. 404.1004(b)(3)) or American aircraft (as defined in 
Sec. 404.1004(b)(2)), your work is excluded from employment if--
    (a) You are not a citizen of the United States or your employer is 
not an American employer (as defined in Sec. 404.1004(b)(1)); and
    (b) You are employed on and in connection with (as explained in 
Sec. 404.1004(b)(7)) the vessel or aircraft when outside the United 
States.



Sec. 404.1038  Domestic employees under age 18.

    Domestic services you perform in a private home of your employer are 
excluded from employment, regardless of the amount earned, in any year 
in which you are under age 18 if domestic service is not your principal 
occupation. The exclusion applies to the entire year if you are under 
age 18 in any part of the year. See Sec. 404.1057.

[61 FR 38366, July 24, 1996]

      Exemption From Social Security By Reason of Religious Belief



Sec. 404.1039  Employers (including partnerships) and employees who are both members of certain religious groups opposed to insurance.

    (a) You and your employer (or, if the employer is a partnership, 
each of its partners) may file applications with the Internal Revenue 
Service for exemption from your respective shares of the Federal 
Insurance Contributions Act taxes on your wages paid by that employer if 
you and your employer (or, if the employer is a partnership, each of its 
partners)--
    (1) Are members of a recognized religious sect or division of the 
sect; and
    (2) Adhere to the tenets or teachings of the sect or division of the 
sect and for that reason are conscientiously opposed to receiving 
benefits from any private or public insurance that--
    (i) Makes payment in the event of death, disability, old-age, or 
retirement; or
    (ii) Makes payment for the cost of, or provides services for, 
medical care including the benefits of any insurance system established 
by the Act.
    (b) Both your application and your employer's application (or, if 
your employer is a partnership, each partner's application) must be 
filed with and approved by the Internal Revenue Service pursuant to 
section 3127 of the Internal Revenue Code. An application must contain 
or be accompanied by the applicant's waiver of all benefits and payments 
under title II and part A of title XVIII of the Act. See Sec. 404.305 
for the effect of the filing of the waiver and the granting of the 
exemption.
    (c) Regardless of whether the applicant meets all these conditions, 
the application will not be approved unless we find that--
    (1) The sect or division of the sect has established tenets or 
teachings which cause the applicant to be conscientiously opposed to the 
types of insurance benefits described in paragraph (a)(2) of this 
section; and
    (2) For a substantial period of time it has been the practice for 
members of the sect or division of the sect to make provision for their 
dependent members that is reasonable in view of their general level of 
living; and
    (3) The sect or division of the sect has been in existence 
continuously since December 31, 1950.
    (d) An application for exemption will be approved by the Internal 
Revenue Service only if no benefit or payment under title II or part A 
of title XVIII of the Act became payable (or, but for section 203 or 
section 222(b) of the Act, would have become payable) to the applicant 
at or before the time of the filing of the application for exemption.
    (e) The tax exemption ceases to be effective with respect to wages 
paid beginning with the calendar quarter in which either the employer 
(or if the employer is a partnership, any of its partners) or the 
employee involved does not meet the requirements of paragraph (a) of 
this section or the religious sect or division of the sect is

[[Page 271]]

found by us to no longer meet the requirements of paragraph (c) of this 
section. If the tax exemption ceases to be effective, the waiver of the 
right to receive Social Security and Medicare Part A benefits will also 
no longer be effective. Benefits may be payable based upon the wages of 
the individual, whose exempt status was terminated, for and after the 
calendar year following the calendar year in which the event occurred 
upon which the cessation of the exemption is based. Benefits may be 
payable based upon the self-employment income of the individual whose 
exempt status was terminated for and after the taxable year in which the 
event occurred upon which the cessation of the exemption is based.

[58 FR 64889, Dec. 10, 1993]

                                  Wages



Sec. 404.1041  Wages.

    (a) The term wages means remuneration paid to you as an employee for 
employment unless specifically excluded. Wages are counted in 
determining your entitlement to retirement, survivors', and disability 
insurance benefits.
    (b) If you are paid wages, it is not important what they are called. 
Salaries, fees, bonuses and commissions on sales or on insurance 
premiums are wages if they are remuneration paid for employment.
    (c) The way in which you are paid is unimportant. Wages may be paid 
on the basis of piecework or a percentage of the profits. Wages may be 
paid on an hourly, daily, weekly, monthly, or yearly basis. (See 
Sec. 404.1056 for special rules for agricultural labor.)
    (d) Your wages can be in any form. You can be paid in cash or 
something other than cash, for example, in goods or clothing. (See 
paragraphs (e) and (f) of this section for kinds of employment where 
cash payments alone are considered wages and Sec. 404.1043(b) concerning 
the value of meals and lodging as wages.) If your employer pays you cash 
for your meals and lodging on a regular basis as part of your 
employment, these payments may be considered wages. Payments other than 
cash may be counted as wages on the basis of the fair value of the items 
when paid.
    (e) In certain kinds of employment, cash payments alone count as 
wages. These types of employment are agricultural labor, domestic 
services, and services not in the course of the employer's trade or 
business.
    (f) To count as wages, payments for services performed by home 
workers who are employees as described in Sec. 404.1008(d) must be in 
cash and must amount to $100 or more in a calendar year. Once this cash 
pay test is met, all remuneration paid, whether in cash or kind, is also 
wages.

[45 FR 20075, Mar. 27, 1980, as amended at 55 FR 7309, Mar. 1, 1990]



Sec. 404.1042  Wages when paid and received.

    (a) In general. Wages are received by an employee at the time they 
are paid by the employer to the employee. Wages are paid by an employer 
at the time that they are actually or constructively paid unless they 
are deemed to be paid later (as described in paragraph (c)(3) of this 
section).
    (b) Constructive payment. Wages are constructively paid when they 
are credited to the account of, or set aside for, an employee so that 
they may be drawn upon by the employee at any time although not then 
actually received. To be a payment--
    (1) The wages must be credited to or set aside for the employee and 
must be made available without restriction so that they may be drawn 
upon at any time; or
    (2) The employer must intend to pay or to set aside or credit, and 
have the ability to pay wages when due to the employee, and failure of 
the employer to credit or set aside the wages is due to clerical error 
or mistake in the mechanics of payment, and because of the clerical 
error or mistake the wages are not actually available at that time.
    (c) Deemed payment. (1) The first $100 of cash paid, either actually 
or constructively, by an employer to an employee in a calendar year is 
considered paid at the time that the amount of the cash payment totals 
$100 for the year in the case of pay for--
    (i) Work not in the course of the employer's trade or business (non-
business work);

[[Page 272]]

    (ii) Work by certain home workers; and
    (iii) Work for an organization exempt from income tax under section 
501 of the Code.
    (2) We also apply this rule to domestic work in a private home of 
the employer, except see Sec. 404.1057(a)(1) for the applicable dollar 
amount.
    (3) Cash of less than $150 that an employer pays to an employee in a 
calendar year, either actually or constructively, for agricultural labor 
is considered paid at the earliest of--
    (i) The time in the calendar year that the employee's pay totals 
$150; or
    (ii) The 20th day of the calendar year on which the employee works 
for cash pay computed on a time basis.
    (4) If an employer pays cash to an employee for two or more of the 
kinds of work referred to in paragraph (c)(1) of this section, we apply 
the provisions of this paragraph to the pay for each kind of work.
    (d) Employee tax deductions. We consider employee tax deductions 
under section 3101 of the Code to be part of the employee's wages and 
consider them to be paid at the time of the deduction. We consider other 
deductions from wages to be wages paid at the time of the deduction. It 
is immaterial that the deductions are required or permitted by an act of 
Congress or the law of any State.
    (e) Tips. (1) Tips received by an employee in the course of 
employment, that are considered to be wages, are deemed to be paid at 
the time the employee reports the tips to the employer in a written 
statement as provided under section 6053(a) of the Code. Tips that are 
not reported are deemed to be paid to the employee at the time they are 
received by the employee.
    (2) We consider tips to be received in the course of employment 
whether they are received by the employee from the employer or from 
another person. Only tips employees receive and keep for themselves are 
considered to be the employees' pay. If employees split tips, each 
employee who receives part of the tip receives tips in the course of 
employment.
    (f) Payments under nonqualified deferred compensation plans. Amounts 
that an employee is entitled to receive under nonqualified deferred 
compensation plans (plans that do not qualify for special tax treatment 
under the Code) are creditable as wages for Social Security purposes at 
the later of the following times:
    (1) When the services are performed; or
    (2) When there is no longer a substantial risk of forfeiture (as 
defined in section 83 of the Code) of the employee's rights to the 
deferred compensation.

Any amounts taken into account as wages by this paragraph (and the 
income attributable thereto) will not thereafter be treated as wages for 
Social Security purposes.

[45 FR 20075, Mar. 27, 1980, as amended at 55 FR 7309, Mar. 1, 1990; 61 
FR 38366, July 24, 1996]



Sec. 404.1043  Facilities or privileges--meals and lodging.

    (a) Excluding the value of employer provided facilities or 
privileges from employee gross income prior to January 1, 1985. (1) 
Generally, the facilities or privileges that an employer furnished an 
employee prior to January 1, 1985 are not wages if the facilities or 
privileges--
    (i) Were of relatively small value; and
    (ii) Were offered or furnished by the employer merely as a means of 
promoting the health, good will, contentment, or efficiency of the 
employees.
    (2) The term facilities or privileges for the period prior to 
January 1, 1985 is intended to include such items as entertainment, 
medical services, and so-called courtesy discounts on purchases.
    (b) Meals and lodging. The value of the meals and lodging furnished 
to an employee by an employer for reasons of the employer's convenience 
is not wages if--
    (1) The meals are provided at the employer's place of business; and
    (2) The employee, in the case of lodging, is required to accept 
lodging on the employer's business premises as a condition of 
employment.

[52 FR 29662, Aug. 11, 1987]



Sec. 404.1044  Vacation pay.

    We consider your salary while on vacation, or a vacation allowance 
paid by your employer, to be wages.

[[Page 273]]



Sec. 404.1045  Employee expenses.

    Amounts that your employer pays you specifically--either as advances 
or reimbursements--for traveling or for other ordinary and necessary 
expenses incurred, or reasonably expected to be incurred, in your 
employer's business are not wages. The employer must identify these 
travel and other expenses either by making a separate payment or by 
specifically stating the separate amounts if both wages and expense 
allowances are combined in a single payment.



Sec. 404.1046  Pay for work by certain members of religious orders.

    (a) If you are a member of a religious order who has taken a vow of 
poverty (Sec. 404.1023), and the order has elected Social Security 
coverage under section 3121(r) of the Code, your wages are figured in a 
special way. Your wages, for Social Security purposes, are the fair 
market value of any board, lodging, clothing, and other items of value 
furnished to you by the order, or furnished to the order on your behalf 
by another organization or person under an agreement with the order. See 
paragraph (b) of this section if you perform services for a third party. 
The order must report at least $100 a month for each active member. If 
the fair market value of items furnished to all members of a religious 
order does not vary significantly, the order may consider all members to 
have a uniform wage.
    (b) If you perform services for a third party, the following rules 
apply:
    (1) If you perform services for another agency of the supervising 
church or an associated institution, any amounts paid based on such 
services, whether paid directly to you or to the order, do not count on 
wages. Only wages figured under (a) above, are counted.
    (2) If you perform services in a secular setting as an employee of a 
third party not affiliated or associated with the supervising church or 
an associated institution, any amounts paid based on such services, 
whether paid directly to you or to the order, count as wages paid to you 
by the third party. These wages are in addition to any wages counted 
under paragraph (a) of this section.

[55 FR 7309, Mar. 1, 1990; 55 FR 17530, Apr. 25, 1990]



Sec. 404.1047  Annual wage limitation.

    Payments made by an employer to you as an employee in a calendar 
year that are more than the annual wage limitation are not wages. The 
annual wage limitation is:

------------------------------------------------------------------------
                                                                 Wage   
                       Calendar year                          limitation
------------------------------------------------------------------------
1951-54....................................................       $3,600
1955-58....................................................        4,200
1959-65....................................................        4,800
1966-67....................................................        6,600
1968-71....................................................        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
1982.......................................................       32,400
1983.......................................................       35,700
1984.......................................................       37,800
1985.......................................................       39,600
1986.......................................................       42,000
1987.......................................................       43,800
1988.......................................................       45,000
1989.......................................................       48,000
1990.......................................................       51,300
1991.......................................................       53,400
1992.......................................................       55,500
------------------------------------------------------------------------


[52 FR 8249, Mar. 17, 1987, as amended at 57 FR 44098, Sept 24, 1992]



Sec. 404.1048  Contribution and benefit base after 1992.

    (a) General. The contribution and benefit base after 1992 is figured 
under the formula described in paragraph (b) of this section in any 
calendar year in which there is an automatic cost-of-living increase in 
old-age, survivors, and disability insurance benefits. For purposes of 
this section, the calendar year in which the contribution and benefit 
base is figured is called the determination year. The base figured in 
the determination year applies to wages paid after (and taxable years 
beginning after) the determination year.
    (b) Formula for figuring the contribution and benefit base. For 
wages paid after (and taxable years beginning

[[Page 274]]

after) the determination year, the contribution and benefit base is the 
larger of--
    (1) The contribution and benefit base in effect for the 
determination year; or
    (2) The amount determined by--
    (i) Multiplying the contribution and benefit base in effect for the 
determination year by the ratio of--
    (A) The average of the total wages (as described in paragraph (c) of 
this section) reported to the Secretary of the Treasury for the calendar 
year before the determination year to
    (B) The average of the total wages reported to the Secretary of the 
Treasury for the calendar year before the most recent calendar year in 
which an increase in the contribution and benefit base was enacted or a 
determination under this section resulting in an increase of the base 
was made; and
    (ii) Rounding the result of the multiplication, if not a multiple of 
$300, to--
    (A) The nearest multiple of $300; or
    (B) The next higher multiple of $300 if the result is a multiple of 
$150.
    (c) Average of the total wages. The average of the total wages means 
the amount equal to all remuneration reported as wages on Form W-2 to 
the Internal Revenue Service for all employees for income tax purposes 
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. The reported remuneration and deferred 
compensation contributions include earnings from work not covered under 
social security and earnings from work covered under social security 
that are more than the annual wage limitation described in 
Sec. 404.1047.

[45 FR 20075, Mar. 27, 1980, as amended at 55 FR 7309, Mar. 1, 1990; 57 
FR 1382, Jan. 14, 1992]



Sec. 404.1049  Payments under an employer plan or system.

    (a) Payments to, or on behalf of, you or any of your dependents 
under your employer's plan or system are excluded from wages if made 
because of your or your dependents'--
    (1) Medical or hospitalization expenses connected with sickness or 
accident disability; or
    (2) Death, except that the exclusion does not apply to payments for 
group-term life insurance to the extent that the payments are includible 
in the gross income of the employee under the Internal Revenue Code of 
1986, effective with respect to group-term life insurance coverage in 
effect after 1987 for employees whose employment, for the employer (or 
successor of that employer) providing the insurance coverage, does not 
end prior to 1989. Such payments are wages, however, if they are for 
coverage for an employee who was separated from employment prior to 
January 1, 1989, if the payments are for any period for which the 
employee is reemployed by the employer (or successor of that employer) 
after the date of separation.
    (b) Payments to you or your dependents under your employer's plan at 
or after the termination of your employment relationship because of your 
death or retirement for disability are excluded from wages.
    (c) Payments made after 1983 to you or your dependents under your 
employer's plan at or after the termination of your employment 
relationship because of retirement after reaching an age specified in 
the plan or in a pension plan of the employer are not excluded from 
wages unless--
    (1) The payments are to or from a trust or annuity plan of your 
employer as described in Sec. 404.1052; or
    (2) An agreement to retire was in effect on March 24, 1983, between 
you and your employer and the payments made after 1983 under a 
nonqualified deferred compensation plan (see Sec. 404.1042(f)) are based 
on services performed for your employer before 1984.
    (d) The plan or system established by the employer must provide for 
the employees generally or for a class or classes of employees. The plan 
or system may also provide for these employees' dependents. Payments 
under a plan or system established only for your dependents are not 
excluded from wages. The plan or system established

[[Page 275]]

by the employer can provide for payments on account of one or more of 
the items in paragraphs (a) and (b) of this section.
    (e) For purposes of this section, your dependents include your 
husband or wife, children, and any other members of your immediate 
family.
    (f) It does not make any difference that the benefit payments are 
considered in arriving at the amount of your pay or are required by the 
employment agreement.

[45 FR 20075, Mar. 27, 1980, as amended at 50 FR 1832, Jan. 14, 1985; 55 
FR 7310, Mar. 1, 1990; 55 FR 17530, Apr. 25, 1990]



Sec. 404.1050  Retirement payments.

    Payments made after 1983 to you (including any amount paid by an 
employer for insurance or annuities) on account of your retirement for 
age are not excluded from wages unless--
    (a) The payments are to or from a trust or annuity plan of your 
employer as described in Sec. 404.1052; or
    (b) The payments satisfy the requirements described in 
Sec. 404.1049(c)(2).

[55 FR 7310, Mar. 1, 1990]



Sec. 404.1051  Payments on account of sickness or accident disability, or related medical or hospitalization expenses.

    (a) We do not include as wages any payment that an employer makes to 
you, or on your behalf, on account of your sickness or accident 
disability, or related medical or hospitalization expenses, if the 
payment is made more than 6 consecutive calendar months following the 
last calendar month in which you worked for that employer. Payments made 
during the 6 consecutive months are included as wages.
    (b) The exclusion in paragraph (a) of this section also applies to 
any such payment made by a third party (such as an insurance company). 
However, if you contributed to your employer's sick pay plan, that 
portion of the third party payments attributable to your contribution is 
not wages.
    (c) Payments of medical or hospitalization expenses connected with 
sickness or accident disability are excluded from wages beginning with 
the first payment only if made under a plan or system of your employer 
as explained in Sec. 404.1049(a)(1).
    (d) Payments under a worker's compensation law are not wages.

[55 FR 7310, Mar. 1, 1990]



Sec. 404.1052  Payments from or to certain tax-exempt trusts or payments under or into certain annuity plans.

    (a) We do not include as wages any payment made--
    (1) Into a tax-exempt trust or annuity plan by your employer on 
behalf of you or your beneficiary; or
    (2) From a tax-exempt trust or under an annuity plan to, or on 
behalf of, you or your beneficiary.
    (b) The trust must be exempt from tax under sections 401 and 501(a) 
of the Code, and the annuity plan must be a plan described in section 
403(a) of the Code when payment is made.
    (c) The exclusion does not apply to payments to an employee of the 
trust for work done as an employee of the trust.

[55 FR 7310, Mar. 1, 1990]



Sec. 404.1053  ``Qualified benefits'' under a cafeteria plan.

    We do not include as wages any qualified benefits under a cafeteria 
plan as described in section 125 of the Code if such payment would not 
be treated as wages without regard to such plan and it is reasonable to 
believe that (if section 125 applied for purposes of this section) 
section 125 would not treat any wages as constructively received. This 
includes any qualified benefit made to you, or on your behalf, pursuant 
to a salary reduction agreement between you and your employer. The 
Internal Revenue Service decides whether any plan is a cafeteria plan 
under section 125 of the Code and whether any benefit under the plan is 
a qualified benefit.

[55 FR 7310, Mar. 1, 1990]



Sec. 404.1054  Payments by an employer of employee's tax or employee's contribution under State law.

    (a) We exclude as wages any payment by an employer (described in 
paragraph (b) of this section) that is not deducted from the employee's 
salary (or for which reimbursement is not made by the employee) of 
either--

[[Page 276]]

    (1) The tax imposed by section 3101 of the Code (employee's share of 
Social Security tax); or
    (2) Any payment required from an employee under a State unemployment 
compensation law.
    (b) The payments described in paragraph (a) of this section are not 
included as wages only if they are made by an employer on behalf of an 
employee employed in--
    (1) Domestic service in the private home of the employer; or
    (2) Agricultural labor.

[55 FR 7310, Mar. 1, 1990]



Sec. 404.1055  Payments for agricultural labor.

    (a) When cash payments are not wages. We do not include as wages 
your cash payments in a calendar year after 1987 from an employer for 
agricultural labor (see Sec. 404.1056) if your employer's total 
expenditures for agricultural labor are less than $2500 in that year and 
your employer paid you less than $150 cash remuneration in that year for 
your agricultural labor. If you perform domestic service in the private 
home of an employer on a farm operated for profit, we do not include as 
wages the cash payments for those services if they are less than the 
applicable dollar threshold described in Sec. 404.1057(a).
    (b) Exclusions for noncash payments and payments for seasonal 
agricultural labor. (1) Noncash payments for agricultural labor are not 
wages.
    (2) Your cash payments in a calendar year from an employer for 
agricultural labor are not wages, irrespective of your employer's total 
annual expenditures for agricultural labor, if you are a hand harvest 
laborer (i.e., seasonal agricultural labor), and--
    (i) Your employer paid you less than $150 in that year;
    (ii) You are paid on a piece rate basis in an operation which has 
been, and is customarily and generally recognized in the region of 
employment as paying on a piece rate basis;
    (iii) You commute daily from your permanent residence to the farm on 
which you are so employed; and,
    (iv) You were employed in agriculture less than 13 weeks during the 
previous calendar year.
    Example:  In 1988, A (not a hand harvest laborer) performs 
agricultural labor for X for cash pay of $144 in the year. X's total 
agricultural labor expenditures for 1988 are $2,450. Neither the $150 
cash-pay test nor the $2,500 expenditures test is met. Therefore, X's 
payments to A are not wages.
    (c) When cash-pay is creditable as wages. (1) If you receive cash 
pay from an employer for services which are agricultural labor and for 
services which are not agricultural labor, we count only the amounts 
paid for agricultural labor in determining whether cash payments equal 
or exceed $150. If the amounts paid are less than $150, we count only 
those amounts paid for agricultural labor in determining if the $2500 
expenditure test is met.
    Example:  Employer X operates a store and also operates a farm. 
Employee A, who regularly works in the store, works on X's farm when 
additional help is required for the farm activities. In calendar year 
1988, X pays A $140 cash for agricultural labor performed in that year, 
and $2,260 for work in connection with the operation of the store. 
Additionally, X's total expenditures for agricultural labor in 1988 were 
$2,010. Since the cash payments by X to A in the calendar year 1988 for 
agricultural labor are less than $150, and total agricultural labor 
expenditures were under $2,500, the $140 paid by X to A for agricultural 
labor is not wages. The $2,260 paid for work in the store is wages.
    (2) The amount of cash pay for agricultural labor that is creditable 
to an individual is based on cash paid in a calendar year rather than on 
amounts earned during a calendar year.
    (3) If you receive cash pay for agricultural labor in any one 
calendar year from more than one employer, we apply the $150 cash-pay 
test and $2,500 total expenditures test to each employer.
    (d) Application of the $150 cash-pay and 20-day tests prior to 1988. 
(1) For the time period prior to 1988, we apply either the $150 a year 
cash-pay test or the 20-day test. Cash payments are wages if you receive 
$150 or more from an employer for agricultural labor or under the 20-day 
test if you perform agricultural labor for which cash pay is computed on 
a time basis on 20 or more days during a calendar year. For purposes of 
the 20-day test, the amount of the cash pay is immaterial, and it is 
immaterial whether you also receive payments other than cash or payments 
that are not computed on a time basis.

[[Page 277]]

If cash paid to you for agricultural labor is computed on a time basis, 
the payments are not wages unless they are paid in a calendar year in 
which either the 20-day test or the $150 cash-pay test is met.

[57 FR 59914, Dec. 17, 1992, as amended at 61 FR 38367, July 24, 1996]



Sec. 404.1056  Explanation of agricultural labor.

    (a) What is agricultural labor. (1) If you work on a farm as an 
employee of any person, you are doing agricultural labor if your work 
has to do with--
    (i) Cultivating the soil;
    (ii) Raising, shearing, feeding, caring for, training or managing 
livestock, bees, poultry, fur-bearing animals or wildlife; or
    (iii) Raising or harvesting any other agricultural or horticultural 
commodity.
    (2) If you work on a farm as an employee of any person in connection 
with the production or harvesting of maple sap, the raising or 
harvesting of mushrooms, or the hatching of poultry, you are doing 
agricultural labor. If you work in the processing of maple sap into 
maple syrup or maple sugar you are not doing agricultural labor even 
though you work on a farm. Work in a mushroom cave or poultry hatchery 
is agricultural labor only if the cave or hatchery is operated as part 
of a farm.
    (3) If you work as an employee of the owner, tenant, or other 
operator of a farm, you are doing agricultural labor if most of your 
work is done on a farm and is involved with--
    (i) The operation, management, conservation, improvement, or 
maintenance of the farm or its tools or equipment (this may include work 
by carpenters, painters, mechanics, farm supervisors, irrigation 
engineers, bookkeepers, and other skilled or semiskilled workers); or
    (ii) Salvaging timber or clearing the land of brush and other debris 
left by a hurricane.
    (4) You are doing agricultural labor no matter for whom or where you 
work, if your work involves--
    (i) Cotton ginning;
    (ii) Operating or maintaining ditches, canals, reservoirs, or 
waterways, if they are used only for supplying and storing water for 
farm purposes and are not owned or operated for profit; or
    (iii) Producing or harvesting crude gum (oleoresin) from living 
trees or processing the crude gum into gum spirits of turpentine and gum 
resin (if the processing is done by the original producer).
    (5) Your work as an employee in the handling, planting, drying, 
packing, packaging, processing, freezing, grading, storing, or 
delivering to storage, to a market or to a carrier for transportation to 
market, of any agricultural or horticultural commodity is agricultural 
labor if--
    (i) You work for a farm operator or a group of farm operators (other 
than a cooperative organization);
    (ii) Your work involves the commodity in its raw or unmanufactured 
state; and
    (iii) The operator produced most of the commodity you work with 
during the period for which you are paid, or if you work for a group of 
operators, all of the commodity you work with during the pay period is 
produced by that group.
    (6) If you do nonbusiness work or domestic work in the private home 
of your employer, it is agricultural labor if you do the work on a farm 
operated for profit. However, if you do domestic work in the private 
home of your employer on a farm operated for profit, coverage of your 
earnings for the domestic services is determined in the same manner as 
earnings for any other domestic employee. Whether those earnings are 
covered will be determined based on the threshold described in 
Sec. 404.1057(a) and the other coverage rules applicable to domestic 
service instead of the threshold applicable to other agricultural 
employees. A farm is not operated for profit if the employer primarily 
uses it as a residence or for personal or family recreation or pleasure. 
(See Sec. 404.1057 for an explanation of domestic work and 
Sec. 404.1058(a) for an explanation of nonbusiness work.)
    (7) The term farm operator means an owner, tenant, or other person, 
in possession of and operating a farm.
    (8) Work is not agricultural labor if it is done in the employ of a 
cooperative

[[Page 278]]

organization, which includes corporations, joint-stock companies, and 
associations treated as corporations under the Code. Any unincorporated 
group of operators is considered to be a cooperative organization if 
more than 20 operators are in the group at any time during the calendar 
year in which the work is done.
    (9) Processing work which changes the commodity from its raw or 
natural state is not agricultural labor. An example of this is the 
extraction of juices from fruits or vegetables. However, work in the 
cutting and drying of fruits or vegetables does not change the commodity 
from its raw or natural state and can be agricultural labor.
    (10) The term commodity means a single agricultural or horticultural 
product. For example, all apples are a commodity, while apples and 
oranges are two commodities.
    (11) Work connected with the commerical canning or freezing of a 
commodity is not agricultural labor nor is work done after the delivery 
of the commodity to a terminal market for distribution for consumption.
    (b) What is a farm. For purposes of social security coverage, farm 
includes a stock, dairy, poultry, fruit, fur-bearing animal, or truck 
farm, plantation, ranch, nursery, range or orchard. A farm also includes 
a greenhouse or other similar structure used mostly for raising 
agricultural or horticultural products. A greenhouse or other similar 
structure used mostly for other purposes such as display, storage, 
making wreaths and bouquets is not a farm.

[45 FR 20075, Mar. 27, 1980. Redesignated at 55 FR 7310, Mar. 1, 1990, 
as amended at 61 FR 38367, July 24, 1996]



Sec. 404.1057  Domestic service in the employer's home.

    (a) Payments for domestic service--(1) The applicable dollar 
threshold. We do not include as wages cash payments that an employer 
makes to you in any calendar year for domestic service in the employer's 
private home if the cash pay in that calendar year is less than the 
applicable dollar threshold. The threshold per employer is $1000 in 
calendar year 1995. In calendar years after 1995, this amount will be 
subject to adjustment in $100 increments based on the formula in section 
215(a)(1)(B)(i) of the Act to reflect changes in wages in the economy. 
Non-cash payments for domestic service are not counted as wages.
    (2) How evaluation is made. We apply the applicable dollar threshold 
described in paragraph (a)(1) of this section based on when the payments 
are made to you rather than when the pay is earned. To count toward the 
applicable dollar threshold, payment must be made to you in cash 
(including checks or other forms of money). We apply the applicable 
dollar threshold only to services performed as a domestic employee. If 
an employer pays you for performing other work, the cash pay for the 
nondomestic work does not count toward the applicable dollar threshold 
domestic service pay required for the remuneration to count as wages.
    (3) More than one domestic employer. The applicable dollar threshold 
as explained in paragraph (a)(1) of this section applies to each 
employer when you perform domestic services for more than one employer 
in a calendar year. The wages paid by more than one employer for 
domestic services may not be combined to decide whether you have been 
paid the applicable dollar threshold or more in a calendar year. The 
standard applies to each employee when an employer has two or more 
domestic employees during a calendar year.
    (4) Rounding dollar amounts for reporting. For social security 
purposes, an employer has an option in the way he or she reports cash 
wages paid for domestic service in his or her private home. The employer 
may report the actual wages paid or may round the wages to the nearest 
dollar. For purposes of rounding to the nearest dollar the cents are 
disregarded unless it amounts to one-half dollar or more, in which case 
it will be raised to $1. If an employer uses this method to report a 
cash payment to you for domestic services in his or her private home in 
a calendar year, he or she must use the same method to report payments 
to other employees in that year for similar services.
    (b) What is domestic service. Domestic service is work of a 
household nature

[[Page 279]]

done by you in or about a private home of the employer. A private home 
is a fixed place of residence of a person or family. A separate dwelling 
unit maintained by a person in an apartment house, hotel, or other 
similar establishment may be a private home. If a house is used 
primarily for supplying board or lodging to the public as a business 
enterprise, it is not a private home. In general, services of a 
household nature in or about a private home include services performed 
by cooks, waiters, butlers, housekeepers, governessess, maids, valets, 
baby sitters, janitors, laundresses, furnacemen, caretakers, handymen, 
gardeners, footmen, grooms, and chauffeurs of automobiles for family 
use. Pay for these services does not come under this provision unless 
the services are performed in or about a private home of the employer. 
Pay for services not of a household nature, such as services performed 
as a private secretary, tutor, or librarian, even though performed in 
the employer's home, does not come under this provision.

[45 FR 20075, Mar. 27, 1980; 45 FR 25060, Apr. 14, 1980. Redesignated at 
55 FR 7310, Mar. 1, 1990, as amended at 61 FR 38367, July 24, 1996]



Sec. 404.1058  Special situations.

    (a) Payments for service not in course of employer's trade or 
business (nonbusiness work) and payments to certain home workers--(1) 
The $100 standard. We do not include as wages cash pay of less than $100 
paid to you in a calendar year by an employer for services not in the 
course of the employer's trade or business (nonbusiness work) and for 
services as a home worker as described in Sec. 404.1008(d).
    (2) How evaluation is made. (i) We apply the $100 standard for a 
calendar year based on when the payments are made to you rather than 
when the pay is earned. To count toward the $100 amount, payment must be 
in cash (including checks or other forms of money). The $100 standard 
applies to each employer when you perform services not in the course of 
the employer's trade or business or as a homeworker for two or more 
employers.
    (ii) If the employer has two or more employees, the standard applies 
to each employee. In applying the $100 standard, we disregard cash 
payments for any other type of services you perform for the employer.
    (iii) The noncash payments an employer pays you for services not in 
the course of the employer's trade or business are not wages even if the 
employer has paid you cash wages of $100 or more in the calendar year 
for services of that type.
    (iv) Amounts paid to you as a home worker as described in 
Sec. 404.1008(d) are not wages unless you are paid $100 or more in cash 
in a calendar year. If you meet this test, any noncash payments you 
receive for your services also count as wages.
    (v) Amounts paid to you as a home worker in a common-law employment 
relationship (see Sec. 404.1007) count as wages regardless of amount or 
whether paid in cash or kind.
    (3) Definitions. The term services not in the course of the 
employer's trade or business (also called nonbusiness work) means 
services that do not promote or advance the trade or business of the 
employer. Services performed for a corporation do not come within this 
definition. A homeworker is described in Sec. 404.1008(c).
    (b) Nonprofit, income-tax exempt organizations--(1) The $100 
standard. We do not include as wages payments of less than $100 in a 
calendar year made by an employer that is an organization exempt from 
income tax under section 501 of the Code.
    (2) How evaluation is made. We apply the $100 standard for a 
calendar year based on when the payments are made to you rather than 
when the pay is earned. To figure the $100 amount, both cash and noncash 
payments are counted. The $100 standard applies to each employer where 
you render services for two or more nonprofit, income-tax exempt 
organizations during a calendar year. The $100 standard also applies to 
each of you where a nonprofit, income-tax exempt organization has two or 
more employees. In applying the standard, the tax-exempt status of the 
employer and not the nature or place of your services is controlling.
    (c) Payments to members of the uniformed services--(1) The standard. 
We include as the wages of a member of the uniformed services--

[[Page 280]]

    (i) Basic pay, as explained in paragraph (c)(3) of this section, for 
performing the services described in paragraph (a)(1) of Sec. 404.1019 
of this subpart; or
    (ii) Compensation, as explained in paragraph (c)(4) of this section, 
for performing the services described in paragraph (a)(2) of 
Sec. 404.1019 of this subpart.
    (2) Wages deemed paid. These following provisions apply to members 
of the uniformed services who perform services as described in paragraph 
(a)(1) of Sec. 404.1019 of this subpart.
    (i) After 1977, a member of the uniformed services is considered to 
have been paid additional wages of $100 for each $300 of basic pay paid 
to the individual in a calendar year. The amount of additional wages 
deemed paid cannot be more than $1,200 for any calendar year. No wages 
may be deemed paid for units of basic pay which are less than $300.
    (ii) Before 1978, a member of the uniformed services is considered 
to have been paid additional wages of $300 for each calendar quarter 
after 1956 in which the individual is paid any amount of basic pay.
    (3) Basic pay. Basic pay means the monthly pay prescribed by 37 
U.S.C. 203 (Pay and Allowances for the Uniformed Services) for a member 
of the uniformed services on active duty or on active duty for training.
    (4) Compensation. ``Compensation'' refers to the remuneration 
received for services as a member of a uniformed service, based on 
regulations issued by the Secretary concerned (as defined in 37 U.S.C. 
101(5) under 37 U.S.C. 206(a), where such member is not entitled to the 
basic pay (as defined by paragraph (3) of this section).
    (d) Payments to volunteers and volunteer leaders in the Peace Corps. 
If you are a volunteer or volunteer leader under the provisions of the 
Peace Corps Act (22 U.S.C. 2501ff), payments for your services are wages 
with the exception of amounts in excess of the amounts certified as 
payable under section 5(c) or 6(1) of the Peace Corps Act. Amounts 
certified under those sections are considered to have been paid to the 
individual at the time the service is performed. See Sec. 404.1018(e) on 
coverage of these services.
    (e) Moving expenses. We do not include as wages amounts paid to, or 
on behalf of, an employee for moving expenses if it is reasonable to 
believe that a similar deduction is allowable under section 217 of the 
Code.
    (f) Payments by employer to survivor or estate of former employee. 
We do not include as wages any payment by an employer to a survivor or 
the estate of a former employee after the calendar year in which the 
employee died.
    (g) Payments to an employee who is entitled to disability insurance 
benefits. We do not include as wages any payments made by an employer to 
an employee if at the time such payment is made--
    (1) The employee is entitled to disability insurance benefits under 
the Act;
    (2) The employee's entitlement to such benefits began before the 
calendar year in which the employer's payment is made; and
    (3) The employee performed no work for the employer in the period in 
which the payments were paid by such employer (regardless of whether the 
employee worked in the period the payments were earned).
    (h) Tips. (1) We include as wages tips received by an employee if--
    (i) The tips are paid in cash; and
    (ii) The tips amount to $20 or more and are received in the course 
of employment by an employee in a calendar month.
    (2) Cash tips include checks and other forms of money. Tips received 
in a form other than cash, such as passes, tickets, or other goods are 
not wages. If an employee works for more than one employer in a calendar 
month, we apply the $20 tip test to work done for each employer.
    (i) Payments by employer under group legal services plan. We do not 
include as wages any contribution, payment, or service, provided by an 
employer under a qualified group legal services plan which is excludable 
from the gross income of an employee, or the employee's spouse or 
dependents, under section 120 of the Code.

[45 FR 20075, Mar. 27, 1980, as amended at 52 FR 29662, Aug. 11, 1987. 
Redesignated and amended at 55 FR 7310, Mar. 1, 1990; 57 FR 59914, Dec. 
17, 1992]

[[Page 281]]



Sec. 404.1059  Deemed wages for certain individuals interned during World War II.

    (a) In general. Persons who were interned during any period of time 
from December 7, 1941, through December 31, 1946, by the United States 
Government at a place operated by the Government within the United 
States for the internment of United States citizens of Japanese ancestry 
are deemed to have been paid wages (in addition to wages actually paid) 
as provided in paragraph (c) of this section during any period after 
attaining age 18 while interned. This provision is effective for 
determining entitlement to, and the amount of, any monthly benefit for 
months after December 1972, for determining entitlement to, and the 
amount of, any lump-sum death payment in the case of a death after 
December 1972, and for establishing a period of disability.
    (b) Information needed to process deemed wages. Unless we have 
already made a determination on deemed wages for a period of internment 
of an individual, any person applying for a monthly benefit, a 
recalculation of benefits by reason of this section, or a lump-sum death 
payment, must submit certain information before the benefit or payment 
may be computed on the basis of deemed wages. This information is--
    (1) The place where the individual worked before internment;
    (2) The highest hourly wage before internment;
    (3) The place and date of internment;
    (4) Date of birth (if not previously furnished);
    (5) Whether or not another Federal benefit is being received based 
wholly or in part upon the period of internment; and
    (6) In the case of a woman, her maiden name.
    (c) Amount of deemed wages. The amount of wages which may be deemed 
is determined as follows:
    (1) Employed prior to internment. If the individual was employed 
before being interned, the deemed wages are the greater of--
    (i) The highest actual hourly rate of pay received for any 
employment before internment, multiplied by 40 for each full week during 
the period of internment; or
    (ii) The Federal minimum hourly rate in effect for the period of 
internment, multiplied by 40 for each full week during that period.
    (2) Self-employed or not employed prior to internment. If the 
individual was self-employed or was not employed before the period of 
internment, the deemed wages are the Federal minimum hourly rate in 
effect for that period, multiplied by 40 for each full week during the 
period.
    (d) When wages are not deemed. Wages are not deemed under this 
section--
    (1) For any period before the quarter in which the individual 
attained age 18; or
    (2) If a larger benefit is payable without the deemed wages; or
    (3) If a benefit based in whole or in part upon internment is 
determined by any agency of the United States to be payable under any 
other law of the United States or under a system set up by that agency. 
However, this exception does not apply in cases where the failure to 
receive deemed wages reduces the primary insurance amount by 50 cents or 
less.
    (e) Certification of internment. The certification concerning the 
internment is made by the Archivist of the United States or his or her 
representative. After the internment has been verified, wages are deemed 
to have been paid to the internee.

[45 FR 20075, Mar. 27, 1980, as amended at 52 FR 29662, Aug. 11, 1987. 
Redesignated at 55 FR 7310, Mar. 1, 1990]



Sec. 404.1060  [Reserved]

                             Self-Employment



Sec. 404.1065  Self-employment coverage.

    For an individual to have self-employment coverage under social 
security, the individual must be engaged in a trade or business and have 
net earnings from self-employment that can be counted as self-employment 
income for social security purposes. The rules explaining whether you 
are engaged in a trade or business are in Secs. 404.1066 through 
404.1077. What are net earnings from self-employment is discussed in 
Secs. 404.1080 through 404.1095. Section

[[Page 282]]

404.1096 describes the net earnings from self-employment that are 
counted as self-employment income for social security purposes. See 
Sec. 404.1913 for the effect of a totalization agreement on self-
employment coverage. An agreement may exempt an activity from coverage 
as well as extend coverage to an activity.

[50 FR 36574, Sept. 9, 1985]



Sec. 404.1066  Trade or business in general.

    For you to be covered as a self-employed person for social security 
purposes, you must be engaged in a trade or business. You can carry on a 
trade or business as an individual or as a member of a partnership. With 
some exceptions, the term trade or business has the same meaning as it 
does when used in section 162 of the Code.



Sec. 404.1068  Employees who are considered self-employed.

    (a) General. Although we generally exclude services performed by 
employees from the definition of trade or business, certain types of 
services are considered a trade or business even though performed by 
employees. If you perform any of the services described in paragraphs 
(b) through (f) of this section, you are self-employed for social 
security purposes. Certain other services described in Sec. 404.1071 
(relating to ministers and members of religious orders) and 
Sec. 404.1073 (relating to certain public officers) may be considered a 
trade or business even though performed by employees.
    (b) Newspaper vendors. If you have attained age 18 and perform 
services as a newspaper vendor that are described in Sec. 404.1030(b), 
you are engaged in a trade or business.
    (c) Sharefarmers. If you perform services as a sharefarmer that are 
described in Sec. 404.1017, you are engaged in a trade or business.
    (d) Employees of a foreign government, an instrumentality wholly 
owned by a foreign government, or an international organization. If you 
are a United States citizen and perform the services that are described 
in Sec. 404.1032, Sec. 404.1033(a), or Sec. 404.1034(a), you are engaged 
in a trade or business if the services are performed in the United 
States and are not covered as employment based upon Sec. 404.1034(c).
    (e) Certain fishermen. If you perform services as a fisherman that 
are described in Sec. 404.1031, you are engaged in a trade or business.
    (f) Employees of a church or church-controlled organization that has 
elected to exclude employees from coverage as employment. If you perform 
services that are excluded from employment as described in 
Sec. 404.1026, you are engaged in a trade or business. Special rules 
apply to your earnings from those services which are known as church 
employee income. If you are paid $100 or more in a taxable year by an 
employer who has elected to have its employees excluded, those earnings 
are self-employment income (see Sec. 404.1096(c)(1)). In figuring your 
church employee income you may not reduce that income by any deductions 
attributable to your work. Your church employee income and deductions 
may not be taken into account in determining the amount of other net 
earnings from self-employment. Effective for taxable years beginning on 
or after January 1, 1990, your church employee income is exempt from 
self-employment tax under the conditions set forth for members of 
certain religious groups (see Sec. 404.1075).

[45 FR 20075, Mar. 27, 1980, as amended at 50 FR 36574, Sept. 9, 1985; 
58 FR 64889, Dec. 10, 1993; 61 FR 38367, July 24, 1996]



Sec. 404.1069  Real estate agents and direct sellers.

    (a) Trade or business. If you perform services after 1982 as a 
qualified real estate agent or as a direct seller, as defined in section 
3508 of the Code, you are considered to be engaging in a trade or 
business.
    (b) Who is a qualified real estate agent. You are a qualified real 
estate agent as defined in section 3508 of the Code if you are a 
salesperson and--
    (1) You are a licensed real estate agent;
    (2) Substantially all of the earnings (whether or not paid in cash) 
for the services you perform as a real estate agent are directly related 
to sales or other output (including the performance of services) rather 
than to the number of hours worked; and

[[Page 283]]

    (3) Your services are performed under a written contract between 
yourself and the person for whom the services are performed which 
provides you will not be treated as an employee with respect to these 
services for Federal tax purposes.
    (c) Who is a direct seller. You are a direct seller as defined in 
section 3508 of the Code if--
    (1) You are engaged in the trade or business of selling (or 
soliciting the sale of) consumer products--
    (i) To any buyer on a buy-sell basis, a deposit-commission basis, or 
any similar basis which the Secretary of the Treasury prescribes by 
regulations, for resale (by the buyer or any other person) in the home 
or in other than a permanent retail establishment; or
    (ii) In the home or in other than a permanent retail establishment; 
and
    (2) Substantially all of your earnings (whether or not paid in cash) 
for the performance of these services are directly related to sales or 
other output (including the performance of services) rather than to the 
number of hours worked; and
    (3) Your services are performed under a written contract between 
yourself and the person for whom the services are performed which 
provides you will not be treated as an employee with respect to these 
services for Federal tax purposes.

[48 FR 40515, Sept. 8, 1983]



Sec. 404.1070  Christian Science practitioners.

    If you are a Christian Science practitioner, the services you 
perform in the exercise of your profession are a trade or business 
unless you were granted an exemption from coverage under section 1402(e) 
of the Code, and you did not revoke such exemption in accordance with 
section 1704(b) of the Tax Reform Act of 1986. An exemption cannot be 
granted if you filed a valid waiver certificate under the provisions 
that apply to taxable years ending before 1968.

[55 FR 7311, Mar. 1, 1990]



Sec. 404.1071  Ministers and members of religious orders.

    (a) If you are a duly ordained, commissioned, or licensed minister 
of a church, or a member of a religious order who has not taken a vow of 
poverty, the services you perform in the exercise of your ministry or in 
the exercise of duties required by the order (Sec. 404.1023(c) and (e)) 
are a trade or business unless you filed for and were granted an 
exemption from coverage under section 1402(e) of the Code, and you did 
not revoke such exemption in accordance with section 1704(b) of the Tax 
Reform Act of 1986. An exemption cannot be granted if you filed a valid 
waiver certificate under the provisions that apply to taxable years 
ending before 1968.
    (b) If you are a member of a religious order and have taken a vow of 
poverty, the services you perform in the exercise of your duties 
required by the order may be covered as employment. (See Sec. 404.1023 
(a) and (e)).

[45 FR 20075, Mar. 27, 1980, as amended at 55 FR 7311, Mar. 1, 1990]



Sec. 404.1073  Public office.

    (a) General. The performance of the functions of a public office is 
not a trade or business except under the circumstances explained in 
paragraph (b) of this section. If you are an officer of a State or 
political subdivision, you are considered as employee of the State or 
political subdivision.
    (b) State and local governmental employees paid by fees--(1) 
Voluntary coverage under section 218 of the Act. The services of 
employees of States and political subdivisions, including those in 
positions paid solely on a fee-basis, may be covered as employment by a 
Federal-State agreement under section 218 of the Act (see subpart M of 
this part). States, when entering into these agreements, have the option 
of excluding under the agreement coverage of services in positions paid 
solely by fees. If you occupy a position paid solely on a fee-basis and 
the State has not covered your services under section 218 of the Act, 
you are considered to be engaged in a trade or business.
    (2) Mandatory old-age, survivors, disability, and hospital insurance 
coverage. Beginning with services performed after July 1, 1991, Social 
Security coverage (old-age, survivors, disability, and hospital 
insurance) is mandatory, with certain exceptions, for services

[[Page 284]]

performed by employees of a State, a political subdivision of a State, 
or of a wholly owned instrumentality of one or more of the foregoing, if 
the employees are not members of a retirement system of the State, 
political subdivision, or instrumentality. Among the exclusions from 
such mandatory coverage is service performed by an employee in a 
position compensated solely on a fee-basis which is treated pursuant to 
section 211(c)(2)(E) of the Act as a trade or business for purposes of 
inclusion of such fees in the net earnings from self-employment.
    (3) If you are a notary public, you are not a public officer even 
though you perform a public function. Your services as a notary public 
are not covered for social security purposes.

[45 FR 20075, Mar. 27, 1980, as amended at 57 FR 59910, Dec. 17, 1992]



Sec. 404.1074  Farm crew leader who is self-employed.

    If you are a farm crew leader and are deemed the employer of the 
workers as described in Sec. 404.1010, we consider you to be engaged in 
a trade or business. This includes services performed in furnishing 
workers to perform agricultural labor for others, as well as services 
performed as a member of the crew.



Sec. 404.1075  Members of certain religious groups opposed to insurance.

    (a) You may file an application with the Internal Revenue Service 
for exemption from social security self-employment tax if--
    (1) You are a member of a recognized religious sect or division of 
the sect; and
    (2) You adhere to the tenets or teachings of the sect or division of 
the sect and for this reason are conscientiously opposed to receiving 
benefits from any private or public insurance that--
    (i) Makes payments in the event of death, disability, old age, or 
retirement; or
    (ii) Makes payments toward the cost of, or provides services for, 
medical care (including the benefits of any insurance system established 
by the Act).
    (b) Your application must be filed under the rules described in 26 
CFR 1.1402(h). An application must contain or be accompanied by the 
applicant's waiver of all benefits and payments under title II and part 
A of title XVIII of the Act. See Sec. 404.305 for the effect of the 
filing of the waiver and the granting of the exemption.
    (c) Regardless of whether you meet all these conditions, your 
application for exemption will not be approved unless we find that--
    (1) The sect or division of the sect has established tenets or 
teachings which cause you to be conscientiously opposed to the types of 
insurance benefits described in paragraph (a)(2) of this section;
    (2) For a substantial period of time it has been the practice for 
members of the sect or division of the sect to make provision for their 
dependent members which is reasonable in view of their general level of 
living; and
    (3) The sect or division of the sect has been in existence 
continuously since December 31, 1950.
    (d) Your application for exemption will be approved by the Internal 
Revenue Service only if no benefit or other payment under title II or 
part A of title XVIII of the Act became payable or, but for section 203 
or section 222(b) of the Act, would have become payable, to you or on 
your behalf at or before the time of the filing of your application for 
exemption.
    (e) The tax exemption ceases to be effective for any taxable year 
ending after the time you do not meet the requirements of paragraph (a) 
of this section or after the time we find the religious sect or division 
of the sect of which you are a member no longer meets the requirements 
of paragraph (c) of this section. If your tax exemption ceases to be 
effective, your waiver of the right to receive Social Security and 
Medicare part A benefits will also no longer be effective. Benefits may 
be payable based upon your wages for and after the calendar year 
following the calendar year in which the event occurred upon which the 
cessation of the exemption is based. Benefits may be payable based upon 
your self-employment income for and after the taxable year in which the 
event occurred upon

[[Page 285]]

which the cessation of the exemption is based.

[45 FR 20075, Mar. 27, 1980, as amended at 58 FR 64890, Dec. 10, 1993]



Sec. 404.1077  Individuals under railroad retirement system.

    If you are an employee or employee representative as defined in 
section 3231(b) and (c) of the Code, your work is not a trade or 
business. Your services are covered under the railroad retirement 
system.

                         Self-Employment Income



Sec. 404.1080  Net earnings from self-employment.

    (a) Definition of net earnings from self-employment. If you are 
self-employed, you must first determine the amount of your net earnings 
from self-employment before figuring the amount of your earnings that 
count for social security purposes. Some of your earnings may not be 
included as net earnings from self-employment even though they are 
taxable for income tax purposes. If you are an employee but we consider 
you to be self-employed for social security purposes, you must figure 
your earnings as though you were actually self-employed unless you work 
for a church or church-controlled organization that has exempted its 
employees (see Sec. 404.1068(f)). Subject to the special rules in 
Secs. 404.1081 through 404.1095, the term net earnings from self-
employment means--
    (1) Your gross income, as figured under subtitle A of the Code, from 
any trade or business you carried on, less deductions attributed to your 
trade or business that are allowed by that subtitle; plus
    (2) Your distributive share of income (or loss) from a trade or 
business carried on by a partnership of which you are a member, as 
described in paragraph (b) of this section.
    (b) Income or loss from a partnership. (1) Your distributive share 
(whether or not actually distributed) of the income or loss from any 
trade or business carried on by a partnership of which you are a member, 
other than as a limited partner, is determined under section 704 of the 
Code.
    (2) If you are a limited partner, your distributive share is 
included in your net earnings from self-employment if--
    (i) The amount is payable to you for services you render to or on 
behalf of the partnerships; and
    (ii) It is a guaranteed payment described in section 707(c) of the 
Code.
    (3) You are a limited partner if your financial liability for the 
obligations of the partnership is limited to the amount of your 
financial investment in the partnership. Generally, you will not have to 
perform services in the operation of, or participate in the control of, 
the business carried on by the partnership for the taxable year 
involved.
    (c) Reporting methods. Your gross income from a trade or business 
includes the gross income you received (under the cash method) or that 
accrued to you (under the accrual method) from the trade or business in 
the taxable year. It is immaterial that the income may be attributable 
in whole or in part to services you rendered or other acts you performed 
in a prior taxable year.
    (d) What is a taxable year. (1) The term taxable year means--
    (i) Your annual accounting period on which you regularly figure your 
income in keeping your books; or
    (ii) A short period resulting from your death before the end of your 
annual accounting period or from a change of your annual accounting 
period.
    (2) The term annual accounting period means--
    (i) A calendar year, consisting of 12 months ending on December 31; 
or
    (ii) A fiscal year, consisting of--
    (A) 12 months ending on the last day of any month other than 
December; or
    (B) A period, if elected under section 441 of the Code, that varies 
from 52 to 53 weeks and always ends on the same day of the week that 
occurs last in a calendar month or nearest to the last day of the 
calendar month.
    (3) Your taxable year for figuring self-employment income is the 
same as your taxable year for the purposes of subtitle A of the Code. 
Your taxable year is a calendar year if--
    (i) You keep no books;
    (ii) You have no annual accounting period; or

[[Page 286]]

    (iii) You have an annual accounting period that differs from the 
definition of fiscal year as described in paragraph (d)(2)(ii) of this 
section.

[45 FR 20075, Mar. 27, 1980, as amended at 50 FR 36574, Sept. 9, 1985]



Sec. 404.1081  General rules for figuring net earnings from self-employment.

    (a) Determining net earnings. (1) In determining your gross income 
and the deductions attributable to your trade or business for the 
purpose of determining your net earnings from self-employment, the 
provisions that apply to the taxes imposed by sections 1 and 3 of the 
Code are used.
    (2) If you use the accrual method of accounting to figure your 
taxable income from a trade or business, you must use the same method in 
determining your net earnings from self-employment.
    (3) If you are engaged in a trade or business of selling property on 
the installment plan and elect, under the provisions of section 453 of 
the Code, to use the installment method of accounting in figuring your 
income, you must use the installment method in determining your net 
earnings from self-employment.
    (4) Any income which can be excluded from gross income under any 
provision of subtitle A of the Code cannot be counted in determining 
your net earnings from self-employment, unless--
    (i) You are a resident of Puerto Rico (see Sec. 404.1089);
    (ii) You are a minister or member of a religious order (see 
Sec. 404.1091);
    (iii) You are a United States citizen or resident engaged in a trade 
or business outside the United States (see Sec. 404.1092); or
    (iv) You are a citizen of, or have income from sources within, 
certain possessions of the United States (see Sec. 404.1093).
    (b) Trade or business carried on. You must carry on the trade or 
business either personally or through agents or employees. Income from a 
trade or business carried on by an estate or trust is not included in 
determining the net earnings from self-employment of the individual 
beneficiaries of the estate or trust.
    (c) Aggregate net earnings. If you are engaged in more than one 
trade or business, your net earnings from self-employment consist of the 
total of the net income and losses of all the trades or businesses you 
carry on. A loss in one trade or business you carry on offsets the 
income from another trade or business.
    (d) Partnerships. When you have net earnings from self-employment 
from a partnership as described in Sec. 404.1080 (a) and (b), those net 
earnings are combined with your other net earnings from self-employment 
in determining your total net earnings from self-employment for the 
taxable year.
    (e) Different taxable years. If you are a partner and your taxable 
year is different from that of the partnership, you must include, in 
figuring your net earnings from self-employment, your distributive share 
of the income or loss of the partnership for its taxable year ending 
with or within your taxable year. For the special rule in case of the 
termination of a partner's taxable year as a result of death, see 
Sec. 404.1087.
    (f) Meaning of partnerships. A partnership for social security 
purposes is one that is recognized as a partnership for income tax 
purposes. For income tax purposes, the term partnership includes not 
only a partnership as known under common law, but also a syndicate, 
group, pool, joint venture, or other unincorporated organization that 
carries on any trade or business, financial operation, or venture, and 
which is not a trust, estate, or a corporation.
    (g) Proprietorship taxed as domestic corporation. If you are a 
proprietor of an unincorporated business enterprise and have elected to 
be taxed as a domestic corporation, you must figure your net earnings 
from self-employment without regard to the election you have made.

[45 FR 20075, Mar. 27, 1980, as amended at 50 FR 36574, Sept. 9, 1985]



Sec. 404.1082  Rentals from real estate; material participation.

    (a) In general. Your rentals from real estate and from personal 
property leased with the real estate (including rentals paid in crop 
shares) and the deductions attributable to the rentals are excluded in 
figuring your net earnings

[[Page 287]]

from self-employment, unless you receive the rentals in the course of a 
trade or business as a real estate dealer. If you are an owner or lessee 
of land, rentals paid in crop shares include income you get under an 
agreement with another person if the arrangement provides for the 
following:
    (1) The other person will produce agricultural or horticultural 
commodities on the land.
    (2) The commodities produced, or the income from their sale, will be 
divided between you and the other person.
    (3) The amount of your share depends on the amount of the 
commodities produced.
    (b) Real estate dealers. (1) You are a real estate dealer if you are 
engaged in the business of selling real estate to customers for profit.
    (2) If you merely hold real estate for investment or speculation and 
receive rental income from it, you are not considered a real estate 
dealer.
    (3) If you are a real estate dealer, but also hold real estate for 
investment or speculation in addition to real estate you hold for sale 
to customers, only the rental income from the real estate held for sale 
to customers and the deductions attributable to it are included in 
determining your net earnings from self-employment. The rental income 
from real estate you hold for investment or speculation and the 
deductions attributable to it are not counted in figuring your net 
earnings from self-employment.
    (c) Special rule for farm rental income--(1) In general. If you own 
or lease land, any income you derive from it is included in figuring 
your net earnings from self-employment if--
    (i) The income results from an arrangement between you and another 
person which provides for the other person to produce agricultural or 
horticultural commodities on the land that you own or lease and for you 
to materially participate in the production or the management of the 
production of the agricultural or horticultural commodities; and
    (ii) You actually do materially participate.
    (2) Nature of arrangement. (i) The arrangement between you and the 
other person may be either oral or written. It must provide that the 
other person will produce one or more agricultural or horticultural 
commodities and that you will materially participate in the production 
or the management of the production of the commodities.
    (ii) The term production, refers to the physical work performed and 
the expenses incurred in producing a commodity. It includes activities 
like the actual work of planting, cultivating, and harvesting crops, and 
the furnishing of machinery, implements, seed, and livestock.
    (iii) The term management of the production, refers to services 
performed in making managerial decisions about the production of the 
crop, such as when to plant, cultivate, dust, spray, or harvest, and 
includes advising and consulting, making inspections, and making 
decisions on matters, such as rotation of crops, the type of crops to be 
grown, the type of livestock to be raised, and the type of machinery and 
implements to be furnished.
    (3) Material participation. (i) If you show that you periodically 
advise or consult with the other person, who under the rental 
arrangement produces the agricultural or horticultural commodities, and 
also show that you periodically inspect the production activities on the 
land, you will have presented strong evidence that you are materially 
participating.
    (ii) If you also show that you furnish a large portion of the 
machinery, tools, and livestock used in the production of the 
commodities, or that you furnish or advance monies, or assume financial 
responsibility, for a substantial part of the expense involved in the 
production of the commodities, you will have established that you are 
materially participating.
    (4) Employees or agents. We consider any farm rental arrangement 
entered into by your employee or agent and another person to be an 
arrangement entered into by you. However, we do not consider the 
services of an employee or agent as your services in determining the 
extent to which you have participated in the production or management of 
production of a commodity.
    (5) Examples.

[[Page 288]]

    Example 1.  After the death of her husband, Ms. A rents her farm, 
together with its machinery and equipment, to B for one-half of the 
proceeds from the commodities produced on the farm by B. It is agreed 
that B will live in the tenant house on the farm and be responsible for 
the overall operation of the farm, such as planting, cultivating, and 
harvesting the field crops, caring for the orchard and harvesting the 
fruit and caring for the livestock and poultry. It also is agreed that 
Ms. A will continue to live in the farm residence and help B operate the 
farm. Under the agreement it is expected that Ms. A will regularly 
operate and clean the cream separator and feed the poultry flock and 
collect the eggs. When possible she will assist B in such work as 
spraying the fruit trees, penning livestock, culling the poultry, and 
controlling weeds. She will also assist in preparing the meals when B 
engages seasonal workers. The agreement between Ms. A and B clearly 
provides that she will materially participate in the overall production 
operations to be conducted on her farm by B. In actual practice, Ms. A 
regularly performs those services. The regularly performed services are 
material to the production of an agricultural commodity, and the 
services performed are material to the production operations to which 
they relate. The furnishing of a substantial portion of the farm 
machinery and equipment also supports the conclusion that Ms. A has 
materially participated. Accordingly, the rental income Ms. A receives 
from her farm should be included in her net earnings from self-
employment.
    Example 2.  G owns a fully-equipped farm which he rents to H under 
an arrangement which provides that G will materially participate in the 
management of the production of crops raised on the farm under the 
arrangement. G lives in town about 5 miles from the farm. About twice a 
month he visits the farm and looks over the buildings and equipment. G 
may occasionally, in an emergency, discuss with H some phase of a crop 
production activity. In effect, H has complete charge of the management 
of farming operations regardless of the understanding between him and G. 
Although G pays one-half of the cost of the seed and fertilizer and is 
charged for the cost of materials purchased by H to make all necessary 
repairs, G's activities are not material in the crop production 
activities. Accordingly, G's income from the crops is not included in 
net earnings from self-employment.
    (d) Rental income from living quarters--(1) No services provided for 
occupants. Payments you receive for renting living quarters in a private 
residence, duplex, or multiple-housing unit are generally rental income 
from real estate. Except in the case of real estate dealers, these 
payments are excluded in determining net earnings from self-employment, 
even if the payments are in part attributable to personal property 
furnished under the lease.
    (2) Services provided for occupants. (i) Payments you receive for 
renting living quarters where services are also provided to the 
occupant, as in hotels, boarding houses, or apartment houses furnishing 
hotel services, or in tourist camps or tourist homes, are included in 
determining your net earnings from self-employment. Any payments you 
receive for the use of space in parking lots, warehouses, or storage 
garages are also included in determining your net earnings from self-
employment.
    (ii) Generally, we consider services to be provided to the occupant 
if they are primarily for the occupant's convenience and are other than 
those usually provided in connection with the rental of rooms or other 
space for occupancy only. We consider the supplying of maid service to 
be a service provided to the occupant. However, we do not consider the 
furnishing of heat and light, the cleaning of public entrances, exits, 
stairways, and lobbies and the collection of trash, as services provided 
to the occupant.
    Example  A owns a building containing four apartments. During the 
taxable year, A received $1,400 from apartments numbered 1 and 2, which 
are rented without services provided to the occupants, and $3,600 from 
apartments numbered 3 and 4, which are rented with services provided. 
A's fixed expenses for the four apartments are $1,200 during the taxable 
year. In addition, A has $500 of expenses attributable to the services 
provided to the occupants of apartments 3 and 4. In determining his net 
earnings from self-employment, A includes the $3,600 received from 
apartments 3 and 4, and the expenses of $1,100 ($500 plus one-half of 
$1,200) attributable to them. The rentals and expenses attributable to 
apartments 1 and 2 are excluded. Therefore, A has $2,500 of net earnings 
from self-employment from the building for the taxable year.
    (e) Treatment of business income which includes rentals from real 
estate. If an individual or a partnership is engaged in a trade or 
business other than real estate, and part of the income is rentals from 
real estate, only that part of the income which is not rentals and the 
expenses attributable to that portion are included in determining net 
earnings from self-employment.

[[Page 289]]



Sec. 404.1083  Dividends and interest.

    (a) The dividends you receive on shares of stock are excluded in 
determining your net earnings from self-employment, unless you are a 
dealer in stocks and securities and receive the dividends in the course 
of your trade or business.
    (b) The interest you receive on a bond, debenture, note, 
certificate, or other evidence of indebtedness issued with interest 
coupons or in registered form by any corporation (including one issued 
by a government or political subdivision) is excluded in determining 
your net earnings from self-employment, unless you are a dealer in 
stocks and securities and receive the interest in the course of your 
trade or business.
    (c) If you hold stocks or securities for investment or speculation 
purposes, any dividends and interest you receive that are excludable 
under paragraphs (a) and (b) of this section are excluded in determining 
your net earnings from self-employment, whether or not you are a dealer 
in stocks and securities.
    (d) A dealer in stocks or securities is a merchant with an 
established place of business who is regularly engaged in the business 
of purchasing stocks or securities and reselling them to customers. The 
dealer, as a merchant, buys stocks or securities and sells them to 
customers with a view to making a profit. Persons who buy and sell or 
hold stocks or securities for investment or speculation, regardless of 
whether the buying or selling constitutes a trade or business, are not 
dealers in stocks or securities.

[45 FR 20075, Mar. 25, 1980; 45 FR 25060, Apr. 14, 1980]



Sec. 404.1084  Gain or loss from disposition of property; capital assets; timber, coal, and iron ore; involuntary conversion.

    (a) If you are engaged in a trade or business, you must, in 
determining your net earnings from self-employment, exclude any gain or 
loss--
    (1) That is considered a gain or loss from the sale or exchange of a 
capital asset;
    (2) From the cutting of timber or from the disposal of timber or 
coal, even if held primarily for sale to customers, if section 631 of 
the Code applies to the gain or loss;
    (3) From the disposal of iron ore mined in the United States, even 
if held primarily for sale to customers, if section 631 of the Code 
applies to the gain or loss; and
    (4) From the sale, exchange, involuntary conversion, or other 
disposition of property that is not--
    (i) Stock in trade or other property of a kind which would properly 
be included in inventory if on hand at the close of the taxable year; or
    (ii) Property held primarily for sale to customers in the ordinary 
course of a trade or business;
    (b) For purposes of paragraph (a)(4) of this section, it is 
immaterial whether a gain or loss is treated as a capital gain or as an 
ordinary gain or loss for purposes other than determining earnings from 
self-employment.
    (c) For purposes of paragraph (a)(4) of this section--
    (1) The term involuntary conversion means a compulsory or unintended 
change of property into other property or money as a result of such 
things as destruction, theft or seizure; and
    (2) The term other disposition includes destruction or loss by fire, 
theft, storm, shipwreck, or other casualty, even though there is no 
change of the property into other property or money.
    Example  During the taxable year 1976, A, who owns a grocery store, 
had a net profit of $1,500 from the sale of groceries and a gain of $350 
from the sale of a refrigerator case. During the same year, he had a 
loss of $2,000 as a result of damage by fire to the store building. In 
figuring taxable income for income tax purposes, all of these items are 
considered. In determining net earnings from self-employment, however, 
only the $1,500 of profit derived from the sale of groceries is 
included. The $350 gain and the $2,000 loss are excluded.



Sec. 404.1085  Net operating loss deduction.

    When determining your net earnings from self-employment, you 
disregard the deduction provided by section 172 of the Code that relates 
to net operating losses sustained in years other than the taxable year.



Sec. 404.1086  Community income.

    (a) In case of an individual. (1) If community property laws apply 
to income

[[Page 290]]

that an individual derives from a trade or business (other than a trade 
or business carried on by a partnership), all of the gross income and 
the deductions attributable to the income are generally treated as the 
gross income and deductions of the husband. However, if the wife 
exercises substantially all of the management and control of that trade 
or business, all of the gross income and deductions are treated as the 
gross income and deductions of the wife.
    (2) The term management and control means management and control in 
fact, not the management and control given to the husband under the 
community property laws. For example, a wife who operates a beauty 
parlor without any significant help from her husband will be considered 
as having substantially all of the management and control of the 
business, despite the provision of any community property law giving the 
husband the right of management and control of community property. The 
income and deductions from the operations of the beauty parlor are 
considered the income and deductions of the wife.
    (b) In case of a partnership. Even though only a portion of a 
partner's distributive share of the income or loss from a trade or 
business carried on by a partnership is community income or loss under 
the community property laws applicable to the share, all of the 
distributive share is included in figuring the net earnings from self-
employment of that partner. No part of the share is taken into account 
in figuring the net earnings from self-employment of the spouse of the 
partner. In any case in which both spouses are members of the same 
partnership, the distributive share of the income or loss of each spouse 
is included in figuring the net earnings from self-employment of that 
spouse.



Sec. 404.1087  Figuring partner's net earnings from self-employment for taxable year which ends as a result of death.

    (a) General. In the case of a deceased partner whose taxable year 
ends because of death, the deceased partner's net earnings from self-
employment includes the amount of his or her distributive share of 
partnership ordinary income or loss for the partnership's taxable year 
that is attributable to an interest in the partnership through the month 
of death.
    (b) Computation. (1) The deceased partner's distributive share of 
partnership ordinary income or loss for the partnership taxable year in 
which death occurred is determined by applying the rules contained in 
paragraphs (d) and (f) of Sec. 404.1081.
    (2) The portion of the distributive share to be included in the 
deceased partner's net earnings from self-employment for his or her last 
taxable year is determined by treating the ordinary income or loss 
constituting the distributive share as having been realized or sustained 
ratably over the partnership taxable year during which the deceased 
partner had an interest in the partnership and during which the deceased 
partner's estate, or any other person succeeding by reason of the death 
to rights to his partnership interest, held an interest in the 
partnership.
    (c) Deceased partner's distributive share. A deceased partner's 
distributive share includes the distributive share of the estate or of 
any other person succeeding to the interest of a deceased partner. It 
does not include any share attributable to a partnership interest that 
was not held by the deceased partner at the time of death. If a deceased 
partner's estate should acquire an interest in a partnership in addition 
to the interest to which it succeeded upon the death of the deceased 
partner, the amount of the distributive share attributable to the 
additional interest acquired by the estate is not included in computing 
the deceased partner's distributive share of the partnership's ordinary 
income or loss for the partnership taxable year.
    (d) Options available to farmers. In determining the applicability 
of the optional method of figuring net earnings from self-employment to 
a member of a farm partnership it is necessary to determine the 
partner's distributive share of partnership gross income or distributive 
share of income described in section 702(a)(8) of the Code.

[[Page 291]]



Sec. 404.1088  Retirement payment to retired partners.

    (a) In general. If you are a retired partner, in figuring your net 
earnings from self-employment you must exclude payments made to you on a 
periodic basis by a partnershp on account of your retirement and which 
are to continue until your death. This exclusion applies only if the 
payments are made under a written plan which meets the requirements set 
out in 26 CFR 1.1402(a)-(17) and the conditions in paragraph (b) of this 
section are met. The necessary requirements and conditions must be met 
throughout the entire partnership's taxable year for the payments to be 
excluded so that either all or none of the payments are excluded.
    (b) Other conditions. You must have been paid your full share of the 
partnership's capital before the close of the partnership's taxable year 
in which retirement payments are made. Also, no member of the 
partnership can have any financial obligations to you (in his or her 
capacity as a partner) except to make the retirement payments. Lastly, 
you cannot perform any services for the partnership in the partnership's 
taxable year which falls wholly or partially in your taxable year in 
which you receive the retirement payments.
    Example.  D, a partner in the DEF partnership, retired from the 
partnership as of December 31, 1976. The taxable year of both D and the 
partnership is the calendar year. During the partnership's taxable year 
ending December 31, 1977, D rendered no service to any trade or business 
carried on by the partnership. On or before December 31, 1977, all 
obligations (other than retirement payments under the plan) from the 
other partners to D were liquidated, and D's share of the capital of the 
partnership was paid to him. Retirement payments received by D under the 
partnership's plan in his taxable year ending December 31, 1977, are 
excluded in determining net earnings from self-employment (if any) for 
that taxable year.



Sec. 404.1089  Figuring net earnings for residents and nonresidents of Puerto Rico.

    (a) Residents. If you are a resident of Puerto Rico, whether or not 
you are an alien, a citizen of the United States, or a citizen of Puerto 
Rico, you must figure your net earnings from self-employment in the same 
manner as would a citizen of the United States residing in the United 
States. In figuring your net earnings from self-employment you must 
include your income from sources in Puerto Rico even though you are a 
resident of Puerto Rico during the entire taxable year.
    (b) Nonresidents. A citizen of Puerto Rico, who is also a citizen of 
the United States and who is not a resident of Puerto Rico must figure 
net earnings from self-employment in the same manner as other citizens 
of the United States.



Sec. 404.1090  Personal exemption deduction.

    The deduction provided by section 151 of the Code, relating to 
personal exemptions, is excluded in determining net earnings from self-
employment.



Sec. 404.1091  Figuring net earnings for ministers and members of religious orders.

    (a) General. If you are a duly ordained, commissioned, or licensed 
minister of a church or a member of a religious order who has not taken 
a vow of poverty, we consider you to be engaged in a trade or business 
under the conditions described in Sec. 404.1071 with regard to services 
described in Sec. 404.1023 (c) and (e). In figuring your net earnings 
from self-employment from performing these services, you must include 
certain income (described in paragraphs (b) and (c) of this section) 
that may be excluded from your gross income for income tax purposes.
    (b) Housing and meals. You must include in figuring your net 
earnings from self-employment the rental value of a home furnished to 
you and any rental allowance paid to you as payment for services 
performed in the exercise of your ministry or in the exercise of duties 
required by your order even though the rental value or rental allowance 
may be excluded from gross income by section 107 of the Code. Also, the 
value of any meals or lodging furnished to you in connection with the 
performance of these services is included in figuring your net earnings 
from self-employment even though their value is excluded from gross 
income by section 119 of the Code.

[[Page 292]]

    (c) Services outside the United States. If you one are a citizen or 
resident of the United States performing services outside the United 
States which are in the exercise of your ministry or in the exercise of 
duties required by your order, your net earnings from self-employment 
from the performance of these services are figured as described in 
paragraph (b) of this section. However, they are figured without regard 
to the exclusions from gross income provided in sections 911 and 931 of 
the Code relating to earned income from services performed outside the 
United States and from sources within possessions of the United States.

[45 FR.20075, Mar. 27, 1980, as amended at 50 FR 36574, Sept. 9, 1985]



Sec. 404.1092  Figuring net earnings for U.S. citizens or residents living outside the United States.

    (a) Taxable years beginning after December 31, 1983. If you are a 
citizen or resident of the United States and are engaged in a trade or 
business outside the United States, your net earnings from self-
employment are figured without regard to the exclusion from gross income 
provided by section 911 (a)(1) of the Code.
    (b) Taxable years beginning after December 31, 1981, and before 
January 1, 1984. If you are a citizen of the United States and were 
engaged in a trade or business outside the United States, your net 
earnings from self-employment are figured without regard to the 
exclusion from gross income provided by section 911(a)(1) of the Code 
unless you are a resident of a foreign country or countries for an 
uninterrupted period which includes an entire taxable year.

[50 FR 36574, Sept. 9, 1985]



Sec. 404.1093  Possession of the United States.

    In using the exclusions from gross income provided under section 931 
of the Code (relating to income from sources within possessions of the 
United States) and section 932 of the Code (relating to citizens of 
possessions of the United States) for purposes of figuring your net 
earnings from self-employment, the term possession of the United States 
shall be deemed not to include the Virgin Islands, Guam, or American 
Samoa.



Sec. 404.1094  Options available for figuring net earnings from self-employment.

    (a) General. If you have income from a trade or business in certain 
situations, you have options for figuring your net earnings from self-
employment. The options available to you depend on whether you have 
income from an agricultural trade or business or a non-agricultural 
trade or business. For a definition of agricultural trade or business 
see Sec. 404.1095.
    (b) Agricultural trade or business. The net earnings from self-
employment you derive from an agricultural trade or business may, at 
your option, be figured as follows:
    (1) Gross income of $2,400 or less. If your gross income is $2,400 
or less you may, at your option, report 66\2/3\ percent of the gross 
income as net earnings from self-employment instead of your actual net 
earnings from your business.
    (2) Gross income of more than $2,400. If your gross income is more 
than $2,400 and your actual net earnings from your business are less 
than $1,600 you may, at your option, report $1,600 as net earnings from 
self-employment instead of your actual net earnings. If your actual net 
earnings are $1,600 or more you cannot use the optional method.
    (3) Two or more agricultural trades or businesses. If you carry on 
more than one agricultural trade or business as a sole proprietor or as 
a partner, you must combine your gross income and net income from each 
trade or business to find out whether you may use the optional method of 
figuring net earnings.
    (c) Non-agricultural trade or business. (1) The net earnings from 
self-employment you derive from a non-agricultural trade or business may 
be reported under an optional method if you are self-employed on a 
regular basis (as defined in paragraph (c)(4) of this section). You 
cannot use the optional method of reporting for more than 5 taxable 
years, and you cannot report less than your actual net earnings from 
self-employment.

[[Page 293]]

    (2) Computation. If your actual net earnings from self-employment 
are less than $1,600 and less than 66\2/3\ percent of your gross income, 
you may, at your option, report 66\2/3\ percent of your gross income 
(but not more than $1,600) as your net earnings from self-employment.
    Example.  A operates a grocery store and files income tax returns on 
a calendar year basis. A meets the self-employed on a regular basis 
requirement because actual net earnings from self-employment were $400 
or more in 1976 and in 1977. Gross income and net profit from operating 
the grocery store in 1978 through 1980 are as follows:

------------------------------------------------------------------------
                                                 1978     1979     1980 
------------------------------------------------------------------------
Gross income.................................   $2,800   $1,200   $1,000
Net profit...................................      300      400      800
------------------------------------------------------------------------

    For the year 1978, A may report as annual net earnings from self-
employment either--
    (i) None. (Actual net earnings from self-employment are less than 
$400); or
    (ii) $1,600. (Non-agricultural option, 66\2/3\ percent of $2,800, 
but not to exceed the $1,600 maximum.)
    For the year 1979, A may report as annual net earnings from self-
employment either--
    (i) $400. (Actual net earnings from self-employment); or
    (ii) $800. (Non-agricultural option, 66\2/3\ percent of $1,200.)
    For the year 1980, A must report $800, the actual net earnings from 
self-employment. The non-agricultural option is not available because 
A's actual net earnings are not less than 66\2/3\ percent of the gross 
income.
    (3) Figuring net earnings from both non-agricultural and 
agricultural self-employment. If you are self-employed on a regular 
basis, you may use the non-agricultural optional method of reporting 
when you have both non-agricultural and agricultural trades or 
businesses. However, in order to use this method, your actual net 
earnings from non-agricultural self-employment combined with your actual 
net earnings from agricultural self-employment, or your optional net 
earnings from agricultural self-employment, must be less than $1,600, 
and the net non-agricultural earnings must be less than 66\2/3\ percent 
of your gross non-agricultural income. If you qualify for using both the 
non-agricultural and agricultural option, you may report less than your 
actual total net earnings, but not less than your actual net earnings 
from non-agricultural self-employment alone. If you elect to use both 
options in a given taxable year, the combined maximum reportable net 
earnings from self-employment may not exceed $1,600.
    Example  C was regularly self-employed. She derived actual net 
earnings from self-employment of $400 or more in 1975 and in 1976. Her 
gross income and net profit from operating both a grocery store and a 
farm in 1978 are:

                                                                        
                                                                        
                                                                        
                              Grocery Store                             
Gross income...................................................   $1,000
Net profit.....................................................      800
                                  Farm                                  
Gross income...................................................   $2,600
Net profit.....................................................      400
                                                                        

    For the year 1978, C may report $1,200 (actual net earnings from 
self-employment from both businesses), or $2,400 ($1,600 agricultural 
option (66\2/3\ percent of $2,600 farm gross income not to exceed 
$1,600) and $800 grocery store profit). C cannot use the non-
agricultural option for 1978 because her actual grocery store net 
exceeds 66\2/3\ percent of her grocery store gross income.
    (4) Self-employed on a regular basis. For any taxable year beginning 
after 1972, we consider you to be self-employed on a regular basis, or 
to be a member of a partnership on a regular basis, if, in at least 2 of 
the 3 taxable years immediately before that taxable year, you had actual 
net earnings from self-employment of not less than $400 from 
agricultural and non-agricultural trades or businesses (including your 
distributive share of the net income or loss from any partnership of 
which you are a member).
    (d) Members of partnerships. If you are a member of a partnership 
you may use the optional method of reporting. Your gross income is your 
distributive share of the partnership's gross income (after all 
guaranteed payments to which section 707(c) of the Code applies have 
been deducted), plus your own guaranteed payment.
    (e) Computing gross income. For purposes of this section gross 
income means--
    (1) Under the cash method of computing, the gross receipts from the 
trade or business reduced by the cost or other basis of property that 
was purchased and sold, minus any income that is excluded in computing 
net earnings from self-employment; or

[[Page 294]]

    (2) Under the accrual method of computing, the gross income minus 
any income that is excluded in figuring net earnings from self-
employment.
    (f) Exercise of option. For each taxable year for which you are 
eligible to use the optional method and elect to use that method, you 
must figure your net earnings from self-employment in that manner on 
your tax return for that year. If you wish to change your method of 
reporting after your tax return is filed, you may change it by filing an 
amended tax return with the Internal Revenue Service or by filing with 
us Form 2190, Change in Method of Computing Net Earnings from Self-
Employment.



Sec. 404.1095  Agricultural trade or business.

    (a) An agricultural trade or business is one in which, if the trade 
or business were carried on entirely by employees, the major portion of 
the services would be agricultural labor (Sec. 404.1057).
    (b)(1) If the services are partly agricultural and partly non-
agricultural, the time devoted to the performance of each type of 
service is the test used to determine whether the major portion of the 
services is agricultural labor.
    (2) If more than half of the time spent in performing all the 
services is spent in performing services that are agricultural labor, 
the trade or business is agricultural.
    (3) If half or less of the time spent in performing all the services 
is spent in performing services that are agricultural labor, the trade 
or business is not agricultural. The time spent in performing the 
services is figured by adding the time spent in the trade or business 
during the taxable year by every individual (including the individual 
carrying on the trade or business and the members of that individual's 
family).
    (c) We do not apply the rules in this section if the non-
agricultural services are performed in connection with a trade or 
business separate and distinct from the agricultural trade or business. 
A roadside automobile service station on a farm is a trade or business 
separate and distinct from the agricultural trade or business, and the 
gross income from the service station, less the deductions attributable 
to it, is to be considered in determining net earnings from self-
employment.
    (d) We consider a sharefarmer (see Sec. 404.1068(c)) or a materially 
participating owner or tenant (see Sec. 404.1082(c)) to be engaged in an 
agricultural trade or business. We use the rules in this section to 
determine whether a farm crew leader who is self-employed (see 
Sec. 404.1074) is engaged in an agricultural trade or business.



Sec. 404.1096  Self-employment income.

    (a) General. Self-employment income is the amount of your net 
earnings from self-employment that is subject to social security tax and 
counted for social security benefit purposes. The term self-employment 
income means the net earnings from self-employment you derive in a 
taxable year, except as described in paragraphs (b), (c) and (d) of this 
section.
    (b) Maximum self-employment income. (1) The term self-employment 
income does not include that part of your net earnings from self-
employment that exceeds (or that part of your net earnings from self-
employment which, when added to the wages you received in that taxable 
year, exceeds)--

------------------------------------------------------------------------
                        Taxable year                            Amount  
------------------------------------------------------------------------
Ending before 1955.........................................       $3,600
Ending in 1955 through 1958................................        4,200
Ending in 1959 through 1965................................        4,800
Ending in 1966 and 1967....................................        6,600
Ending after 1967 and beginning before 1972................        7,800
Beginning in 1972..........................................        9,000
Beginning in 1973..........................................       10,800
Beginning in 1974..........................................       13,200
Beginning in 1975..........................................       14,100
Beginning in 1976..........................................       15,300
Beginning in 1977..........................................       16,500
Beginning in 1978..........................................       17,700
Beginning in 1979..........................................       22,900
Beginning in 1980..........................................       25,900
Beginning in 1981..........................................       29,700
Beginning in 1982..........................................       32,400
Beginning in 1983..........................................       35,700
Beginning in 1984..........................................       37,800
Beginning in 1985..........................................       39,600
Beginning in 1986..........................................       42,000
Beginning in 1987..........................................       43,800
Beginning in 1988..........................................       45,000
Beginning in 1989..........................................       48,000
Beginning in 1990..........................................       51,300
Beginning in 1991..........................................       53,400
Beginning in 1992..........................................       55,500
------------------------------------------------------------------------

    (2) For the purpose of this paragraph the term wages includes 
remuneration paid to an employee for services covered by an agreement 
entered into

[[Page 295]]

under section 218 of the Act, or an agreement entered into under section 
3121(l) of the Code, which would be wages under section 209 of Act if 
the services were considered employment under section 210(a) of the Act.
    (c) Minimum net earnings from self employment. (1) Self-employment 
income does not include your net earnings from self-employment when the 
amount of those earnings for the taxable year is less than $400. If you 
have only $300 of net earnings from self-employment for the taxable year 
you would not have any self-employment income. (Special rules apply if 
you are paid $100 or more and work for a church or church-controlled 
organization that has exempted its employees (see Sec. 404.1068(f)).)
    (2) If you have net earnings from self-employment of $400 or more 
for the taxable year you may have less than $400 of creditable self-
employment income. This occurs where your net earnings from self-
employment is $400 or more for a taxable year and the amount of your net 
earnings from self-employment plus the amount of the wages paid to you 
during that taxable year exceed the maximum creditable earnings for a 
year. For example, if you had net earnings from self-employment of 
$1,000 for 1978, and were also paid wages of $17,500 during 1978, your 
creditable self-employment income for 1978 would be $200.
    (d) Nonresident aliens. A nonresident alien has self-employment 
income only if coverage is provided under a totalization agreement [see 
Sec.  404.1913]. We do not consider an individual who is a resident of 
the Commonwealth of Puerto Rico, the Virgin Islands, Guam or American 
Samoa to be a nonresident alien.

[45 FR 20075, Mar. 27, 1980, as amended at 50 FR 36575, Sept. 9, 1985; 
52 FR 8250, Mar. 17, 1987; 57 FR 44098, Sept. 24, 1992]



                          Subpart L  [Reserved]



     Subpart M--Coverage of Employees of State and Local Governments

    Authority:  Secs. 205, 210, 218, and 702(a)(5) of the Social 
Security Act (42 U.S.C. 405, 410, 418, and 902(a)(5)); sec. 12110, Pub. 
L. 99-272, 100 Stat. 287 (42 U.S.C. 418 note); sec. 9002, Pub. L. 99-
509, 100 Stat. 1970.

    Source:  53 FR 32976, Aug. 29, 1988, unless otherwise noted.

                                 General



Sec. 404.1200  General.

    (a) Coverage under section 218 of the Act.  Under section 218 of the 
Social Security Act (the Act) a State may ask the Secretary of Health 
and Human Services to enter into an agreement to extend Federal old-age, 
survivors, disability and hospital insurance coverage to groups of 
employees of the State and its political subdivisions. The Secretary 
shall enter into such an agreement. State and local government 
employees, after being covered under an agreement, have the same benefit 
rights and responsibilities as other employees who are mandatorily 
covered under the programs. For payments due on wages paid before 1987, 
the State assumes full financial and reporting responsibility for all 
groups covered under its agreement. The agreement may not be terminated 
in its entirety or with respect to any coverage group under that 
agreement. For payments due on wages paid in the year 1987 and years 
later, section 9002 of Pub. L. 99-509 amends section 218 of the Act by 
transferring responsibility for collecting contributions due and 
receiving wage reports from the Social Security Administration (SSA) to 
the Internal Revenue Service (IRS). Sections of the regulations wholly 
or partly affected by this amendment to the Act are appended with the 
phrase ``--for wages paid prior to 1987.''
    (b) Mandatory old-age, survivors, disability, and hospital insurance 
coverage. Under section 210(a)(7)(F) of the Act, mandatory old-age, 
survivors, disability, and hospital insurance coverage is extended to 
certain services performed after July 1, 1991, by individuals who are 
employees of a State (other than the District of Columbia, Guam, or 
American Samoa), a political subdivision of the State, or any wholly 
owned instrumentality of one or more of the foregoing, and who are not 
members of

[[Page 296]]

the employer's retirement system. Certain services are excluded from 
such mandatory coverage (see Sec. 404.1020(a)(3).

[53 FR 32976, Aug. 29, 1988, as amended at 57 FR 59911, Dec. 17, 1992]



Sec. 404.1201  Scope of this subpart regarding coverage and wage reports and adjustments.

    This subpart contains the rules of SSA about:
    (a) Coverage under section 218 of the Act--
    (b) Contributions, wage reports, and adjustments--for wages paid 
prior to 1987--
    (1) How a State must identify covered employees and what records it 
must keep on those employees;
    (2) Periodic reviews of the source records kept on covered 
employees;
    (3) How and when a State must report wages and pay contributions;
    (4) What the State's liability for contributions is and how SSA 
figures the amount of those contributions;
    (5) What happens if a State fails to pay its contributions timely;
    (6) How errors in reports and contribution payments are corrected;
    (7) How overpayments of contributions are credited or refunded;
    (8) How assessments are made if contributions are underpaid; and
    (9) How a State can obtain administrative or judicial review of a 
decision on a credit, refund, or assessment.

[53 FR 32976, Aug. 29, 1988, as amended at 57 FR 59911, Dec. 17, 1992]



Sec. 404.1202  Definitions.

    (a) Terms which have special meaning in this subpart are described 
in this section. Where necessary, further explanation is included in the 
section where the term is used.
    (b) Coverage terms:
    Agreement-- The agreement between the Secretary of Health and Human 
Services and the State containing the conditions under which retirement, 
survivors, disability and hospital insurance coverage is provided for 
State and local government employees.
    Coverage-- The extension of Social Security protection (retirement, 
survivors, disability, and hospital insurance) by agreement between the 
Secretary of Health and Human Services and a State to employees of the 
State and its political subdivisions or by agreement between the 
Secretary of Health and Human Services and an interstate instrumentality 
to employees of the interstate instrumentality.
    Coverage group-- The grouping by which employees are covered under 
an agreement.
    Employee-- An employee as defined in section 210(j) of the Act. 
Usually, the common-law control test is used in determining whether an 
employer-employee relationship exists. The term also includes an officer 
of a State or political subdivision.
    Governmental function-- The traditional functions of government: 
legislative, executive, and judicial.
    Interstate instrumentality-- An independent legal entity organized 
by two or more States to carry out one or more functions. For Social 
Security coverage purposes under section 218 of the Act, an interstate 
instrumentality is treated, to the extent practicable, as a ``State.''
    Modification-- A change to the agreement between the Secretary of 
Health and Human Services and a State which provides coverage of the 
services of employees not previously covered or which alters the 
agreement in some other respect.
    Political subdivision-- A separate legal entity of a State which 
usually has specific governmental functions. The term ordinarily 
includes a county, city, town, village, or school district, and in many 
States, a sanitation, utility, reclamation, drainage, flood control, or 
similar district. A political subdivision includes an instrumentality of 
a State, one or more politicial subdivisions of a State, or a State and 
one or more of its political subdivisions.
    Proprietary function-- A business engaged in by a State or political 
subdivision such as a public amusement park or public parking lot.
    Retirement system-- A pension, annuity, retirement, or similar fund 
or system established by a State or political subdivision.
    Secretary-- The Secretary of Health and Human Services or authorized 
delegate.

[[Page 297]]

    SSA-- The Social Security Administration.
    State-- Includes the fifty States, Puerto Rico, and the Virgin 
Islands. It does not include the District of Columbia, Guam or American 
Samoa. ``State'' also refers to an interstate instrumentality where 
applicable.
    We-- The Social Security Administration.
    (c) Contributions, wage reporting, and adjustment terms--for wages 
paid prior to 1987:
    Allowance of a credit or refund-- The written notice to a State of 
the determination by SSA of the amount owed to the State by SSA, the 
period involved, and the basis for the determination.
    Assessment-- The written notice to a State of the determination by 
SSA of the amount (contributions or accrued interest) owed to SSA by the 
State, the period involved, and the basis for the determination.
    Contributions-- Payments made under an agreement which the State 
deposits in a Federal Reserve bank. The amounts are based on the wages 
paid to employees whose services are covered under an agreement. These 
amounts are equal to the taxes imposed under the Internal Revenue Code 
on emp1oyers and employees in private employment.
    Contribution return-- Form used to identify and account for all 
contributions actions.
    Disallowance of a State's claim for credit or refund-- The written 
notice to a State of the determination by SSA that the State's claim for 
credit or refund is denied, the period involved, and the basis for the 
determination.
    Overpayment-- A payment of more than the correct amount of 
contributions or interest.
    Underpayment-- A payment of less than the correct amount of 
contributions or interest.
    Wage Reports-- Forms used to identify employees who were paid wages 
for covered employment and the amounts of those wages paid. This 
includes corrective reports.



Sec. 404.1203  Evidence--for wages paid prior to 1987.

    (a) State's responsibility for submitting evidence. The State, under 
the provisions of the agreement, is responsible for accurately reporting 
the wages paid employees for services covered by the agreement and for 
paying the correct amount of contributions due on those wages. This 
responsibility includes submitting evidence to verify the accuracy of 
the reports and payments.
    (b) Failure to submit requested evidence. The State is required to 
submit information timely to SSA. If we request additional evidence to 
verify the accuracy of reports and payments, we specify when that 
evidence must be submitted. If we do not receive the evidence timely, 
and the State provides no satisfactory explanation for its failure to 
submit the evidence timely, we may proceed, if appropriate, on the basis 
of the information we have. Proceeding on the basis of the information 
we have permits us to credit the wage records of employees properly, 
where possible, while continuing to work with the State to resolve 
remaining discrepancies.

    Effective Date Note:  At 53 FR 32976, Aug. 29, 1988, Sec. 404.1203 
was revised. This amendment contains reporting and recordkeeping 
requirements and will become effective upon approval by the Office of 
Management and Budget. A notice announcing the effective date will be 
published in the Federal Register.



Sec. 404.1204  Designating officials to act on behalf of the State.

    (a) Each State which enters into an agreement shall designate the 
official or officials authorized to act on the State's behalf in 
administering the agreement. Each State shall inform SSA of the name, 
title, and address of the designated official(s) and the extent of each 
official's authority. For example, a State may indicate that the State 
official is authorized:
    (1) To enter into an agreement and execute modifications to the 
agreement; and
    (2) To carry out the ministerial duties necessary to administer the 
agreement.
    For wages paid prior to 1987:

[[Page 298]]

    (3) To enter into agreements to extend or re-extend the time limit 
for assessment or credit;
    (4) To make arrangements in connection with onsite reviews; and
    (5) To request administrative review of an assessment, an allowance 
of a credit or refund, or a disallowance of a credit or refund.
    (b) Each State shall inform SSA timely of changes in designated 
officials or changes in their authority.

    Effective Date Note:  At 53 FR 32976, Aug. 29, 1988, Sec. 404.1204 
was revised, effective Aug. 29, 1988 with the exception of paragraphs 
(a)(5) and (b). Section 404.1204(a)(5) and (b) contain reporting and 
recordkeeping requirements and will become effective upon approval by 
the Office of Management and Budget. A notice announcing the effective 
date will be published in the Federal Register.

                 What Groups of Employees May Be Covered



Sec. 404.1205  Absolute coverage groups.

    (a) General. An absolute coverage group is a permanent grouping of 
employees, e.g., all the employees of a city or town. It is a coverage 
group for coverage and reporting purposes. When used for coverage 
purposes, the term refers to groups of employees whose positions are not 
under a retirement system. An absolute coverage group may include 
positions which were formerly under a retirement system and, at the 
State's option, employees who are in positions under a retirement system 
but who are ineligible (see Sec. 404.1208) to become members of that 
system.
    (b) What an absolute coverage group consists of. An absolute 
coverage group consists of one of the following employee groups:
    (1) State employees performing services in connection with the 
State's governmental functions;
    (2) State employees performing services in connection with a single 
proprietary function of the State;
    (3) Employees of a State's political subdivision performing services 
in connection with that subdivision's governmental functions;
    (4) Employees of a State's political subdivision performing services 
in connection with a single proprietary function of the subdivision;
    (5) Civilian employees of a State's National Guard units; and
    (6) Individuals employed under an agreement between a State and the 
U.S. Department of Agriculture as agricultural products inspectors.
    (c) Designated coverage groups. A State may provide coverage for 
designated (i.e., selected) absolute coverage groups of the State or a 
political subdivision. When coverage is extended to these designated 
groups, the State must specifically identify each group as a designated 
absolute coverage group and furnish the effective date of coverage and 
any optional exclusion(s) for each group. Where a State has provided 
coverage to designated absolute coverage groups, the State may, by 
modifying its agreement, extend that coverage to any absolute coverage 
group in the State.



Sec. 404.1206  Retirement system coverage groups.

    (a) General. Section 218(d) of the Act authorizes coverage of 
services of employees in positions under a retirement system. For 
purposes of obtaining coverage, a system may be considered a separate 
retirement system authorized by sections 218(d)(6) (A) or (B) or 218(l) 
of the Act. Under these sections of the Act a State may designate the 
positions of any one of the following groupings of employees as a 
separate retirement system:
    (1) The entire system;
    (2) The employees of the State under the system;
    (3) The employees of each political subdivision in the State under 
the system;
    (4) The employees of the State and the employees of any one or more 
of the State's political subdivisions;
    (5) The employees of any combination of the State's political 
subdivisions;
    (6) The employees of each institution of higher learning, including 
junior colleges and teachers colleges;
    (7) The employees of a hospital which is an integral part of a 
political subdivision; or
    (8) The employees in police officers' positions or firefighters' 
positions, or both.

[[Page 299]]


If State law requires a State or political subdivision to have a 
retirement system, it is considered established even though no action 
has been taken to establish the system.
    (b) Retirement system coverage groups. A retirement system coverage 
group is a grouping of employees in positions under a retirement system. 
Employees in positions under the system have voted for coverage for the 
system by referendum and a State has provided coverage by agreement or 
modification of its agreement. It is not a permanent grouping. It exists 
only for referendum and coverage purposes and is not a separate group 
for reporting purposes. Once coverage has been obtained, the retirememt 
system coverage group becomes part of one of the absolute coverage 
groups described in Sec. 404.1205(b).
    (c) What a retirement system coverage group consists of. A 
retirement system coverage group consists of:
    (1) Current employees--all employees whose services are not already 
covered by the agreement, who are in positions covered by the same 
retirement system on the date an agreement or modification of the 
agreement is made applicable to the system;
    (2) Future employees--all employees in positions brought under the 
system after an agreement or modification of the agreement is signed; 
and
    (3) Other employees--all employees in positions which had been under 
the retirement system but which were not under the retirement system 
when the group was covered (including ineligibles who had been 
optionally excluded from coverage under section 218(c)(3)(B) of the 
Act).
    (d) Referendum procedures. Prior to signing the agreement or 
modification, the governor or an official of the State named by the 
governor (for an interstate instrumentality, its chief executive 
officer) must certify to the Secretary that:
    (1) All eligible employees were given at least 90 days' notice of 
the referendum;
    (2) All eligible employees were given an opportunity to vote in the 
referendum;
    (3) Only eligible employees were permitted to vote in the 
referendum;
    (4) Voting was by secret written ballot on the question of whether 
service in positions covered by the retirement system should be included 
under an agreement;
    (5) The referendum was conducted under the supervision of the 
governor or agency or individual named by him; and
    (6) A majority of the retirement system's eligible employees voted 
for coverage under an agreement.

The State has two years from the date of a favorable referendum to enter 
into an agreement or modification extending coverage to the retirement 
system coverage group. If the referendum is unfavorable, another 
referendum cannot be held until at least one year after that unfavorable 
referendum.
    (e) Who is covered. If a majority of the eligible employees in a 
retirement system vote for coverage, all employees in positions in that 
retirement system become covered.
    (f) Coverage of employees in positions under more than one 
retirement system. (1) If an employee occupies two or more positions 
each of which is under a different retirement system, the employee's 
coverage in each position depends upon the coverage extended to each 
position under each system.
    (2) If an employee is in a single position which is under more than 
one retirement system (because the employee's occupancy of that position 
permits her or him to become a member of more than one retirement 
system), the employee is covered when the retirement system coverage 
group including her or his position is covered under an agreement unless 
(A) he or she is not a member of the retirement system being covered and 
(B) he or she is a member of a retirement system which has not been 
covered. This rule also applies to the coverage of services in police 
officers' and firefighters' positions in States and interstate 
instrumentalities as discussed in Sec. 404.1212(c).

[53 FR 32976, Aug. 29, 1988, as amended at 61 FR 38367, July 24, 1996]



Sec. 404.1207  Divided retirement system coverage groups.

    (a) General. Under section 218(d)(6)(C) of the Act certain States 
and under

[[Page 300]]

section 218(g)(2) of the Act all interstate instrumentalities may divide 
a retirement system based on whether the employees in positions under 
that system want coverage. The States having this authority are Alaska, 
California, Connecticut, Florida, Georgia, Hawaii, Illinois, 
Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, 
North Dakota, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, 
Washington, and Wisconsin.
    (b) Divided retirement system coverage group. A divided retirement 
system coverage group is a grouping under a retirement system of 
positions of members of the system who voted for coverage and positions 
of individuals who become members of the system (the ``yes'' group), and 
positions of members of the system who did not elect coverage (the 
``no'' group) and ineligible employees (see Sec. 404.1208). For purposes 
of this section for groups covered after 1959, the term ``member'' also 
includes individuals who have an option to become members of the 
retirement system but have not done so. The position of a member in the 
``no'' group can be covered if, within two years after the agreement or 
modification extending coverage to the ``yes'' group is executed, the 
State provides an opportunity to transfer the position to the covered 
``yes'' group and the individual occupying the position makes a written 
request for the transfer. The members of the ``no'' group can also be 
covered if, by referendum, a majority of them vote for coverage. If the 
majority votes for coverage, all positions of the members of the ``no'' 
group become covered. There is no further subdivision of the ``no'' 
group into those who voted for and those who voted against coverage. If 
the State requests, the ineligibles in the ``no'' group may become part 
of the ``yes'' group and have their services covered.
    (c) Referendum procedures. To divide a retirement system, the State 
must conduct a referendum among the system's employees. If the system is 
to be divided, the governor or an individual named by him must certify 
to the Secretary that:
    (1) The referendum was held by written ballot on the question of 
whether members of a retirement system wish coverage under an agreement;
    (2) All members of the retirement system at the time the vote was 
held had the opportunity to vote;
    (3) All members of the system on the date the notice of the 
referendum was issued were given at least 90 days' notice regarding the 
referendum;
    (4) The referendum was conducted under the supervision of the 
governor or agency or person designated by him; and
    (5) The retirement system was divided into two parts, one composed 
of positions of members of the system who voted for coverage and the 
other composed of the remaining positions under the retirement system.

After the referendum the State may include those members who chose 
coverage under its agreement as a retirement system coverage group. The 
State has two years from the date of the referendum to enter into an 
agreement or modification extending coverage to that group.



Sec. 404.1208  Ineligible employees.

    (a) Definition. An ineligible is an employee who, on first occupying 
a position under a retirement system, is not eligible for membership in 
that system because of a personal disqualification like age, physical 
condition, or length of service.
    (b) Coverage of ineligible employees. A State may, in its agreement 
or any modification to the agreement, provide coverage for the services 
of ineligible employees in one of three ways:
    (1) As part of or as an addition to an absolute coverage group;
    (2) As part of a retirement system coverage group covering all 
positions under the retirement system; or
    (3) As part of or as an addition to a retirement system coverage 
group composed of those members in positions in a retirement system who 
chose coverage.



Sec. 404.1209  Mandatorily excluded services.

    Some services are mandatorily excluded from coverage under a State's 
agreement. They are:

[[Page 301]]

    (a) Services of employees who are hired to relieve them from 
unemployment;
    (b) Services performed in an institution by a patient or inmate of 
the institution;
    (c) Transportation service subject to the Federal Insurance 
Contributions Act;
    (d) Certain emergency services in case of fire, storm, snow, 
volcano, earthquake, flood or other similar emergency; and
    (e) Services other than agricultural labor or student services which 
would be excluded from coverage if performed for a private employer.
    (f) Services covered under section 210(a)(7)(F) of the Act. (See 
Sec. 404.1200(b).)

[53 FR 32976, Aug. 29, 1988, as amended at 57 FR 59911, Dec. 17, 1992]



Sec. 404.1210  Optionally excluded services.

    Certain services and positions may, if the State requests it, be 
excluded from coverage. These exclusions may be applied on a statewide 
basis or selectively by coverage groups. They are:
    (a) Services in any class or classes of elective positions;
    (b) Services in any class or classes of part-time positions;
    (c) Services in any class or classes of positions where the pay is 
on a fee basis;
    (d) Any agricultural labor or student services which would also be 
excluded if performed for a private employer; and
    (e) For modifications executed after 1994, services performed by 
election officials or election workers if the payments for those 
services in a calendar year are less than $1000 for calendar years after 
1994 and before 2000, or, for calendar years after 1999, are less than 
the $1000 base amount as adjusted pursuant to section 218(c)(8)(B) of 
the Act to reflect changes in wages in the economy. We will publish this 
adjustment of the $1000 base amount in the Federal Register on or before 
November 1 preceding the year for which the adjustment is made.

[53 FR 32976, Aug. 29, 1988, as amended at 61 FR 38367, July 24, 1996]



Sec. 404.1211  Interstate instrumentalities.

    For Social Security coverage purposes under section 218 of the Act, 
interstate instrumentalities are treated, to the extent practicable, as 
States, that is:
    (a) They must be legally authorized to enter into an agreement with 
the Secretary;
    (b) They are subject to the same rules that are applied to the 
States;
    (c) They may divide retirement systems and cover only the positions 
of members who want coverage; and
    (d) They may provide coverage for firefighters and police officers 
in positions under a retirement system.

[53 FR 32976, Aug. 29, 1988, as amended at 61 FR 38368, July 24, 1996]



Sec. 404.1212   Police officers and firefighters.

    (a) General. For Social Security coverage purposes under section 218 
of the Act, a police officer's or firefighter's position is any position 
so classified under State statutes or court decisions. Generally, these 
positions are in the organized police and fire departments of 
incorporated cities, towns, and villages. In most States, a police 
officer is a member of the ``police'' which is an organized civil force 
for maintaining order, preventing and detecting crimes, and enforcing 
laws. The terms ``police officer'' and ``firefighter'' do not include 
services in positions which, although connected with police and 
firefighting functions, are not police officer or firefighter positions.
    (b) Providing coverage. A State may provide coverage of:
    (1) Police officers' and firefighters' positions not under a 
retirement system as part of an absolute coverage group; or
    (2) Police officers' of firefighters' positions, or both, as part of 
a retirement system coverage group.
    (c) Police officers and firefighters in positions under a retirement 
system. All States and interstate instrumentalities may provide coverage 
for employees in police officers' or firefighters' positions, or both, 
which are under a retirement system by following the majority vote 
referendum procedures in

[[Page 302]]

Sec. 404.1206(d). In addition, all interstate instrumentalities and the 
States listed in Sec. 404.1207 may use the desire for coverage 
procedures described in Sec. 404.1207.

[61 FR 38368, July 24, 1996]

         How Coverage Under Agreements Is Obtained and Continues



Sec. 404.1214  Agreement for coverage.

    (a) General. A State may enter into a written agreement with the 
Secretary to provide for Social Security coverage for its employees or 
the employees of one or more of its political subdivisions. An 
interstate instrumentality may enter into a similar agreement for its 
employees. These agreements cover employees in groups of positions or by 
types of services rather than the individual employees.
    (b) Procedures. A State or interstate instrumentality may request 
coverage by submitting to SSA a proposed written agreement for the 
desired coverage.
    (c) Authority to enter into an agreement for coverage--(1) Federal 
law. Section 218(a) of the Act requires the Secretary to enter into an 
agreement, at the request of the State, to extend Social Security 
coverage to the State's employees or those of its political 
subdivisions. Section 218(g) authorizes the Secretary to enter into an 
agreement, at the request of an interstate instrumentality, to extend 
Social Security coverage to the employees of the interstate 
instrumentality.
    (2) State law. State law must authorize a State or an interstate 
instrumentality to enter into an agreement with the Secretary for Social 
Security coverage.
    (d) Provisions of the agreement. The agreement must include:
    (1) A description of the specific services to be covered and 
excluded;
    (2) The State's promise to pay, to the Secretary of the Treasury, 
contributions equal to the sum of the taxes which would be required 
under the Federal Insurance Contributions Act from employers and 
employees if the employment were in the private sector;
    (3) The State's promise to comply with the regulations the Secretary 
prescribes for carrying out the provisions of section 218 of the Act; 
and
    (4) Identification of the political subdivisions, coverage groups, 
or services being covered and the services that are excluded.

The agreement must be signed by the authorized State or interstate 
instrumentality official and the Secretary or his or her designee.
    (e) Effective date. The agreement must specify an effective date of 
coverage. However, the effective date cannot be earlier than the last 
day of the sixth calendar year preceding the year in which the agreement 
is mailed or delivered by other means to the Secretary. The agreement is 
effective after the effective date.
    (f) Applicability of agreement. The agreement establishes the 
continuing relationship between the Secretary and the State or 
interstate instrumentality except as it is modified (see Secs. 404.1215-
404.1217).

    Effective Date Note:  At 53 FR 32976, Aug. 29, 1988, Sec. 404.1214 
was revised, effective Aug. 29, 1988 with the exception of paragraph 
(d). Section 404.1214(d) contains reporting and recordkeeping 
requirements and will become effective upon approval by the Office of 
Management and Budget. A notice announcing the effective date will be 
published in the Federal Register.



Sec. 404.1215  Modification of agreement.

    (a) General. A State or interstate instrumentality may modify in 
writing its agreement, for example, to:
    (1) Exclude, in limited situations, employee services or positions 
previously covered;
    (2) Include additional coverage groups; or
    (3) Include as covered services:
    (i) Services of covered employees for additional retroactive periods 
of time; and
    (ii) Services previously excluded from coverage.
    (b) Controlling date for retroactive coverage. A State may specify 
in the modification a date to make all individuals in the coverage group 
who were in an employment relationship on that date eligible for 
retroactive coverage. This date is known as the controlling date for 
retroactive coverage. It can be no earlier than the date the 
modification is mailed or otherwise delivered to the Secretary nor can 
it be later than the

[[Page 303]]

date the modification is signed by the Secretary. If the State does not 
designate a controlling date, the date the modification is signed by the 
Secretary is the controlling date.
    (c) Conditions for modification. The provisions of section 218 of 
the Act which apply to the original agreement also apply to a 
modification to the agreement.
    (d) Effective date. Generally, a modification must specify an 
effective date of coverage. However, the effective date cannot be 
earlier than the last day of the sixth calendar year preceding the year 
in which the modification is mailed or delivered by other means to the 
Secretary. The modification is effective after the effective date.



Sec. 404.1216  Modification of agreement to correct an error.

    (a) General. If an agreement or modification contains an error, the 
State may correct the error by a subsequent modification to the 
agreement. For example, the agreement or modification incorrectly lists 
a covered service as an optionally excluded service or shows an improper 
effective date of coverage. In correcting this type of error, which 
affects the extent of coverage, the State must submit a modification 
along with evidence to establish that the error occurred. However, a 
modification is not needed to correct minor typographical or clerical 
errors. For example, an agreement or modification incorrectly lists 
School District No. 12 as School District No. 13. This type of error can 
be corrected based on a written request from the appropriate official of 
the State or interstate instrumentality.
    (b) Correction of errors involving erroneous reporting to the IRS--
for wages paid prior to 1987. Where a State or political subdivision 
makes reports and payments to the Internal Revenue Service under the 
provisions of the Federal Insurance Contributions Act which apply to 
employees in private employment in the mistaken belief that this action 
would provide coverage for its employees, the State may provide the 
desired coverage for those same periods of time by a subsequent 
modification to its agreement. If State law permits, the State may make 
that coverage effective with the first day of the first period for which 
the erroneous reports and payments were made. (In this instance, the 
limitation on retroactive coverage described in Sec. 404.1215(d) is not 
applicable.) Where the State does not want to provide such retroactive 
coverage or is not permitted to do so by State law, the State may 
provide the coverage for the affected coverage group as of a specified 
date (Sec. 404.1215(b)). The coverage would then apply to the services 
performed by individuals as members of the coverage group
    (1) Who were employees on that date, and
    (2) Whose wages were erroneously reported to IRS, and
    (3) For whom a refund of FICA taxes has not been obtained at the 
time the Secretary executes the modification.

    Effective Date Note:  At 53 FR 32976, Aug. 29, 1988, Sec. 404.1216 
was revised, effective August 29, 1988 with the exception of paragraph 
(a). Section 404.1216(a) contains reporting and recordkeeping 
requirements and will become effective upon approval by the Office of 
Management and Budget. A notice announcing the effective date will be 
published in the Federal Register.



Sec. 404.1217  Continuation of coverage.

    The coverage of State and local government employees continues as 
follows:
    (a) Absolute coverage group. Generally, the services of an employee 
covered as a part of an absolute coverage group (see Sec. 404.1205) 
continue to be covered indefinitely. A position covered as a part of an 
absolute coverage group continues to be covered even if the position 
later comes under a retirement system. This includes policemen's and 
firemen's positions which are covered with an absolute coverage group.
    (b) Retirement system coverage group. Generally, the services of 
employees in positions covered as a part of a retirement system coverage 
group continue to be covered indefinitely. For a retirement system 
coverage group made up of members who chose coverage, a position 
continues to be covered until it is removed from the retirement system 
and is no longer occupied by a member who chose coverage or by a new 
member of the system. Coverage is not terminated because the positions 
are later covered under additional retirement

[[Page 304]]

systems or removed from coverage under a retirement system, or because 
the retirement system is abolished with respect to the positions. 
However, if the retirement system has been abolished, newly created or 
reclassified positions or positions in a newly created political 
subdivision cannot be covered as a part of the retirement system 
coverage group. If the retirement system is not abolished, a newly 
created or reclassified position is a part of the coverage group if the 
position would have been a part of the group had it existed earlier. If 
the retirement system coverage group is made up of members who chose 
coverage, the newly created or reclassified position is a part of the 
coverage group if it is occupied by a member who chose coverage or by a 
new member.



Sec. 404.1218  Resumption of coverage.

    Before April 20, 1983, an agreement could be terminated in its 
entirety or with respect to one or more coverage groups designated by 
the State. Coverage of any coverage group which has been previously 
terminated may be resumed by a modification to the agreement.



Sec. 404.1219  Dissolution of political subdivision.

    If a political subdivision whose employees are covered under the 
agreement is legally dissolved, the State shall give us satisfactory 
evidence of its dissolution or nonexistence. The evidence must establish 
that the entity is not merely inactive or dormant, but that it no longer 
legally exists. We will notify the State whether the evidence is 
satisfactory.

                    How to Identify Covered Employees



Sec. 404.1220  Identification numbers.

    (a) State and local government. When a State submits a modification 
to its agreement under section 218 of the Act, SSA will assign a special 
identification number to each political subdivision included in that 
modification. SSA will inform the State of the special identification 
number(s) by sending a Form SSA-214-CD, ``Notice of Identifying 
Number,'' to the State. These numbers are assigned only for State 
bookkeeping purposes unless coverage is extended to periods prior to 
1987. Then, the special number will be assigned and used for reporting 
the pre-1987 wages to SSA. The special number will also be assigned to 
an interstate instrumentality if pre-1987 coverage is obtained and SSA 
will send a Form SSA-214-CD to the interstate instrumentality to notify 
it of the number assigned.
    (b) Coverage group number for coverage groups. If a State's 
agreement provides coverage for a State or a political subdivision based 
on designated proprietary or governmental functions, the State shall 
furnish a list of those groups. The list shall identify each designated 
function and the title and business address of the official responsible 
for filing each designated group's wage report. SSA assigns a coverage 
group number to each designated group based on the information furnished 
in the list.
    (c) Unit numbers for payroll record units. SSA assigns, at a State's 
request, unit numbers to payroll record units within a State or 
political subdivision. When a State requests separate payroll record 
unit numbers, it must furnish the following:
    (1) The name of each payroll record unit for the coverage group; and
    (2) The title and business address of the official responsible for 
each payroll unit.
    (d) Unit numbers where contribution amounts are limited--for wages 
paid prior to 1987. An agreement, or modification of an agreement, may 
provide for the computation of contributions as prescribed in 
Sec. 404.1256 for some employees of a political subdivision. In this 
situation, SSA assigns special unit numbers to the political subdivision 
to identify those employees. SSA does not assign a special unit number 
to a political subdivision in which the contributions for all employees 
are computed as prescribed in Sec. 404.1256.
    (e) Use. For wages paid prior to 1987, the employer shall show the 
appropriate SSA-issued identifying number, including any coverage group 
or payroll record unit number, on records, reports, returns, and claims 
to report wages, adjustments, and contributions.

[53 FR 32976, Aug. 29, 1988, as amended at 60 FR 42433, Aug. 16, 1995]

[[Page 305]]


    Effective Date Note:  At 53 FR 32976, Aug. 29, 1988, Sec. 404.1220 
was revised. This amendment contains reporting and recordkeeping 
requirements and will become effective upon approval by the Office of 
Management and Budget. A notice announcing the effective date will be 
published in the Federal Register.

                  What Records of Coverage Must Be Kept



Sec. 404.1225  Records--for wages paid prior to 1987.

    (a) Who keeps the records. Every State which enters into an 
agreement shall keep, or require the political subdivisions whose 
employees are included under its agreement to keep, accurate records of 
all remuneration (whether in cash or in a medium other than cash) paid 
to employees performing services covered by that agreement. These 
records shall show for each employee:
    (1) The employee's name, address, and Social Security number;
    (2) The total amount of remuneration (including any amount withheld 
as contributions or for any other reason) and the date the remuneration 
was paid and the period of services covered by the payment;
    (3) The amount of remuneration which constitutes wages (see 
Sec. 404.1041 for wages and Secs. 404.1047-404.1059 for exclusions from 
wages); and
    (4) The amount of the employee's contribution, if any, withheld or 
collected, and if collected at a time other than the time such payment 
was made, the date collected. If the total remuneration (paragraph 
(a)(2) of this section) and the amount which is subject to contribution 
(paragraph (a)(3) of this section) are not equal, the reason shall be 
stated.

The State shall keep copies of all returns, reports, schedules, and 
statements required by this subpart, copies of claims for refund or 
credit, and copies of documents about each adjustment made under 
Sec. 404.1265 or Sec. 404.1271 as part of its records. These records may 
be maintained by the State or, for employees of a political subdivision, 
by the political subdivision. Each State shall use forms and systems of 
accounting as will enable the Secretary to determine whether the 
contributions for which the State is liable are correctly figured and 
paid.
    (b) Place and period of time for keeping records. All records 
required by this section shall:
    (1) Be kept at one or more convenient and safe locations accessible 
to reviewing personnel (see Sec. 404.1232(a));
    (2) Be available for inspection by reviewing personnel at any time; 
and
    (3) Be maintained for at least four years from the date of the event 
recorded. (This four-year requirement applies regardless of whether, in 
the meantime, the employing entity has been legally dissolved or, before 
April 20, 1983, the agreement was terminated in its entirety or in 
part.)

    Effective Date Note:  At 53 FR 32976, Aug. 29, 1988, Sec. 404.1225 
was revised. This amendment contains reporting and recordkeeping 
requirements and will become effective upon approval by the Office of 
Management and Budget. A notice announcing the effective date will be 
published in the Federal Register.

            Review of Compliance By State With Its Agreement



Sec. 404.1230  Onsite review program.

    To ensure that the services of employees covered by a State's 
agreement are reported and that those employees receive Social Security 
credit for their covered earnings, we periodically review the source 
records upon which a State's contribution returns and wage reports are 
based. These reviews are designed:
    (a) To measure the effectiveness of the State's systems for ensuring 
that all wages for those employees covered by its agreement are reported 
and Social Security contributions on those wages are paid;
    (b) To detect any misunderstanding of coverage or reporting errors 
and to advise the State of the corrective action it must take; and
    (c) To find ways to improve a State's recordkeeping and reporting 
operations for the mutual benefit of the State and SSA.



Sec. 404.1231  Scope of review.

    The onsite review focuses on four areas:
    (a) State's controls and recordkeeping--to assess a State's systems

[[Page 306]]

for assuring timely receipt, correctness, and completeness of wage 
reports and contribution returns;
    (b) Instruction, education, and guidance a State provides local 
reporting officials--to assess a State's systems for assuring on a 
continuing basis that all reporting officials and their staffs have the 
necessary instructions, guidelines, and training to meet the State's 
coverage, reporting and recordkeeping requirements;
    (c) Compliance by reporting officials--to assess a State's systems 
for assuring that the reporting officials in the State have adequate 
recordkeeping procedures, are properly applying the appropriate 
provisions of the State's agreement, and are complying with reporting 
requirements; and
    (d) Quality control with prompt corrective action--to assess a 
State's systems for assuring that its reports and those of its political 
subdivisions are correct, for identifying the causes and extent of any 
deficiencies, and for promptly correcting these deficiencies.



Sec. 404.1232  Conduct of review.

    (a) Generally, SSA staff personnel conduct the onsite review. 
Occasionally, members of the Office of the Inspector General, Department 
of Health and Human Services (HHS), may conduct or participate in the 
review.
    (b) The review is done when considered necessary by SSA or HHS or, 
if practicable, in response to a State's specific request for a review.
    (c) All pertinent source records prepared by the State or its 
political subdivisions are reviewed, on site, to verify the wage reports 
and contribution returns. We may review with the appropriate employees 
in a subdivision those source records and how the information is 
gathered, processed, and maintained. We notify the State's Social 
Security Administrator when we plan to make the review and request her 
or him to make the necessary arrangements.
    (d) The review is a cooperative effort between SSA and the States to 
improve the methods for reporting and maintaining wage data to carry out 
the provisions of the agreement.



Sec. 404.1234  Reports of review's findings.

    We provide the State Social Security Administrator with reports of 
the review's findings. These reports may contain coverage questions 
which need development and resolution and reporting errors or omissions 
for the State to correct promptly. These reports may also recommend 
actions the State can take to improve its information gathering, 
recordkeeping, and wage reporting systems, and those of its political 
subdivisions.

   How to Report Wages and Contributions--for Wages Paid Prior to 1987



Sec. 404.1237  Wage reports and contribution returns--general--for wages paid prior to 1987.

    (a) Wage reports. Each State shall report each year the wages paid 
each covered employee during that year. With the wage report the State 
shall also identify, as prescribed by SSA, each political subdivision by 
its assigned identification number and, where appropriate, any coverage 
group or payroll record unit number assigned.
    (b) Wage reports of remuneration for agricultural labor. A State may 
exclude from its agreement any services of employees the remuneration 
for which is not wages under section 209(h)(2) of the Act. Section 
209(h)(2) excludes as wages the cash remuneration an employer pays 
employees for agricultural labor which is less than $150 in a calendar 
year, or, if the employee performs the agricultural labor for the 
employer on less than 20 days during a calendar year, the cash 
remuneration computed on a time basis. If a State does exclude the 
services and the individual meets the cash-pay or 20-day test described 
in Sec. 404.1056, the State shall identify on the wage report and on any 
adjustment report each individual performing agricultural labor and the 
amount paid to her or him.
    (c) Contribution returns. The State shall forward the contribution 
return as set out in Sec. 404.1249(b). It shall make contribution 
payments under Sec. 404.1262.

    Effective Date Note:  At 53 FR 32976, Aug. 29, 1988, Sec. 404.1237 
was revised. This amendment contains reporting and recordkeeping 
requirements and will become effective upon approval by the Office of 
Management and

[[Page 307]]

Budget. A notice announcing the effective date will be published in the 
Federal Register.



Sec. 404.1239  Wage reports for employees performing services in more than one coverage group--for wages paid prior to 1987.

    (a) Employee of State in more than one coverage group. If a State 
employee is in more than one coverage group, the State shall report the 
employee's total wages, up to the annual wage limitations in 
Sec. 404.1047, as though the wages were paid by only one of the coverage 
groups.
    (b) Employee of political subdivision in more than one coverage 
group. If an employee of a political subdivision is in more than one 
coverage group, the State shall report the employee's total wages, up to 
the annual wage limitations in Sec. 404.1047, as though the wages were 
paid by only one of the coverage groups.
    (c) Employee of State and one or more political subdivisions. If an 
individual performs covered services as an employee of the State and an 
employee of one or more political subdivisions and the State agreement 
does not provide for limiting contributions under section 218(e)(2) of 
the Act as it read prior to the enactment of Pub. L. 99-509, the State 
and each political subdivision shall report the amount of covered wages 
it paid the employee up to the annual wage limitations in Sec. 404.1047.
    (d) Employee of more than one political subdivision. If an 
individual performs covered services as an employee of more than one 
political subdivision and the State agreement does not provide for 
limiting contributions under section 218(e)(2) of the Act as it read 
prior to the enactment of Pub. L. 99-509, each political subdivision 
shall report the covered wages it paid the employee up to the annual 
wage limitations in Sec. 404.1047.
    (e) Employee performing covered services for more than one political 
entity where section 218(e)(2) of the Act is applicable. If an agreement 
provides for limiting contributions under section 218(e)(2) of the Act 
as it read prior to the enactment of Pub. L. 99-509, the reporting 
officials compute the total amount of wages paid the employee by two or 
more political subdivisions of a State, or a State and one or more of 
its political subdivisions, which were subject to section 218(e)(2) of 
the Act. The State reports the amount of wages paid up to the annual 
wage limitations in Sec. 404.1047. The employee is treated as having 
only one employer. If the employee also had wages not subject to section 
218(e)(2) of the Act, the State shall report those wages separately.

    Effective Date Note:  At 53 FR 32976, Aug. 29, 1988, Sec. 404.1239 
was revised. This amendment contains reporting and recordkeeping 
requirements and will become effective upon approval by the Office of 
Management and Budget. A notice announcing the effective date will be 
published in the Federal Register.



Sec. 404.1242  Back pay.

    (a) Back pay defined. Back pay is pay received in one period of time 
which would have been paid in a prior period of time except for a 
wrongful or improper action taken by an employer. It includes pay made 
under Federal or State laws intended to create an employment 
relationship (including situations where there is unlawful refusal to 
hire) or to protect an employee's right to wages.
    (b) Back pay under a statute. Back pay under a statute is a payment 
by an employer following an award, determination or agreement approved 
or sanctioned by a court or administrative agency responsible for 
enforcing a Federal or State statute protecting an employee's right to 
employment or wages. Examples of these statutes are:
    (1) National Labor Relations Act or a State labor relations act;
    (2) Federal or State laws providing reemployment rights to veterans;
    (3) State minimum wage laws; and
    (4) Civil Rights Act of 1964.

Payments based on legislation comparable to and having a similar effect 
as those listed in this paragraph may also qualify as having been made 
under a statute. Back pay under a statute, excluding penalties, is wages 
if paid for covered employment. It is allocated to the periods of time 
in which it should have been paid if the employer had not violated the 
statute. For backpay awards affecting periods prior to 1987, a State 
must fill a wage report and pay

[[Page 308]]

the contributions due for all periods involved in the back pay award 
under the rules applicable to those periods.
    (c) Back pay not under a statute. Where the employer and the 
employee agree on the amount payable without any award, determination or 
agreement approved or sanctioned by a court or administrative agency, 
the payment is not made under a statute. This back pay cannot be 
allocated to prior periods of time but must be reported by the employer 
for the period in which it is paid.

    Effective Date Note:  At 53 FR 32976, Aug. 29, 1988, Sec. 404.1242 
was revised. This amendment contains reporting and recordkeeping 
requirements and will become effective upon approval by the Office of 
Management and Budget. A notice announcing the effective date will be 
published in the Federal Register.



Sec. 404.1243  Use of reporting forms--for wages paid prior to 1987.

    (a) Submitting wage reports. In the form and manner required by SSA, 
a State shall submit an annual report of the covered wages the State and 
its political subdivisions paid their employees. Any supplemental, 
adjustment, or correctional wage report filed is considered a part of 
the State's wage report.
    (b) Correction of errors. If a State fails to report or incorrectly 
reports an employee's wages on its wage report, the State shall submit a 
corrective report as required by SSA.
    (c) Reporting on magnetic tape or other media. After approval by 
SSA, a State may substitute magnetic tape or other media for any form 
required for submitting a report or reporting information.

    Effective Date Note:  At 53 FR 32976, Aug. 29, 1988, Sec. 404.1243 
was revised. This amendment contains reporting and recordkeeping 
requirements and will become effective upon approval by the Office of 
Management and Budget. A notice announcing the effective date will be 
published in the Federal Register.



Sec. 404.1247  When to report wages--for wages paid prior to 1987.

    A State shall report wages for the calendar year in which they were 
actually paid. If the wages were constructively paid in a prior calendar 
year, the wages shall be reported for the prior year (see 
Sec. 404.1042(b) regarding constructive payment of wages).

    Effective Date Note:  At 53 FR 32976, Aug. 29, 1988, Sec. 404.1247 
was revised. This amendment contains reporting and recordkeeping 
requirements and will become effective upon approval by the Office of 
Management and Budget. A notice announcing the effective date will be 
published in the Federal Register.



Sec. 404.1249  When and where to make deposits of contributions and to file contribution returns and wage reports--for wages paid prior to 1987.

    (a) Deposits of contributions. The State shall pay contributions in 
the manner required in Sec. 404.1262. (For failure to make deposits when 
due see Sec. 404.1265.) The contribution payment is considered made when 
received by the appropriate Federal Reserve bank or branch (see 
Sec. 404.1262). Except as provided in paragraphs (b) (2) and (3) and 
paragraph (c) of this section, contributions are due and payable as 
follows:
    (1) For wages paid before July 1, 1980. Contribution payments for 
wages paid in a calendar quarter are due on the 15th day of the second 
month following the end of the calendar quarter during which the wages 
were paid.
    (2) For wages paid beginning July 1, 1980, and before January 1984. 
Contribution payments for wages paid in a calendar month are due within 
the thirty day period following the last day of that month.
    (3) For wages paid after December 1983 and prior to 1987. 
Contribution payments for wages paid in the first half of a calendar 
month are due on the last day of that month. Contribution payments for 
wages paid in the second half of that calendar month are due on the 
fifteenth day of the next month. (For purposes of this section, the 
first half of a calendar month is the first 15 days of that month and 
the second half is the remainder of that month.)
    (b) Contribution returns and wage reports--(1) Where to be filed. 
The State shall file the original copies of all contribution returns, 
wage reports, and adjustment reports with the SSA.
    (2) When to be filed--(i) For years prior to execution of agreement 
or modification. If an agreement or modification provides for the 
coverage of employees for

[[Page 309]]

periods prior to 1987, the State shall pay contributions due and shall 
file wage reports with SSA for these periods within 90 days after the 
date of the notice that the Secretary has signed the agreement or 
modification.
    (ii) For year of execution of agreement or modification. If the 
agreement or modification provides for the coverage of employees for the 
year of execution of the agreement or modification, the State may, 
within 90 days after the date of the notice that the Secretary has 
signed the agreement or modification, submit a single contribution 
return and pay all contributions due for the following periods:
    (A) The month in which the agreement or modification was signed;
    (B) Any prior months in that year; and
    (C) Any subsequent months before January 1984 (half-months after 
December 1983) whose contribution return and payment due date is within 
this 90 day period. The State shall file wage reports for that year by 
February 28 of the year following the date of execution or within 90 
days of the date of the notice, whichever is later.
    (iii) For years after execution of agreement or modification. Except 
as described in paragraph (b)(2)(ii) of this section, when the State 
pays its contributions under paragraph (a) of this section, it shall 
also file a contribution return. The State shall file the wage report 
for any calendar year after the year of execution of the agreement or 
modification by February 28 of the following calendar year.
    (iv) For good cause shown, and upon written request by a State, the 
Secretary may allow additional time for filing the reports and paying 
the related contributions described in paragraphs (b)(2)(i) and 
(b)(2)(ii) of this section.
    (3) Due date is on a weekend, legal holiday or Federal nonworkday. 
If the last day for filing the wage report falls on a weekend, legal 
holiday or Federal nonworkday, the State may file the wage report on the 
next Federal workday. If the due date for paying contributions for the 
wages paid in a period (as specified in paragraph (a) of this section) 
falls on a weekend, legal holiday or Federal nonworkday, the State shall 
pay the contributions and shall file the contribution return no later 
than--
    (i) The preceding Federal workday for wages paid in July 1980 
through December 1983;
    (ii) The next Federal workday for wages paid before July 1980 or 
after December 1983.
    (4) Submitting reports and payments. When submitting the 
contribution returns or wage reports the State shall release them in 
time to reach SSA by the due date. When submitting contribution payments 
as described in Sec. 404.1262, the State shall release the payments in 
time to reach the appropriate Federal Reserve bank or branch by the due 
date. In determining when to release any returns, reports, or payments 
the State shall provide sufficient time for them to timely reach their 
destination under the method of submission used, e.g., mail or 
electronic transfer of funds.
    (c) Payments by third party on account of sickness or accident 
disability. Where a third party makes a payment to an employee on 
account of sickness or accident disability which constitutes wages for 
services covered under a State agreement, the wages will be considered, 
for purposes of the deposits required under this section, to have been 
paid to the employee on the date on which the employer receives notice 
from the third party of the amount of the payment. No interest will be 
assessed for failure to make a timely deposit of contributions due on 
such wages for which a deposit was made after December 1981 and before 
July 1982, to the extent that the failure to make the deposit timely is 
due to reasonable cause and not willful neglect.

    Effective Date Note:  At 53 FR 32976, Aug. 29, 1988, Sec. 404.1249 
was revised. This amendment contains reporting and recordkeeping 
requirements and will become effective upon approval by the Office of 
Management and Budget. A notice announcing the effective date will be 
published in the Federal Register.



Sec. 404.1251  Final reports--for wages paid prior to 1987.

    If a political subdivision is legally dissolved, the State shall 
file a final report on that entity. The report shall

[[Page 310]]

include each coverage group whose existence ceases with that of the 
entity. It shall:
    (a) Be marked ``final report'';
    (b) Cover the period during which final payment of wages subject to 
the agreement is made; and
    (c) Indicate the last date wages were paid.

With the final report, the State shall submit a statement showing the 
title and business address of the State official responsible for keeping 
the State's records and of each State and local official responsible for 
keeping the records for each coverage group whose existence is ended. 
The State shall also identify, as prescribed by SSA, each political 
subdivision by its assigned number and, where applicable, any coverage 
group or payroll record unit number assigned.

    Effective Date Note:  At 53 FR 32976, Aug. 29, 1988, Sec. 404.1251 
was revised. This amendment contains reporting and recordkeeping 
requirements and will become effective upon approval by the Office of 
Management and Budget. A notice announcing the effective date will be 
published in the Federal Register.

 What Is a State's Liability for Contributions--for Wages Paid Prior to 
                                  1987



Sec. 404.1255  State's liability for contributions--for wages paid prior to 1987.

    A State's liability for contributions equals the sum of the taxes 
which would be imposed by sections 3101 and 3111 of the Internal Revenue 
Code of 1954, if the services of the employees covered by the State's 
agreement were employment as defined in section 3121 of the Code. The 
State's liability begins when those covered services are performed, for 
which wages are actually or constructively paid to those individuals, 
including wages paid in a form other than cash (see Sec. 404.1041(d)). 
If an agreement is effective retroactively, the State's liability for 
contributions on wages paid during the retroactive period begins with 
the date of execution of the agreement or applicable modification. Where 
coverage of a coverage group has been terminated, the State is liable 
for contributions on wages paid for covered services even if the wages 
are paid after the effective date of termination of coverage.



Sec. 404.1256  Limitation on State's liability for contributions for multiple employment situations--for wages paid prior to 1987.

    (a) Limitation due to multiple employment. Where an individual in 
any calendar year performs covered services as an employee of a State 
and as an employee of one or more political subdivisions of the State, 
or as an employee of more than one political subdivision; and the State 
provides all the funds for payment of the amounts which are equivalent 
to the taxes imposed on the employer under FICA on that individual's 
remuneration for those services; and no political subdivision reimburses 
the State for paying those amounts; the State's agreement or 
modification of an agreement may provide that the State's liability for 
the contributions on that individual's remuneration shall be computed as 
though the individual had performed services in employment for only one 
political subdivision. The State may then total the individual's covered 
wages from all these governmental employers and compute the 
contributions based on that total subject to the wage limitations in 
Sec. 404.1047.
    (b) Identification of employees in multiple employment. An agreement 
or modification of an agreement providing for the computation of 
contributions as described in paragraph (a) of this section shall 
identify the class or classes of employees to whose wages this method of 
computing contributions applies. For example, the State may provide that 
such computation shall apply to the wages paid to all individuals for 
services performed in positions covered by a particular retirement 
system, or to the wages paid to all individuals who are members of any 
two or more coverage groups designated in an agreement or modification. 
The State shall promptly notify SSA if the conditions in paragraph (a) 
of this section are no longer met by any class or classes of employees 
identified in an agreement or modification. In its notification, the 
State shall identify each class of employees and the

[[Page 311]]

date on which the conditions ceased to be met.
    (c) Effective date. In the agreement or modification, the State 
shall provide that the computation of contributions shall apply to wages 
paid after the effective date stated in the agreement or modification. 
That date may be the last day of any calendar year; however, it may be 
no earlier than January 1 of the year in which the agreement or 
modification is submitted to SSA.

 Figuring the Amount of the State's Contributions--for Wages Paid Prior 
                                 to 1987



Sec. 404.1260  Amount of contributions--for wages paid prior to 1987.

    The State's contributions are equal to the product of the applicable 
contribution rate (which is equivalent to both the tax rates imposed 
under sections 3101 and 3111 of the Internal Revenue Code) times the 
amount of wages actually or constructively paid for covered services 
each year (subject to the wage limitations in Sec. 404.1047) to the 
employee.



Sec. 404.1262  Manner of payment of contributions by State--for wages paid prior to 1987.

    When paying its contributions, the State shall deposit its payment 
at the specific Federal Reserve bank or branch designated by SSA.



Sec. 404.1263  When fractional part of a cent may be disregarded--for wages paid prior to 1987.

    In paying contributions to a Federal Reserve bank or branch, a State 
may disregard a fractional part of a cent unless it amounts to one-half 
cent or more, in which case it shall be increased to one cent. 
Fractional parts of a cent shall be used in computing the total of 
contributions.

 If a State Fails To Make Timely Payments--for Wages Paid Prior to 1987



Sec. 404.1265  Addition of interest to contributions--for wages paid prior to 1987.

    (a) Contributions not paid timely. If a State fails to pay its 
contributions to the appropriate Federal Reserve bank or branch (see 
Sec. 404.1262), when due under Sec. 404.1249(a), we add interest on the 
unpaid amount of the contributions beginning with the date the payment 
was due, except as described in paragraphs (b) and (c) of this section. 
Interest, if charged, begins with the due date even if it is a weekend, 
legal holiday or Federal nonwork day. Interest is added at the rate 
prescribed in section 218(j) of the Act as it read prior to the 
enactment of Pub. L. 99-509.
    (b) Method of making adjustment. (1) If a State shall file a 
contribution return and shall accompany such return with payment of 
contributions due and payable as reported on such return in accordance 
with Sec. 404.1249 but the amount of the contributions reported and paid 
is less than the correct amount of contributions due and payable and the 
underpayment of contributions is attributable to an error in computing 
the contributions (other than an error in applying the rate of 
contributions in effect at the time the wages were paid), the State 
shall adjust the underpayment by reporting the additional amount due by 
reason of such underpayment either as an adjustment of total 
contributions due with the first wage report filed after notification of 
the underpayment by the Social Security Administration, or as a single 
adjustment of total contributions due with any contribution return filed 
prior to the filing of such wage report.
    (2) If an underpayment of contributions is due to an underreporting 
of or a failure to report one or more employees:
    (i) Where the underreporting or failure to report has been 
ascertained by the State, the State may cause an adjustment by filing a 
report within 30 days after ascertainment of the error by the State;
    (ii) Where the underreporting or failure to report has been 
ascertained by the Social Security Administration, a notification of 
underpayment shall be forwarded to the State, and the State may cause an 
adjustment of the underpayment by returning to the Social Security 
Administration, within 30 days from the date of the notification, a copy 
of the notification of underpayment and the State's corrected report. 
The report shall show the amount of

[[Page 312]]

wages, if any, erroneously reported for the reporting period and the 
correct amount of wages that should have been reported and the 
identification number of the State or the political subdivision for each 
employee who was omitted or erroneously reported. The filing to correct 
an underreporting of or a failure to report one or more employees' wages 
shall not constitute an adjustment under this section unless the wages 
were erroneously omitted or erroneously reported.
    (c) Payment. The amount of each underpayment adjusted in accordance 
with this section shall be paid to the Federal Reserve Bank, or branch 
thereof, serving the district in which the State is located, without 
interest, at the time of reporting the adjustment; except that where any 
amounts due with respect to such an adjustment had been paid in error to 
IRS and a refund thereof timely requested from, or instituted by, IRS, 
the amount of underpayment adjusted in accordance with this section, 
plus any interest paid by IRS on the amount of such underpayment, shall 
be paid to the Federal Reserve Bank, or branch thereof, serving the 
district in which the State is located, at the time of reporting the 
adjustment or within 30 days after the date of issuance by IRS of the 
refund of the erroneous payments, whichever is later. Except as provided 
in the preceding sentence of this paragraph, if an adjustment is 
reported pursuant to paragraph (b) of this section, but the amount 
thereof is not paid when due, interest thereafter accrues.
    (d) Verifying contributions paid against reported wages. We check 
the computation of contributions to verify that a State has paid the 
correct amount of contributions on the wages it reports for a calendar 
year (see Sec. 404.1249(b)(2)). If we determine that a State paid less 
than the amount of contributions due for that year, we add interest to 
the amount of the underpayment. We would add interest beginning with the 
date the unpaid contributions were initially due to the date those 
contributions are paid. However, if the total amount of the underpayment 
is 5 percent or less than 5 percent of the contributions due for a 
calendar year based upon the State's wage report and the State deposits 
the underpaid amount within 30 days after the date of our notification 
to the State of the amount due, the State may request that the interest 
on the underpaid amount be waived for good cause. This request must be 
made within 30 days of our notification to the State of the amount due. 
Such requests will be evaluated on an individual basis. The evaluation 
will include, but not be limited to, consideration of such factors as 
the circumstances causing the late payment, the State's past record of 
late payments and the amount involved.

                                Examples

     (1) The records of a political subdivision for the month of June 
are destroyed by fire. The State makes an estimated deposit of 
contributions for the month of June for that political subdivision and 
deposits contributions for the month of June for all other political 
subdivisions based on actual records. At the time SSA verifies 
contributions paid against reported wages, we discover that the State 
has paid only 97 percent of its total liability for the year. Within 30 
days after we notify it of the amount due, the State asks that we waive 
the interest on the unpaid amount and the State deposits the unpaid 
amount. In this situation, we would waive the interest on the unpaid 
contributions.
    (2) We would waive interest if:
    (i) Some of the political subdivisions made small arithmetical 
errors in preparing their reports of wages,
    (ii) After verification of the contributions paid against reported 
wages, SSA discovers that minimal additional contributions are due,
    (iii) Within 30 days of our notice to the State regarding this 
underpayment the State, which usually makes its deposits timely, pays 
the amount due, and
    (iv) Within that same 30 day period the State requests that we waive 
the interest due.
    (3) We would not waive interest where a State frequently has 
problems depositing its contributions timely. Reasons given for the 
delays are, e.g., the computer was down, the 5 p.m. mail pickup was 
missed, one of the school district reports was misplaced. If requested 
we would not waive interest on this State's late payment of 
contributions based upon its past record of late payments and because of 
the circumstances cited.
    (e) Due date is on a weekend, legal holiday or Federal nonworkday. 
If the last day of the 30-day periods specified in paragraphs (b) and 
(d) of this section is on a weekend, legal holiday or Federal

[[Page 313]]

nonworkday, the State shall make the required deposit or request for 
waiver of payment of interest on the next Federal workday.

    Effective Date Note:  At 53 FR 32976, Aug. 29, 1988, Sec. 404.1265 
was revised. This amendment contains reporting and recordkeeping 
requirements and will become effective upon approval by the Office of 
Management and Budget. A notice announcing the effective date will be 
published in the Federal Register.



Sec. 404.1267  Failure to make timely payments--for wages paid prior to 1987.

    If a State does not pay its contributions when due, the Secretary 
has the authority under section 218(j) of the Act as it read prior to 
the enactment of Pub. L. 99-509 to deduct the amounts of the unpaid 
contributions plus interest at the rate prescribed from any amounts 
certified by her or him to the Secretary of the Treasury for payments to 
the State under any other provision of the Social Security Act. The 
Secretary notifies the Secretary of the Treasury of the amounts deducted 
and requests that the amount be credited to the Trust Funds. Amounts 
deducted are considered paid to the State under the other provision of 
the Social Security Act.

  How Errors in Reports and Contributions Are Adjusted--for Wages Paid 
                              Prior to 1987



Sec. 404.1270  Adjustments in general--for wages paid prior to 1987.

    States have the opportunity to adjust errors in the payment of 
contributions. A State but not its political subdivisions is authorized 
to adjust errors in the underpayment of contributions. Similarly, the 
State shall file all claims for credits or refunds and SSA makes the 
credits and refunds only to the State. Generally, we do not refund 
contributions in cash to a State unless the State is not expected to 
have future liability for contributions under section 218 of the Act.



Sec. 404.1271  Adjustment of overpayment of contributions--for wages paid prior to 1987.

    (a) General. If a State pays more than the correct amount of 
contributions, the State shall adjust the overpayment with the next 
contribution return filed on which the amount owed equals or exceeds the 
amount of the overpayment.
    (b) Overpayment due to overreporting of wages--(1) Report to file. 
If the overpayment is due to the State's reporting more than the correct 
amount of wages paid to one or more employees during a reporting period 
and the overpayment is not adjusted under paragraph (a) of this section, 
the State shall file a report on the appropriate form showing:
    (i) The corrected wage data as prescribed by SSA; and
    (ii) The reason why the original reporting was incorrect.
    (2) Refund or credit of overpayment where section 218(e)(2) of the 
Act not applicable. If:
    (i) The State collected contributions from employees in excess of 
the amount of taxes that would have been required under section 3101 of 
the Internal Revenue Code; and
    (ii) The State paid to the Secretary of the Treasury those 
contributions plus a matching amount in excess of the taxes which would 
have been required from an employer under section 3111 of the Code; and
    (iii) The services of the employees in question would have 
constituted employment under section 3121(b) of the Code; and
    (iv) Section 218(e)(2) of the Act as it read prior to the enactment 
of Pub. L. 99-509 does not apply (see Sec. 404.1256(a)), then the State 
shall adjust the overpaid contributions under paragraph (b)(1) of this 
section. With its adjustment the State, where appropriate, shall include 
on the prescribed form a statement that the employees from whom the 
excess contributions were collected have not received nor expect to 
receive a refund of excess contributions under section 6413(c) of the 
Internal Revenue Code of 1954 (see Sec. 404.1275(b)). Generally, if the 
State does not include this statement with its adjustment request, we 
only refund or credit the State for up to one-half of the overpaid 
amount.
    (c) Refund or credit of overpayment where section 218(e)(2) of the 
Act applicable--(1) General. If--

[[Page 314]]

    (i) The overreporting of the amount of wages paid to one or more 
employees during a reporting period(s) is due to a computation of 
contributions under Sec. 404.1256 for a year or years prior to the year 
in which the agreement or modification providing for the computation is 
entered into, or
    (ii) The overreporting is due to a failure to compute Sec. 404.1256,

the State shall adjust the overpayment under paragraph (b)(1) of this 
section. An overpayment due to overreported wages which does not result 
from the computation of contributions or a failure to compute 
contributions under Sec. 404.1256 shall also be adjusted by the State 
under paragraph (b)(1) of this section. If the adjustment of the 
overpayment results in an underreporting of wages for any employee by 
the State or any political subdivision, the State shall include with the 
report adjusting the overpayment a report adjusting each underreporting. 
If the adjustment of the overpayment does not result in an 
underreporting of wages for any employee by the State or any political 
subdivision, the State shall include with the report adjusting the 
overpayment a statement that the adjustment of the overpayment does not 
result in any underreporting.
    (2) Amount of refund or credit. If the State collects excess 
contributions from employees, the State's claim for refund or credit is 
limited to the overpaid amounts. (See Sec. 404.1275 relating to 
adjustment of employee contributions.) If--
    (i) The State collected the correct amount of contributions from 
employees based on the amount of wages reported and the Forms W-2 issued 
to the employees show only the amount of contributions actually 
collected, but the amount of wages reported is being adjusted downward, 
or
    (ii) The State collects excess contributions from employees but 
Forms W-2 have not been issued for an amount of wages which is being 
adjusted downward, the State may claim a refund or credit for the 
overpaid amounts. Where the State's claim for refund or credit is for 
the total overpaid amount, the adjustment report shall include a 
statement that excess contributions have not been collected from 
employees, or, where excess contributions have been collected, that 
Forms W-2 have not been issued and that, when issued, they will show the 
correct amount of employee contributions.

    Effective Date Note:  At 53 FR 32976, Aug. 29, 1988, Sec. 404.1271 
was revised. This amendment contains reporting and recordkeeping 
requirements and will become effective upon approval by the Office of 
Management and Budget. A notice announcing the effective date will be 
published in the Federal Register.



Sec. 404.1272  Refund or recomputation of overpayments which are not adjustable--for wages paid prior to 1987.

    (a) General. If a State pays more than the correct amount of 
contributions or interest to the appropriate Federal Reserve bank or 
branch (see Sec. 404.1262), and no adjustment in the amount of reported 
wages is necessary, that State may file a claim for refund or 
recomputation of the overpayment.
    (b) Form of claim. No special form is required to make a claim for a 
refund or recomputation. If a credit is taken under Sec. 404.1271, a 
claim is not required.
    (c) Proof of representative capacity. If a report or return is made 
by an authorized official of the State who ceases to act in an official 
capacity and a claim for a refund is made by a successor official, the 
successor official must submit with the claim written evidence showing 
that he or she has the authority to make a claim for and receive a 
refund of any contributions paid by the former official. The written 
evidence is not necessary if the successor official has previously filed 
one or more reports or returns which contain her or his signature and 
official title.

    Effective Date Note:  At 53 FR 32976, Aug. 29, 1988, Sec. 404.1272 
was revised. This amendment contains reporting and recordkeeping 
requirements and will become effective upon approval by the Office of 
Management and Budget. A notice announcing the effective date will be 
published in the Federal Register.

[[Page 315]]



Sec. 404.1275  Adjustment of employee contributions--for wages paid prior to 1987.

    The amount of contributions a State deducts from an employee's 
remuneration for covered services, or any correction of that amount, is 
a matter between the employee and the State or political subdivision. 
The State shall show any correction of an employee's contribution on 
statements it furnishes the employee under Sec. 404.1226. Where the 
State issues an employee a Form W-2 and then submits an overpayment 
adjustment but claims less than the total overpaid amount as a refund or 
credit, the State shall not correct the previously issued Form W-2 to 
reflect that adjustment.



Sec. 404.1276  Reports and payments erroneously made to Internal Revenue Service-transfer of funds--for wages paid prior to 1987.

    (a) General. In some instances, State or local governmental entities 
not covered under an agreement make reports and pay contributions to IRS 
under the Federal Insurance Contributions Act (FICA) procedures 
applicable to private employers in the mistaken belief that this 
provides Social Security coverage under section 218 of the Act for their 
employees. In other instances, entities which are covered under an 
agreement erroneously report to IRS, or a State or local government 
employee reports other employees to IRS or reports to IRS as a self-
employed individual. Where these reports and payments are erroneously 
made to IRS, the State may correct the error and obtain coverage under 
its agreement as described in paragraphs (b) through (f) of this 
section.
    (b) Political subdivision not included in the State agreement. We 
notify the State that if it desires coverage, it may be provided by 
either a regular modification or an error modification, depending on the 
circumstances (Secs. 404.1215 and 404.1216). In most cases, the State 
may obtain coverage by a regular modification. If a regular modification 
cannot be used (e.g., State law does not permit the retroactive 
effective date which would be desired), the State may use an error 
modification. The effective date of either modification depends on the 
facts of the situation being corrected.
    (c) Political subdivision included in the agreement. If a political 
subdivision included in the agreement erroneously makes reports and 
payments under FICA procedures, the State must correct the reportings 
for periods not barred by the statute of limitations. If the covered 
entity reported both under the agreement and under FICA procedures, we 
notify IRS and make necessary corrections in the earnings records. We 
also advise the State that the entity which reported under FICA 
procedures should request a refund of payments erroneously made to IRS.
    (d) State and local government employees erroneously reported as 
employees of individual or as self-employed--(1) Covered entity. If 
employees of a covered entity are erroneously reported as employees of 
an individual or as self-employed, we advise the State that the 
individual who made the reports should request a refund from IRS for 
periods not barred by the statute of limitations. We require the State 
to file correctional reports and returns for any periods open under the 
State and local statute of limitations.
    (2) Noncovered entity. We advise the State that the individual who 
made the reports should request a refund from IRS for the periods not 
barred by the statute of limitations. If the State wishes to provide 
coverage, it must submit a modification as discussed in paragraph (b) of 
this section. If the State does not wish to provide coverage, we void 
the reports. Amounts reported for periods barred by the statute of 
limitations remain on the earnings records.
    (e) Filing wage reports and paying contributions. Generally, the 
entity or individual that makes the erroneous reports and payments 
requests the refund from IRS for periods not barred by the statute of 
limitations. The State files the necessary reports with SSA and pays any 
contributions due. The reports shall conform to the coverage provided by 
the agreement to the extent permitted by the statute of limitations. The 
due date for these reports depends on whether original reports or 
adjustment reports are involved. Reports and contribution returns for 
the

[[Page 316]]

entire retroactive period of coverage provided by a regular or error 
modification are due 90 days after the date of execution of the 
modification. The time limitations for issuing assessments and credits 
or refunds extend from this due date. Thus, SSA may issue assessments or 
credits or refunds for periods barred to refund by IRS. The State may 
request that reports and payments for the IRS barred periods be 
considered made under the agreement as described in paragraph (f) of 
this section.
    (f) Use of transfer procedure. In limited situations, the State may 
request that reports and payments the State or a political subdivision 
(but not an individual) erroneously made under FICA procedures and which 
have been posted to the employee's earnings record be considered made 
under the State's agreement. We use a transfer procedure to do this. The 
transfer procedure may be used only where
    (1) The periods are open to assessment under the State and local 
statute of limitations;
    (2) The erroneous reports to be transferred are posted to SSA's 
records;
    (3) The periods are barred to refund under the IRS statute of 
limitations; and
    (4) A refund is not obtained from IRS by the reporting entity.

 How Overpayments of Contributions Are Credited or Refunded--for Wages 
                           Paid Prior to 1987



Sec. 404.1280  Allowance of credits or refunds--for wages paid prior to 1987.

    If a State pays more than the amount of contributions due under an 
agreement, SSA may allow the State, subject to the time limitations in 
Sec. 404.1282 and the exceptions to the time limitations in 
Sec. 404.1283, a credit or refund of the overpayment.



Sec. 404.1281  Credits or refunds for periods of time during which no liability exists--for wages paid prior to 1987.

    If a State pays contributions for any period of time for which 
contributions are not due, but the State is liable for contributions for 
another period, we credit the amount paid against the amount of 
contributions for which the State is liable. We refund any balance to 
the State.



Sec. 404.1282  Time limitations on credits or refunds--for wages paid prior to 1987.

    (a) General. To get a credit or refund, a State must file a claim 
for a credit or refund of the overpaid amount with the Secretary before 
the applicable time limitation expires. The State's claim for credit or 
refund is considered filed with the Secretary when it is delivered or 
mailed to the Secretary. Where the time limitation ends on a weekend, 
legal holiday or Federal nonworkday, we consider a claim timely filed if 
it is filed on the next Federal workday.
    (b) Time limitation. Subject to the exceptions in Sec. 404.1283, a 
State must file a claim for credit or refund of an overpayment before 
the end of the latest of the following time periods:
    (1) 3 years, 3 months, and 15 days after the year in which the wages 
in question were paid or alleged to have been paid; or
    (2) 3 years after the due date of the payment which included the 
overpayment; or
    (3) 2 years after the overpayment was made to the Secretary of the 
Treasury.



Sec. 404.1283  Exceptions to the time limitations on credits or refunds--for wages paid prior to 1987.

    (a)(1) Extension by agreement. The applicable time period described 
in Sec. 404.1282 for filing a claim for credit for, or refund of, an 
overpayment may, before the expiration of such period, be extended for 
no more than 6 months by written agreement between the State and the 
Secretary. The agreement must involve and identify a known issue or 
reporting error. It must also identify the periods involved, the time 
limitation which is being extended and the date to which it is being 
extended, and the coverage group(s) and position(s) or individual(s) to 
which the agreement applies. The extension of the period of limitation 
shall not become effective until the agreement is signed by the 
appropriate State official and the Secretary. (See Sec. 404.3(c) for the 
applicable rule where periods of limitation expire on nonwork days.) A 
claim for credit or refund filed by the State

[[Page 317]]

before the extended time limit ends shall be considered to have been 
filed within the time period limitation specified in section 218(r)(1) 
of the Act as it read prior to the enactment of Pub. L. 99-509. (See 
Sec. 404.1282.)
    (2) Reextension. An extension agreement provided for in paragraph 
(a)(1) of this section may be reextended by written agreement between 
the State and the Secretary for no more than 6 months at a time beyond 
the expiration of the prior extension or reextension agreement, and only 
if one of the following conditions is met:
    (i) Litigation (including intrastate litigation) or a review under 
Secs. 404.1290 or 404.1297 involving wage reports or corrections on the 
same issue is pending; or
    (ii) The State is actively pursuing corrections of a known error 
which require additional time to complete; or
    (iii) The Social Security Administration is developing a coverage or 
wage issue which was being considered before the statute of limitations 
expired and additional time is needed to make a determination; or
    (iv) The Social Security Administration has not issued to the State 
a final audit statement on the State's wage or correction reports; or
    (v) There is pending Federal legislation which may substantially 
affect the issue in question, or the issue has national implications.
    (b) Deletion of wage entry on employee's earnings record. If the 
Secretary, under section 205(c)(5) (A), (B), or (E) of the Act, deletes 
a wage entry on an individual's earnings record, a claim for credit or 
refund of the overpayment resulting from the deletion is considered 
filed within the applicable time limitations in Sec. 404.1282 if
    (1) The State files the claim before the Secretary's decision 
regarding the deletion of the wage entry from the individual's earnings 
record becomes final or
    (2) The State files a claim regarding the deletion of the wage entry 
from the individual's earnings record which entry is erroneous because 
of fraud.



Sec. 404.1284  Offsetting underpayments against overpayments--for wages paid prior to 1987.

    (a) State fails to make adjustment for allowance of credit. If SSA 
notifies a State that a credit is due the State, and the State does not 
make the adjustment for the allowance of the credit, SSA offsets the 
credit against any contributions or interest due. Before making the 
offset, SSA will give the State an opportunity to make the adjustment.
    (b) State fails to make adjustment for underpayment of contributions 
or interest due. If SSA notifies a State that contributions or interest 
are due, and the State does not pay the contributions or interest, SSA 
offsets the contributions or interest due against any credit due the 
State. Before making the offset, SSA will give the State an opportunity 
to pay the underpayment or interest due.

 How Assessments for Underpayments of Contributions Are Made--for Wages 
                           Paid Prior to 1987



Sec. 404.1285  Assessments of amounts due--for wages paid prior to 1987.

    (a) A State is liable for any amount due (which includes 
contributions or interest) under an agreement until the Secretary is 
satisfied that the amount has been paid to the Secretary of the 
Treasury. If the Secretary is not satisfied that a State has paid the 
amount due, the Secretary issues an assessment for the amount due 
subject to the time limitations in Sec. 404.1286 and the exceptions to 
the time limitations in Secs. 404.1287 and 404.1289. If detailed wage 
information is not available, the assessment is issued based on the 
following:
    (1) The largest number of individuals whose services are known to be 
covered under the agreement is used for computation purposes;
    (2) The individuals are assumed to have maximum creditable earnings 
each year;
    (3) The earnings are considered wages for covered services; and
    (4) The amount computed is increased by twenty percent to insure

[[Page 318]]

that all covered wages are included in the assessment.
    (b) If the State pays the amount assessed and the assessed amount is 
later determined to be more than the amount actually due, we issue a 
refund or credit to that State for the excess amount. When the 
assessment is issued within the applicable time limitation, there is no 
time limit on collecting the amount due. An assessment is issued on the 
date that it is mailed or otherwise delivered to the State.



Sec. 404.1286  Time limitations on assessments--for wages paid prior to 1987.

    (a) Subject to the exceptions to the time limitations in 
Secs. 404.1287 and 404.1289, a State is not liable for an amount due 
under an agreement unless the Secretary makes an assessment for that 
amount before the later of the following periods ends:
    (1) Three years, 3 months, and 15 days after the year in which the 
wages, upon which the amount is due, were paid; or
    (2) Three years after the date the amount became due.
    (b) Where the time limitation ends on a weekend, legal holiday or 
Federal nonworkday, an assessment is considered timely if the Secretary 
makes the assessment on the next Federal workday.



Sec. 404.1287  Exceptions to the time limitations on assessments--for wages paid prior to 1987.

    (a)(1) Extension by agreement. The applicable time period described 
in Sec. 404.1286 for assessment of an amount due may, before the 
expiration of such period, be extended for no more than 6 months by 
written agreement between the State and the Secretary. The agreement 
must involve and identify a known issue or reporting error. It must also 
identify the periods involved, the time limitation which is being 
extended and the date to which it is being extended, and the coverage 
group(s) and position(s) or individual(s) to which the agreement 
applies. The extension of the period of limitation shall not become 
effective until the agreement is signed by the appropriate State 
official and the Secretary. (See Sec. 404.3(c) for the applicable rule 
where periods of limitation expire on nonwork days.) An assessment made 
by the Secretary before the extended time limit ends shall be considered 
to have been made within the time period limitation specified in section 
218(q)(2) of the Act as it read prior to the enactment of Pub. L. 99-
509. (See Sec. 404.1286.)
    (2) Reextension. An extension agreement provided for in paragraph 
(a)(1) of this section may be reextended by written agreement between 
the State and the Secretary for no more than 6 months at a time beyond 
the expiration of the prior extension or reextension agreement, and only 
if one of the following conditions is met:
    (i) Litigation (including intrastate litigation) or a review under 
Sec. 404.1290 or Sec. 404.1297 involving wage reports or corrections on 
the same issue is pending; or
    (ii) The State is actively pursuing corrections of a known error 
which require additional time to complete; or
    (iii) The Social Security Administration is developing a coverage or 
wage issue which was being considered before the statute of limitations 
expired and additional time is needed to make a determination; or
    (iv) The Social Security Administration has not issued to the State 
a final audit statement on the State's wage or correction reports; or
    (v) There is pending Federal legislation which may substantially 
affect the issue in question, or the issue has national implications.
    (b) The 365-day period. If a State files a report before the 
applicable time limitation in Sec. 404.1286 (or any extension under 
paragraph (a) of this section) ends and makes no payment or pays less 
than the correct amount due, the Secretary may assess the State for the 
amount due after the applicable time limitation has ended. However, the 
Secretary must make the assessment no later than the 365th day after the 
day the State makes payment to the Secretary of the Treasury. The 
Secretary can only make this assessment on the wages paid to the 
reported individuals for the reported periods. The Secretary, in making 
this assessment, credits the amount paid by the State on these 
individuals' wages for those reported periods.

[[Page 319]]

    (c) Revision of employee's earnings record. If, under section 
205(c)(5) (A) or (B) of the Act, the Secretary credits wages to an 
individual's earnings record, the Secretary may make an assessment for 
any amount due on those wages before the Secretary's decision on 
revising the individual's earnings record becomes final. (Sections 
404.822(c) (1) and (2) describe the time limits for revising an earnings 
record where an individual has applied for monthly benefits or a lump-
sum death payment or requested that we correct his earnings record.)
    (d) Overpayment of contributions on wages of employee having other 
wages in a period barred to assessment. If the Secretary allows a State 
a credit or refund of an overpayment for wages paid or alleged to have 
been paid an individual in a calendar year but the facts upon which the 
allowance is based establish that contributions are due on other wages 
paid that individual in that year which are barred to assessment, we may 
make an assessment notwithstanding the periods of limitation in 
Sec. 404.1286. The assessment, however, must be made before or at the 
time we notify the State of the allowance of the credit or refund. In 
this situation, the Secretary reduces the amount of the State's credit 
or refund by the assessed amount and notifies the State accordingly. For 
purposes of this paragraph, the assessment shall only include 
contributions and not interest as provided for in section 218(j) of the 
Act as it read prior to the enactment of Pub. L. 99-509.
    Example:  The State files an adjustment report timely to correct an 
error in the amount reported as wages for an employee. The correction 
reduces the employee's wages for the year to less than the maximum 
amount creditable. The employee has other earnings in the same year 
which were not reported because of the previously reported maximum 
amounts. The applicable time limitation for assessing contributions on 
wages for the year has expired before the credit was allowed. The 
Secretary may assess for the underpaid contributions but no later than 
thd date of the notice to the State that its claim for a credit had been 
allowed.
    (e) Evasion of payment. The Secretary may make an assessment of an 
amount due at any time where the State's failure to pay the amount due 
results from the fraudulent attempt of an officer or employee of the 
State or political subdivision to defeat or evade payment of that 
amount.



Sec. 404.1289  Payment after expiration of time limitation for assessment--for wages paid prior to 1987.

    The Secretary accepts wage reports filed by a State even though the 
applicable time limitation described in Sec. 404.1286 (or as the time 
limitation is extended under Sec. 404.1287) has expired, provided:
    (a) The State pays to the Secretary of the Treasury the amount due 
on the wages paid to employees performing services in the coverage group 
in the calendar years for which the wage reports are being made; and
    (b) The State agrees in writing with the Secretary to extend the 
time limitation for all employees in the coverage group in the calendar 
years for which the wage reports are being made.

In this situation, the time period for assessment is extended until the 
Secretary notifies the State that the wage reports are accepted. Where 
the State pays the amount due within the time period as extended under 
this section, the amount shall not include interest as provided for in 
section 218(j) of the Act as it read prior to the enactment of Pub. L. 
99-509.

Secretary's Review of Decisions on Credits, Refunds, or Assessments--for 
                        Wages Paid Prior to 1987



Sec. 404.1290  Review of decisions by the Secretary--for wages paid prior to 1987.

    (a) Delegation of authority. The Secretary, who has the authority 
under section 218(s) of the Act as it read prior to the enactment of 
Pub. L. 99-509 to review decisions on credits, refunds or assessments, 
has delegated this authority to the Commissioner of Social Security.
    (b) What decisions will be reviewed. A State, under section 218(s) 
of the Act as it read prior to the enactment of Pub. L. 99-509, may 
request review of an assessment of an amount due from the State, an 
allowance to the State of a credit or refund of an overpayment, or a 
disallowance of the State's claim for credit or refund of an 
overpayment.

[[Page 320]]

The Commissioner may review regardless of whether the amount assessed 
has been paid or whether the credit or refund has been accepted by the 
State. Prior to the Commissioner's review, however, an assessment, 
allowance or disallowance may be reconsidered under Secs. 404.1291 
through 404.1293.



Sec. 404.1291  Reconsideration--for wages paid prior to 1987.

    After the State requests review of the assessment or allowance or 
disallowance of a credit or refund, and prior to the Commissioner's 
review, that decision may be reconsidered, and affirmed, modified, or 
reversed. We notify the State of the reconsidered determination and the 
basis for it. The State may request the Commissioner to review this 
reconsidered determination under Sec. 404.1294(b). In limited 
situations, SSA and the State may agree that the reconsideration process 
should be waived, e.g., where major policy is at issue.



Sec. 404.1292  How to request review--for wages paid prior to 1987.

    (a) Form of request. No particular form of request is required. 
However, a written request for review must:
    (1) Identify the assessment, allowance or disallowance being 
questioned;
    (2) Describe the specific issue on which the review is requested;
    (3) Contain any additional information or argument relevant to that 
issue; and
    (4) Be signed by an official authorized to request the review on 
behalf of the State.
    (b) Submitting additional material. A State has 90 days from the 
date it requests review to submit additional evidence it wishes 
considered during the review process. The time limit for submitting 
additional evidence may be extended upon written request of the State 
and for good cause shown.



Sec. 404.1293  Time for filing request for review--for wages paid prior to 1987.

    (a) Time for filing. The State must file its request for review 
within 90 days after the date of the notice of assessment, allowance, or 
disallowance. Usually, the date of the request for review is considered 
the filing date. Where the 90-day period ends on a weekend, legal 
holiday or Federal nonworkday, a request filed on the next Federal 
workday is considered as timely filed.
    (b) Extension of time. For good cause shown, and upon written 
application by a State filed prior to the expiration of the time for 
filing a request for review, additional time for filing the request may 
be allowed.



Sec. 404.1294  Notification to State after reconsideration--for wages paid prior to 1987.

    (a) The State will be notified in writing of the reconsidered 
determination on the assessment, allowance, or disallowance, and the 
basis for the determination.
    (b) If the State does not agree with the reconsidered determination, 
it has 90 days from the date of notice of the reconsidered determination 
to request the Commissioner to review that determination. The rules on 
what the request should contain and the time for filing the request are 
the same as in Secs. 404.1292 and 404.1293.



Sec. 404.1295  Commissioner's review--for wages paid prior to 1987.

    Upon request by the State, the Commissioner will review the 
reconsidered determination (or the assessment, allowance or disallowance 
as initially issued if reconsideration is waived under Sec. 404.1291). 
If necessary, the Commissioner may request the State to furnish 
additional evidence. Based upon the evidence considered in connection 
with the assessment, allowance or disallowance and any additional 
evidence submitted by the State or otherwise obtained by the 
Commissioner, the Commissioner affirms, modifies, or reverses the 
assessment, allowance or disallowance.



Sec. 404.1296  Commissioner's notification to the State--for wages paid prior to 1987.

    The Commissioner notifies the State in writing of the decision on 
the assessment, allowance, or disallowance, and the basis for the 
decision.

[[Page 321]]

  How a State May Seek Court Review of Secretary's Decision--for Wages 
                           Paid Prior to 1987



Sec. 404.1297  Review by court--for wages paid prior to 1987.

    (a) Who can file civil action in court. A State may file a civil 
action under section 218(t) of the Act as it read prior to the enactment 
of Pub. L. 99-509 requesting a district court of the United States to 
review any decision the Commissioner makes for the Secretary under 
section 218(s) of the Act as it read prior to the enactment of Pub. L. 
99-509 concerning the assessment of an amount due, the allowance of a 
credit or refund, or the disallowance of a claim for credit or refund.
    (b) Where the civil action must be filed. A State must file the 
civil action in the district court of the United States for the judicial 
district in which the State's capital is located. If the civil action is 
brought by an interstate instrumentality, it must file the civil action 
in the district court of the United States for the judicial district in 
which the instrumentality's principal office is located. The district 
court's judgment is final except that it is subject to review in the 
same manner as judgments of the court in other civil actions.
    (c) No interest on credit or refund of overpayment. SSA has no 
authority to pay interest to a State after final judgment of a court 
involving a credit or refund of an overpayment made under section 218 of 
the Act.



Sec. 404.1298  Time for filing civil action--for wages paid prior to 1987.

    (a) Time for filing. The State must file the civil action for a 
redetermination of the correctness of the assessment, allowance or 
disallowance within 2 years from the date the Commissioner mails to the 
State the notice of the decision under Sec. 404.1296. Where the 2-year 
period ends on a Saturday, Sunday, legal holiday or Federal nonwork day, 
an action filed on the next Federal workday is considered timely filed.
    (b) Extension of time for filing. The Commissioner, for good cause 
shown, may upon written application by a State filed prior to the end of 
the two-year period, extend the time for filing the civil action.



Sec. 404.1299  Final judgments--for wages paid prior to 1987.

    (a) Overpayments. Payment of amounts due to a State required as the 
result of a final judgment of the court shall be adjusted under 
Secs. 404.1271 and 404.1272.
    (b) Underpayments. Wage reports and contribution returns required as 
the result of a final judgment of the court shall be filed under 
Secs. 404.1237-404.1251. We will assess interest under Sec. 404.1265 
where, based upon a final judgment of the court, contributions are due 
from a State because the amount of contributions assessed was not paid 
by the State or the State had used an allowance of a credit or refund of 
an overpayment.



   Subpart N--Wage Credits for Veterans and Members of the Uniformed 
                                Services

    Authority:  Secs. 205(a) and (p), 210(l) and (m), 215(h), 217, 229, 
and 702(a)(5) of the Social Security Act (42 U.S.C. 405(a) and (p), 
410(l) and (m), 415(h), 417, 429, and 902(a)(5)).

    Source:  45 FR 16464, Mar. 14, 1980, unless otherwise noted.

                                 General



Sec. 404.1301  Introduction.

    (a) The Social Security Act (Act), under section 217, provides for 
noncontributory wage credits to veterans who served in the active 
military or naval service of the United States from September 16, 1940, 
through December 31, 1956. These individuals are considered World War II 
or post-World War II veterans. The Act also provides for noncontributory 
wage credits to certain individuals who served in the active military or 
naval service of an allied country during World War II. These 
individuals are considered World War II veterans. In addition, certain 
individuals get wage credits, under section 229 of the Act, for service 
as members of the uniformed services on active duty or active duty for 
training beginning in 1957 when that service was

[[Page 322]]

first covered for social security purposes on a contributory basis. 
These individuals are considered members of the uniformed services.
    (b) World War II or post-World War II veterans receive wage credits 
based on the length of active military or naval service, type of 
separation from service and, in some cases, whether the veteran is 
receiving another Federal benefit. However, a member of a uniformed 
service receives wage credits regardless of length of service, type of 
separation, or receipt of another Federal benefit.
    (c) The Social Security Administration (SSA) uses these wage 
credits, along with any covered wages or self-employment income of the 
veteran or member of a uniformed service, to determine entitlement to, 
and the amount of, benefits and the lump-sum death payment that may be 
paid to them, their dependents or survivors under the old-age, 
survivors', and disability insurance programs. These wage credits can 
also be used by the veteran or member of the uniformed service to meet 
the insured status and quarters of coverage requirements for a period of 
disability.
    (d) This subpart tells how veterans or members of the uniformed 
services obtain wage credits, what evidence of service SSA requires, how 
SSA uses the wage credits, and how the wage credits are affected by 
payment of other benefits.
    (e) This subpart explains that certain World War II veterans who die 
are considered (deemed) fully insured. This gives those veterans' 
survivors the same benefit rights as if the veterans were actually fully 
insured when they died.
    (f) The rules are organized in the following manner:
    (1) Sections 404.1310 through 404.1313 contain the rules on World 
War II veterans. We discuss who may qualify as a World War II veteran, 
how we determine whether the 90-day active service requirement for a 
World War II veteran is met, what we consider to be World War II active 
military or naval service, and what we do not consider to be World War 
II active military or naval service.
    (2) Sections 404.1320 through 404.1323 contain the rules on post-
World War II veterans. We discuss who may qualify as a post-World War II 
veteran, how we determine whether the 90-day active service requirement 
for a post-World War II veteran is met, what we consider to be post-
World War II active military or naval service, and what we do not 
consider to be post-World War II active military or naval service.
    (3) In Sec. 404.1325 we discuss what is a separation under 
conditions other than dishonorable. The law requires that a World War II 
or post-World War II veteran's separation from active military or naval 
service be other than dishonorable for the veteran to get wage credits.
    (4) Section 404.1330 contains the rules on members of the uniformed 
services. We discuss who may qualify as a member of a uniformed service.
    (5) In Secs. 404.1340 through 404.1343, we discuss the amount of 
wage credits for veterans and members of the uniformed services, 
situations which may limit the use of wage credits for World War II and 
post-World War II veterans, and situations in which the limits do not 
apply.
    (6) Sections 404.1350 through 404.1352 contain the rules on deemed 
insured status for World War II veterans. We discuss when deemed insured 
status applies, the amount of wage credits used for deemed insured World 
War II veterans, how the wage credits affect survivors' social security 
benefits, and when deemed insured status does not apply.
    (7) Sections 404.1360 through 404.1363 contain the rules on the 
effect of other benefits on the payment of social security benefits and 
lump-sum death payments based on wage credits for veterans. We discuss 
what happens when we learn of a determination that a Veterans 
Administration pension or compensation is payable or that a Federal 
benefit is payable before or after we determine entitlement to a montly 
benefit or lump-sum death payment based on the death of the veteran.
    (8) Sections 404.1370 and 404.1371 contain the rules on what we 
accept as evidence of a World War II and post-World War II veteran's 
active military or naval service, including date and type of separation, 
and what we accept as evidence of entitlement to wage credits

[[Page 323]]

for membership in a uniformed service during the years 1957 through 
1967.



Sec. 404.1302  Definitions.

    As used in this subpart--
    Act means the Social Security Act, as amended.
    Active duty means periods of time an individual is on full-time duty 
in the active military or naval service after 1956 and includes active 
duty for training after 1956.
    Active service means periods of time prior to 1957 an individual was 
on full-time duty in the active military or naval service. It does not 
include totaling periods of active duty for training purposes before 
1957 which are less than 90 days.
    Allied country means a country at war on September 16, 1940, with a 
country with which the United States was at war during the World War II 
period. Each of the following countries is considered an allied country: 
Australia, Belgium, Canada, Czechoslovakia, Denmark, France, India, 
Luxembourg, the Netherlands, New Zealand, Norway, Poland, Union of South 
Africa, and the United Kingdom.
    Domiciled in the United States means an individual has a true, 
fixed, and permanent home in the United States to which the individual 
intends to return whenever he or she is absent.
    Federal benefit means a benefit which is payable by another Federal 
agency (other than the Veterans Administration) or an instrumentality 
owned entirely by the United States under any law of the United States 
or under a program or pension system set up by the agency or 
instrumentality.
    Post-World War II period means the time period July 25, 1947, 
through December 31, 1956.
    Reserve component means Army Reserve, Naval Reserve, Marine Corps 
Reserve, Air Force Reserve, Coast Guard Reserve, National Guard of the 
United States or Air National Guard of the United States.
    Resided in the United States means an individual had a place where 
he or she lived, whether permanently or temporarily, in the United 
States and was bodily present in that place.
    Survivor means you are a parent, widow, divorced wife, widower, or 
child of a deceased veteran or member of a uniformed service.
    United States means the 50 States, the District of Columbia, the 
Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American 
Samoa.
    Veteran means an individual who served in the active military or 
naval service of the United States and was discharged or released from 
that service under conditions other than dishonorable. For a more 
detailed definition of the World War II veteran and a post-World War II 
veteran, see Secs. 404.1310 and 404.1320.
    Wage credit means a dollar amount we add to the earnings record of a 
veteran of the World War II or the post-World War II period. It is also 
a dollar amount we add to the earnings record of a member of a uniformed 
service who was on active duty after 1956. The amount is set out in the 
Act and is added for each month, calendar quarter, or calendar year of 
service as required by law.
    We, us, or our means the Social Security Administration.
    World War II period means the time period September 16, 1940, 
through July 24, 1947.
    You or your means a veteran, a veteran's survivor or a member of a 
uniformed service applying for or entitled to a social security benefit 
or a lump-sum death payment.

                          World War II Veterans



Sec. 404.1310  Who is a World War II veteran.

    You are a World War II veteran if you were in the active service of 
the United States during the World War II period and, if no longer in 
active service, you were separated from that service under conditions 
other than dishonorable after at least 90 days of active service. The 
90-day active service requirement is discussed in Sec. 404.1311.



Sec. 404.1311  Ninety-day active service requirement for World War II veterans.

    (a) The 90 days of active service required for World War II veterans 
do not have to be consecutive if the 90 days were in the World War II 
period. The 90-day requirement cannot be met by totaling the periods of 
active duty for

[[Page 324]]

training purposes which were less than 90 days.
    (b) If, however, all of the 90 days of active service required for 
World War II veterans were not in the World War II period, the 90 days 
must (only in those circumstances) be consecutive if the 90 days began 
before September 16, 1940, and ended on or after that date, or began 
before July 25, 1947, and ended on or after that date.
    (c) The 90 days of active service is not required if the World War 
II veteran died in service or was separated from service under 
conditions other than dishonorable because of a disability or injury 
which began or worsened while performing service duties.



Sec. 404.1312  World War II service included.

    Your service was in the active service of the United States during 
the World War II period if you were in the--
    (a) Army, Navy, Marine Corps, or Coast Guard, or any part of them;
    (b) Commissioned corps of the United States Public Health Service 
and were--
    (1) On active commissioned service during the period beginning 
September 16, 1940, through July 28, 1945, and the active service was 
done while on detail to the Army, Navy, Marine Corps, or Coast Guard; or
    (2) On active commissioned service during the period beginning July 
29, 1945, through July 24, 1947, regardless of whether on detail to the 
Army, Navy, Marine Corps, or Coast Guard;
    (c) Commissioned corps of the United States Coast and Geodetic 
Survey and were--
    (1) During the World War II period--
    (i) Transferred to active service with the Army, Navy, Marine Corps, 
or Coast Guard; or
    (ii) Assigned to active service on military projects in areas 
determined by the Secretary of Defense to be areas of immediate military 
hazard; or
    (2) On active service in the Philippine Islands on December 7, 1941; 
or
    (3) On active service during the period beginning July 29, 1945, 
through July 24, 1947;
    (d) Philippine Scouts and performed active service during the World 
War II period under the direct supervision of recognized military 
authority;
    (e) Active service of an allied country during the World War II 
period and--
    (1) Had entered into that active service before December 9, 1941;
    (2) Were a citizen of the United States throughout that period of 
active service or lost your United States citizenship solely because of 
your entrance into that service;
    (3) Had resided in the United States for a total of four years 
during the five-year period ending on the day you entered that active 
service; and
    (4) Were domiciled in the United States on that day; or
    (f) Women's Army Auxiliary Corps, during the period May 14, 1942, 
through September 29, 1943, and performed active service with the Army, 
Navy, Marine Corps, or Coast Guard after September 29, 1943.



Sec. 404.1313  World War II service excluded.

    Your service was not in the active service of the United States 
during the World War II period if, for example, you were in the--
    (a) Women's Army Auxiliary Corps, except as described in 
Sec. 404.1312(f);
    (b) Coast Guard Auxiliary;
    (c) Coast Guard Reserve (Temporary) unless you served on active 
full-time service with military pay and allowances;
    (d) Civil Air Patrol; or
    (e) Civilian Auxiliary to the Military Police.

                       Post-World War II Veterans



Sec. 404.1320  Who is a post-World War II veteran.

    You are a post-World War II veteran if you were in the active 
service of the United States during the post-World War II period and, if 
no longer in active service, you were separated from the service under 
conditions other than dishonorable after at least 90 days of active 
service. The 90-day active service requirement is discussed in 
Sec. 404.1321.

[[Page 325]]



Sec. 404.1321  Ninety-day active service requirement for post-World War II veterans.

    (a) The 90 days of active service required for post-World War II 
veterans do not have to be consecutive if the 90 days were in the post-
World War II period. The 90-day requirement cannot be met by totaling 
the periods of active duty for training purposes before 1957 which were 
less than 90 days.
    (b) If, however, all of the 90 days of active service required for 
post-World War II veterans were not in the post-World War II period, the 
90 days must (only in those circumstances) be consecutive if the 90 days 
began before July 25, 1947, and ended on or after that date, or began 
before January 1, 1957, and ended on or after that date.
    (c) The 90 days of active service is not required if the post-World 
War II veteran died in service or was separated from service under 
conditions other than dishonorable because of a disability or injury 
which began or worsened while performing service duties.



Sec. 404.1322  Post-World War II service included.

    Your service was in the active service of the United States during 
the post-World War II period if you were in the--
    (a) Air Force, Army, Navy, Marine Corps, Coast Guard, or any part of 
them;
    (b) Commissioned corps of the United States Public Health Service 
and were on active service during that period;
    (c) Commissioned corps of the United States Coast and Geodetic 
Survey and were on active service during that period; or
    (d) Philippine Scouts and performed active service during the post-
World War II period under the direct supervision of recognized military 
authority.



Sec. 404.1323  Post-World War II service excluded.

    Your service was not in the active service of the United States 
during the post-World War II period if, for example, you were in the--
    (a) Coast Guard Auxiliary;
    (b) Coast Guard Reserve (Temporary) unless you served on active 
full-time service with military pay and allowances;
    (c) Civil Air Patrol; or
    (d) Civilian Auxiliary to the Military Police.

                     Separation from Active Service



Sec. 404.1325  Separation from active service under conditions other than dishonorable.

    Separation from active service under conditions other than 
dishonorable means any discharge or release from the active service 
except--
    (a) A discharge or release for desertion, absence without leave, or 
fraudulent entry;
    (b) A dishonorable or bad conduct discharge issued by a general 
court martial of the Army, Navy, Air Force, Marine Corps, or Coast Guard 
of the United States, or by the active service of an allied country 
during the World War II period;
    (c) A dishonorable discharge issued by the United States Public 
Health Service or the United States Coast and Geodetic Survey;
    (d) A resignation by an officer for the good of the service;
    (e) A discharge or release because the individual was a 
conscientious objector; or
    (f) A discharge or release because the individual was convicted by a 
civil court for treason, sabotage, espionage, murder, rape, arson, 
burglary, robbery, kidnapping, assault with intent to kill, assault with 
a deadly weapon, or because of an attempt to commit any of these crimes.

[45 FR 16464, Mar. 14, 1980; 45 FR 22023, Apr. 3, 1980]

                    Members of the Uniformed Services



Sec. 404.1330  Who is a member of a uniformed service.

    A member of a uniformed service is an individual who served on 
active duty after 1956. You are a member of a uniformed service if you--
    (a) Are appointed, enlisted, or inducted into--
    (1) The Air Force, Army, Navy, Coast Guard, or Marine Corps; or

[[Page 326]]

    (2) A reserve component of the uniformed services in paragraph 
(a)(1) of this section (except the Coast Guard Reserve as a temporary 
member);
    (b) Served in the Army or Air Force under call or conscription;
    (c) Are a commissioned officer of the National Oceanic and 
Atmospheric Administration or its predecessors, the Environmental 
Science Services Administration and the Coast and Geodetic Survey;
    (d) Are a commissioned officer of the Regular or Reserve Corps of 
the Public Health Service;
    (e) Are a retired member of any of the above services;
    (f) Are a member of the Fleet Reserve or Fleet Marine Corps Reserve;
    (g) Are a cadet at the United States Military Academy, Air Force 
Academy, or Coast Guard Academy, or a midshipman at the United States 
Naval Academy; or
    (h) Are a member of the Reserve Officers Training Corps of the Army, 
Navy or Air Force, when ordered to annual training duty for at least 14 
days and while performing official travel to and from that duty.

             Amounts of Wage Credits and Limits on Their Use



Sec. 404.1340  Wage credits for World War II and post-World War II veterans.

    In determining your entitlement to, and the amount of, your monthly 
benefit or lump-sum death payment based on your active service during 
the World War II period or the post-World War II period, and for 
establishing a period of disability as discussed in Secs. 404.132 and 
404.133, we add the (deemed) amount of $160 for each month during a part 
of which you were in the active service as described in Sec. 404.1312 or 
Sec. 404.1322. For example, if you were in active service from October 
11, 1942, through August 10, 1943, we add the (deemed) amount of $160 
for October 1942 and August 1943 as well as November 1942 through July 
1943. The amount of wage credits that are added in a calendar year 
cannot cause the total amount credited to your earnings record to exceed 
the annual earnings limitation explained in Secs. 404.1047 and 
404.1096(b).



Sec. 404.1341  Wage credits for a member of a uniformed service.

    (a) General. In determining your entitlement to, and the amount of 
your monthly benefit (or lump sum death payment) based on your wages 
while on active duty as a member of the uniformed service after 1956, 
and for establishing a period of disability as discussed in 
Sec. 404.132, we add wage credits to the wages paid you as a member of 
that service. The amount of the wage credits, the applicable time 
periods, the wage credit amount limits, and the requirement of a minimum 
period of active duty service for granting these wage credits, are 
discussed in paragraphs (b), (c), and (d) of this section.
    (b) Amount of wage credits. The amount of wage credits added is--
    (1) $100 for each $300 in wages paid to you for your service in each 
calender year after 1977; and
    (2) $300 for each calendar quarter in 1957 through 1977, regardless 
of the amount of wages actually paid you during that quarter for your 
service.
    (c) Limits on wage credits. The amount of these wage credits cannot 
exceed--
    (1) $1200 for any calendar year, or
    (2) An amount which when added to other earnings causes the total 
earnings for the year to exceed the annual earnings limitation explained 
in Secs. 404.1047 and 404.1096(b).
    (d) Minimum active-duty service requirement. (1) If you enlisted for 
the first time in a regular component of the Armed Forces on or after 
September 8, 1980, you must complete the shorter of 24 months of 
continuous active duty or the full period that you were called to active 
duty to receive these wage credits, unless:
    (i) You are discharged or released from active duty for the 
convenience of the government in accordance with section 1171 of title 
10 U.S.C. or because of hardship as specified in section 1173 of title 
10 U.S.C.;
    (ii) You are discharged or released from active duty for a 
disability incurred or aggravated in line of duty;
    (iii) You are entitled to compensation for service-connected 
disability or death under chapter 11 of title 38 U.S.C.;
    (iv) You die during your period of enlistment; or

[[Page 327]]

    (v) You were discharged prior to October 14, 1982, and your 
discharge was--
    (A) Under chapter 61 of title 10 U.S.C.; or
    (B) Because of a disability which resulted from an injury or disease 
incurred in or aggravated during your enlistment which was not the 
result of your intentional misconduct and did not occur during a period 
of unauthorized absence.
    (2) If you entered on active duty as a member of the uniformed 
services as defined in Sec. 404.1330 on or after October 14, 1982, 
having neither previously completed a period of 24 months' active duty 
nor been discharged or released from this period of active duty under 
section 1171, title 10 U.S.C. (i.e., convenience of the government), you 
must complete the shorter of 24 months of continuous active duty or the 
full period you were called or ordered to active duty to receive these 
wage credits, unless:
    (i) You are discharged or released from active duty for the 
convenience of the government in accordance with section 1171 of title 
10 U.S.C. or because of hardship as specified in section 1173 of title 
10 U.S.C.;
    (ii) You are discharged or released from active duty for a 
disability incurred or aggravated in line of duty;
    (iii) You are entitled to compensation for service-connected 
disability or death under chapter 11 of title 38 U.S.C.; or
    (iv) You die during your period of active service.

[45 FR 16464, Mar. 14, 1980, as amended at 52 FR 29663, Aug. 11, 1987]



Sec. 404.1342  Limits on granting World War II and post-World War II wage credits.

    (a) You get wage credits for World War II or post-World War II 
active service only if the use of the wage credits results in 
entitlement to a monthly benefit, a higher monthly benefit, or a lump-
sum death payment.
    (b) You may get wage credits for active service in July 1947 for 
either the World War II period or the post-World War II period but not 
for both. If your active service is before and on or after July 25, 
1947, we add the $160 wage credit to the period which is most 
advantageous to you.
    (c) You do not get wage credits for the World War II period if 
another Federal benefit (other than one payable by the Veterans 
Administration) is determined by a Federal agency or an instrumentality 
owned entirely by the United States to be payable to you, even though 
the Federal benefit is not actually paid or is paid and then terminated, 
based in part on your active service during the World War II period 
except as explained in Sec. 404.1343.
    (d) You do not get wage credits for the post-World War II period if 
another Federal benefit (other than one payable by the Veterans 
Administration) is determined by a Federal agency or an instrumentality 
owned entirely by the United States to be payable to you, even though 
the Federal benefit is not actually paid or is paid and then terminated, 
based in part on your active service during the post-World War II period 
except as explained in Sec. 404.1343.



Sec. 404.1343  When the limits on granting World War II and post-World War II wage credits do not apply.

    The limits on granting wage credits described in Sec. 404.1342 (c) 
and (d) do not apply--
    (a) If the wage credits are used solely to meet the insured status 
and quarters of coverage requirements for a period of disability as 
described in Secs. 404.132 and 404.133;
    (b) If you are the surviving spouse or child of a veteran of the 
World War II period or post-World War II period and you are entitled 
under the Civil Service Retirement Act of 1930 to a survivor's annuity 
based on the veteran's active service and--
    (1) You give up your right to receive the survivor's annuity;
    (2) A benefit under the Civil Service Retirement Act of 1930 based 
on the veteran's active service was not payable to the veteran; and
    (3) Another Federal benefit is not payable to the veteran or his or 
her survivors except as described in paragraph (c) of this section; or
    (c) For the years 1951 through 1956, if another Federal benefit is 
payable by the Army, Navy, Air Force, Marine Corps, Coast Guard, Coast 
and Geodetic

[[Page 328]]

Survey, or the Public Health Service based on post-World War II active 
service but only if the veteran was also paid wages as a member of a 
uniformed service after 1956.

[45 FR 16464, Mar. 14, 1980, as amended at 49 FR 24118, June 12, 1984]

               Deemed Insured Status for World II Veterans



Sec. 404.1350  Deemed insured status.

    (a) When deemed insured status applies. If you are the survivor of a 
World War II veteran, we consider the veteran to have died fully insured 
as discussed in Sec. 404.111 and we include wage credits in determining 
your monthly benefit or lump-sum death payment if--
    (1) The veteran was separated from active service of the United 
States before July 27, 1951; and
    (2) The veteran died within 3 years after separation from active 
service and before July 27, 1954.
    (b) Amount of credit given for deemed insured World War II veterans. 
(1) When we compute a survivor's benefit or lump-sum death payment, we 
give credit for--
    (i) $200 (for increment year purposes) for each calendar year in 
which the veteran had at least 30 days of active service beginning 
September 16, 1940, through 1950; and
    (ii) An average monthly wage of $160.
    (2) If the World War II veteran was fully or currently insured 
without the wage credits, we add increment years (years after 1936 and 
prior to 1951 in which the veteran had at least $200 in creditable 
earnings) to the increment years based on the veteran's wages.



Sec. 404.1351  When deemed insured status does not apply.

    As a survivor of a World War II veteran, you cannot get a monthly 
benefit or lump-sum death payment based on the veteran's deemed insured 
status as explained in Sec. 404.1350 if--
    (a) Your monthly benefit or lump-sum death payment is larger without 
using the wage credits;
    (b) The Veterans Administration has determined that a pension or 
compensation is payable to you based on the veteran's death;
    (c) The veteran died while in the active service of the United 
States;
    (d) The veteran was first separated from active service after July 
26, 1951;
    (e) The veteran died after July 26, 1954; or
    (f) The veteran's only service during the World War II period was by 
enlistment in the Philippine Scouts as authorized by the Armed Forces 
Voluntary Recruitment Act of 1945 (Pub. L. 190 of the 79th Congress).



Sec. 404.1352  Benefits and payments based on deemed insured status.

    (a) Our determination. We determine your monthly benefit or lump-sum 
death payment under the deemed insured status provisions in 
Secs. 404.1350 and 404.1351 regardless of whether the Veterans 
Administration has determined that any pension or compensation is 
payable to you.
    (b) Certification for payment. If we determine that you can be paid 
a monthly benefit or lump-sum death payment, we certify these benefits 
for payment. However, the amount of your monthly benefit or lump-sum 
death payment may be changed if we are informed by the Veterans 
Administration that a pension or compensation is payable because of the 
veteran's death as explained in Sec. 404.1360.
    (c) Payments not considered as pension or compensation. We do not 
consider as pension or compensation--
    (1) National Service Life Insurance payments;
    (2) United States Government Life Insurance payments; or
    (3) Burial allowance payments made by the Veterans Administration.

  Effect of Other Benefits on Payment of Social Security Benefits and 
                                Payments



Sec. 404.1360  Veterans Administration pension or compensation payable.

    (a) Before we determine and certify payment. If we are informed by 
the Veterans Administration that a pension or compensation is payable to 
you before we determine and certify payment of benefits based on deemed 
insured status, we compute your monthly benefit or lump-sum death 
payment based on the death of the World War II veteran

[[Page 329]]

without using the wage credits discussed in Sec. 404.1350.
    (b) After we determine and certify payment. If we are informed by 
the Veterans Administration that a pension or compensation is payable to 
you after we determine and certify payment of benefits based on deemed 
insured status, we--
    (1) Stop payment of your benefits or recompute the amount of any 
further benefits that can be paid to you; and
    (2) Determine whether you were erroneously paid and the amount of 
any erroneous payment.



Sec. 404.1361  Federal benefit payable other than by Veterans Administration.

    (a) Before we determine and certify payment. If we are informed by 
another Federal agency or instrumentality of the United States (other 
than the Veterans Administration) that a Federal benefit is payable to 
you by that agency or instrumentality based on the veteran's World War 
II or post-World War II active service before we determine and certify 
your monthly benefit or lump-sum death payment, we compute your monthly 
benefit or lump-sum death payment without using the wage credits 
discussed in Sec. 404.1340.
    (b) After we determine and certify payment. If we are informed by 
another Federal agency or instrumentality of the United States (other 
than the Veterans Administration) that a Federal benefit is payable to 
you by that agency or instrumentality based on the veteran's World War 
II or post-World War II active service after we determine and certify 
payment, we--
    (1) Stop payment of your benefits or recompute the amount of any 
further benefits that can be paid to you; and
    (2) Determine whether you were erroneously paid and the amount of 
any erroneous payment.



Sec. 404.1362  Treatment of social security benefits or payments where Veterans Administration pension or compensation payable.

    (a) Before we receive notice from the Veterans Administration. If we 
certify your monthly benefit or a lump-sum death payment as determined 
under the deemed insured status provisions in Sec. 404.1350 before we 
receive notice from the Veterans Administration that a pension or 
compensation is payable to you, our payments to you are erroneous only 
to the extent that they exceed the amount of the accrued pension of 
compensation payable.
    (b) After we receive notice from the Veterans Administration. If we 
certify your monthly benefit or lump-sum death payment as determined 
under the deemed insured status provisions in Sec. 404.1350 after we 
receive notice from the Veterans Administration that a pension or 
compensation is payable to you, our payments to you are erroneous 
whether or not they exceed the amount of the accrued pension or 
compensation payable.



Sec. 404.1363  Treatment of social security benefits or payments where Federal benefit payable other than by Veterans Administration.

    If we certify your monthly benefit or lump-sum death payment based 
on World War II or post-World War II wage credits after we receive 
notice from another Federal agency or instrumentality of the United 
States (other than the Veterans Administration) that a Federal benefit 
is payable to you by that agency or instrumentality based on the 
veteran's World War II or post-World War II active service, our payments 
to you are erroneous to the extent the payments are based on the World 
War II or post-World War II wage credits. The payments are erroneous 
beginning with the first month you are eligible for the Federal benefit.

    Evidence of Active Service and Membership in a Uniformed Service



Sec. 404.1370  Evidence of active service and separation from active service.

    (a) General. When you file an application for a monthly benefit or 
lump-sum death payment based on the active service of a World War II or 
post-World War II veteran, you must submit evidence of--
    (1) Your entitlement as required by subpart H of this part or other 
evidence that may be expressly required;
    (2) The veteran's period in active service of the United States; and
    (3) The veteran's type of separation from active service of the 
United States.

[[Page 330]]

    (b) Evidence we accept. We accept as proof of a veteran's active 
service and separation from active service--
    (1) An original certificate of discharge, or an original certificate 
of service, from the appropriate military service, from the United 
States Public Health Service, or from the United States Coast and 
Geodetic Survey;
    (2) A certified copy of the original certificate of discharge or 
service made by the State, county, city agency or department in which 
the original certificate is recorded;
    (3) A certification from the appropriate military service, United 
States Public Health Service, or United States Coast and Geodetic Survey 
showing the veteran's period of active service and type of separation;
    (4) A certification from a local selective service board showing the 
veteran's period of active service and type of separation; or
    (5) Other evidence that proves the veteran's period of active 
service and type of separation.



Sec. 404.1371  Evidence of membership in a uniformed service during the years 1957 through 1967.

    (a) General. When you file an application for a monthly benefit or 
lump-sum death payment based on the services of a member of a uniformed 
service during the years 1957 through 1967, you should submit evidence 
identifying the member's uniformed service and showing the period(s) he 
or she was on active duty during those years.
    (b) Evidence we accept. The evidence we will accept includes any 
official correspondence showing the member's status as an active service 
member during the appropriate period, a certification of service by the 
uniformed service, official earnings statements, copies of the member's 
Form W-2, and military orders, for the appropriate period.



   Subpart O--Interrelationship of Old-Age, Survivors and Disability 
         Insurance Program With the Railroad Retirement Program

    Authority:  Secs. 202(l), 205(a), (c)(5)(D), (i), and (o), 210(a)(9) 
and (l)(4), 211(c)(3), and 702(a)(5) of the Social Security Act (42 
U.S.C. 402(l), 405(a), (c)(5)(D), (i), and (o), 410(a)(9) and (l)(4), 
411(c)(3), and 902(a)(5)).

    Cross Reference: For regulations under the Railroad Retirement Act, 
see chapter II of this title.



Sec. 404.1401  General relationship of Railroad Retirement Act with the old-age, survivors and disability insurance program of the Social Security Act.

    The Railroad Retirement Act sets up a system of benefits for 
railroad employees, their dependents and survivors, and has been 
integrated with the Social Security Act to provide a coordinated system 
of retirement, survivor, dependent and disability benefits payable on 
the basis of an individual's work in the railroad industry and in 
employment and self-employment covered by the Social Security Act. With 
respect to the coordination between the two programs, the Railroad 
Retirement Act distinguishes between ``career'' railroad workers and 
those individuals who may be considered ``casual'' railroad workers. The 
line of demarcation is generally 10 years of service in the railroad 
industry, including service prior to 1937. The Railroad Retirement Act 
transfers to the old-age, survivors and disability insurance system the 
compensation records of individuals who at the time of retirement, onset 
of disability or death have less than 10 years of service in the 
railroad industry and meet certain other requirements. Any compensation 
paid to such individuals for such service after 1936 becomes wages under 
the Social Security Act (to the extent they do not exceed the annual 
wage limitations described in Sec. 404.1027(a)). Whatever benefits are 
payable to them, their dependents, and their survivors are computed on 
the basis of the combined compensation and social security covered 
earnings creditable to the individuals' records. The compensation paid 
to individuals with 10 or more years of railroad service remain under 
the Railroad Retirement Act, but in certain circumstances, the 
compensation of such workers who die may be transferred to the old-age, 
survivors, and disability insurance program (see Secs. 404.1402(b) and 
404.1407). Under certain circumstances (see Sec. 404.1413), 
certification of benefits payable under the

[[Page 331]]

provisions of the Social Security Act will be made to the Railroad 
Retirement Board. The Railroad Board will certify such benefits to the 
Secretary of the Treasury.

[42 FR 18272, Apr. 6. 1977]



Sec. 404.1402  When services in the railroad industry are covered.

    Services performed by an individual in the railroad industry which 
would, but for the provisions of this section, be excepted from 
``employment'' by reason of Sec. 404.1017 shall be considered to be 
included under ``employment'' as defined in section 210 of the Act in 
the following situations:
    (a) For the purpose of determining entitlement to, or the amount of, 
any monthly benefits or lump-sum death payment on the basis of the wages 
and self-employment income of an individual where the years of service 
in the railroad industry are less than 10;
    (b) For the purpose of determining entitlement to, or the amount of, 
any survivor monthly benefit or any lump-sum death payment on the basis 
of the wages and self-employment income of an individual whose years of 
service in the railroad industry were 10 or more but a ``current 
connection'', as defined in section 1(o) of the Railroad Retirement Act 
of 1974 (45 U.S.C. 228a), with the railroad industry did not exist at 
the time of death; (in such cases, survivor benefits are not payable 
under the Railroad Retirement Act);
    (c) For the purpose of determining entitlement to a period of 
disability (see subpart B of this part) on the basis of the wages and 
self-employment income of an individual; or
    (d) For the purpose of applying the provisions of section 203 of the 
Act concerning deductions from benefits under the retirement test (see 
subpart E of this part).

[42 FR 18273, Apr. 6, 1977]



Sec. 404.1403  Definition of ``years of service''.

    The term ``years of service'' as used in this subpart has the same 
meaning as assigned to it by section 1(f) of the Railroad Retirement 
Act.

[18 FR 8694, Dec. 24, 1953, as amended at 25 FR 5182, June 10, 1960]



Sec. 404.1404  Effective date of coverage of railroad services under the act.

    Coverage under the act of services performed after 1936 by an 
individual in the railroad industry is effective as follows:
    (a) The provisions of paragraphs (a) and (b) of Sec. 404.1402 
insofar as they relate to survivor monthly benefits are effective for 
months after December 1946 and insofar as they relate to lump-sum death 
payments are effective with respect to deaths after 1946;
    (b) The provisions of paragraph (a) of Sec. 404.1402 insofar as they 
relate to old-age insurance benefits or monthly benefits of dependents 
of old-age insurance beneficiaries are effective November 1, 1951; 
insofar as they relate to disability insurance benefits are effective 
for months after June 1957; and insofar as they relate to monthly 
benefits for dependents of disability insurance beneficiaries are 
effective for months after August 1958;
    (c) The provisions of paragraph (c) of Sec. 404.1402 are effective 
for benefits for months after June 1955; and
    (d) The provisions of paragraph (d) of Sec. 404.1402 are effective 
November 1, 1951.

[25 FR 5182, June 10, 1960]



Sec. 404.1405  When the provisions of Sec. 404.1402 do not apply.

    (a) Awards by the Railroad Retirement Board prior to October 30, 
1951. The provisions of Sec. 404.1402(a) shall not apply with respect to 
the wages and self-employment income of an individual if, prior to 
October 30, 1951, the Railroad Retirement Board has awarded under the 
Railroad Retirement Act a retirement annuity to such individual or a 
survivor annuity with respect to the death of such individual and such 
retirement or survivor annuity, as the case may be, was payable at the 
time an application for benefits is filed under the Social Security Act 
on the basis of the wages and self-employment income of such individual. 
A pension payable under section 6 of the Railroad Retirement Act of 1937 
as in effect prior to the Railroad Retirement Act of 1974, or an annuity 
paid in a lump sum equal to its commuted value under section 3(i) of the 
Railroad Retirement

[[Page 332]]

Act in effect prior to the Social Security Act of October 30, 1951, is 
not a ``retirement or survivor annuity'' for the purpose of this 
paragraph.
    (b) Individual continues to work in railroad industry after 
establishing entitlement to benefits under section 202(a). An 
individual's service in the railroad industry used, pursuant to the 
provisions of Sec. 404.1402, to establish entitlement to or to determine 
the amount of, his old-age insurance benefits under section 202(a) shall 
not be deemed to be in ``employment'' as defined in section 210 of the 
Act, if he renders service in the railroad industry after the effective 
date of such benefits and his years of service attributable thereto when 
added to his years of service prior to such effective date are 10 or 
more. Such benefits and any benefits payable to the spouse or child of 
such individual under section 202(b), (c), or (d) of the Act on the 
basis of his wages and self-employment income shall be terminated with 
the month preceding the month in which such individual acquires his 
tenth year of service. If, however, an insured status (see subpart B of 
this part) exists without the use of compensation, such benefits shall, 
in lieu of termination, be recalculated without using such compensation 
and the recalculated benefits shall be payable with the month in which 
the tenth year of service was acquired. Any monthly benefits paid prior 
to such month shall not be deemed erroneous by reason of the use of such 
compensation.

[18 FR 8694, Dec. 24, 1953, as amended at 25 FR 5182, June 10, 1960; 42 
FR 18273, Apr. 6, 1977]



Sec. 404.1406  Eligibility to railroad retirement benefits as a bar to payment of social security benefits.

    Notwithstanding the fact that, pursuant to the preceding provisions 
of this subpart, services rendered by an individual in the railroad 
industry are in employment, no lump-sum death payment or survivor 
monthly benefits shall be paid (except as provided in Sec. 404.1407) 
under the regulations in this part on the basis of such individual's 
wages and self-employment income if any person, upon filing application 
therefor, would be entitled to an annuity under section 2 of the 
Railroad Retirement Act of 1974 or a lump-sum payment under section 6(b) 
of such Act with respect to the death of that individual; or for periods 
prior to 1975, would have been entitled to an annuity under section 5 or 
a lump-sum payment under section 5(f)(1) of the Railroad Retirement Act 
of 1937 with respect to the death of that individual.

[42 FR 18273, Apr. 6, 1977]



Sec. 404.1407  When railroad retirement benefits do not bar payment of social security benefits.

    The provisions of Sec. 404.1406 shall not operate if:
    (a) The survivor is, or upon filing application would be, entitled 
to a monthly benefit with respect to the death of an insured individual 
for a month prior to January 1947, if such monthly benefit is greater in 
amount than the survivor annuity payable to such survivor after 1946 
under the Railroad Retirement Act; or
    (b) The residual lump-sum payment provided by section 6(c) of the 
Railroad Retirement Act of 1974 (or section 5(f)(2) of the Railroad 
Retirement Act of 1937 prior to the 1974 Act) with respect to the death 
of an insured individual is paid by the Railroad Retirement Board 
pursuant to an irrevocable election filed with the Board by the widow, 
widower, or parent of such individual to waive all future annuities or 
benefits based on the combined record of earnings and compensation to 
which such widow, widower or parent might become entitled, but only to 
the extent that widow's, widower's or parent's benefits may be payable 
under the regulations of this part to such widow, widower or parent, as 
the case may be, solely on the basis of the wages and self-employment 
income of such deceased individual and without regard to any 
compensation which may be treated as wages pursuant to Sec. 404.1408.

[42 FR 18273, Apr. 6, 1977]



Sec. 404.1408  Compensation to be treated as wages.

    Where, pursuant to the preceding provisions of this subpart, 
services rendered by an individual in the railroad

[[Page 333]]

industry are considered to be in employment as defined in section 210 of 
the Social Security Act (see subpart K of this part) any compensation 
(as defined in section 1(h) of the Railroad Retirement Act of 1974 or 
prior to the 1974 Act, section 1(h) of the Railroad Retirement Act of 
1937) received by such individual for such services shall constitute 
wages provided that the provisions of Sec. 404.1406 do not operate to 
bar the payment of benefits under title II of the Social Security Act; 
except that any compensation attributable as having been paid during any 
month on account of military service creditable under section 1 of the 
Railroad Retirement Act of 1974 (or section 4 of the Railroad Retirement 
Act of 1937 prior to the 1974 Act) shall not constitute wages for 
purposes of title II of the Social Security Act if, based on such 
military service, wages are deemed to have been paid to such individual 
during such month under the provisions described in Sec. 404.1308 or 
Sec. 404.1309.

[42 FR 18273, Apr. 6, 1977]



Sec. 404.1409  Purposes of using compensation.

    Compensation which is treated as wages under Sec. 404.1408 shall be 
used, together with wages (see subpart K of this part) and self-
employment income (see subpart K of this part), for purposes of:
    (a) Determining an individual's insured status for monthly benefits 
or the lump-sum death payment (see subpart B of this part);
    (b) Computing such individual's primary insurance amount (see 
subpart C of this part);
    (c) Determining an individual's entitlement to the establishment of 
a period of disability (see subpart B of this part for disability 
insured status requirements); and
    (d) Applying the deduction provisions of section 203 of the act (see 
subpart E of this part).

[25 FR 5183, June 10, 1960]



Sec. 404.1410  Presumption on basis of certified compensation record.

    (a) Years prior to 1975. Where the Railroad Retirement Board 
certifies to the Social Security Administration a report of record of 
compensation, which is treated as wages under Sec. 404.1408, and periods 
of service which do not identify the months or quarters in which such 
compensation was paid, the sum of the compensation quarters of coverage 
(see Sec. 404.1412) will be presumed, in the absence of evidence to the 
contrary, to represent an equivalent number of quarters of coverage (see 
Secs. 404.103 and 404.104). No more than four quarters of coverage shall 
be credited to an individual in a single calendar year.
    (b) Years after 1974. Compensation paid in a calendar year will, in 
the absence of evidence to the contrary, be presumed to have been paid 
in equal proportions with respect to all months in the year in which the 
employee will have been in railroad service. (For years prior to 1975, 
see Sec. 404.1412.)
    (c) Allocation of compensation to months of service. If by means of 
the presumptions in this section an individual does not have an insured 
status (see subpart B of this part) on the basis of quarters of coverage 
with which he is credited, or a deceased individual's primary insurance 
amount (see Sec. 404.201) may be affected because he attained age 22 
after 1936, the Administration may request the Railroad Retirement Board 
to furnish a report of the months in which such individual rendered 
service for compensation which is treated as wages under Sec. 404.1408 
if it appears the identification of such months may result in an insured 
status or if it will affect such primary insurance amount.
    (d) Effect of self-employment income and maximum earnings. However, 
if such individual also had self-employment income for a taxable year 
and the sum of such income and wages (including compensation which is 
treated as wages under Sec. 404.1408) paid to or received by him during 
such taxable year equals the following amounts, each calendar quarter 
any part of which falls in such taxable year, shall be a quarter of 
coverage:
    (1) After 1950 and prior to 1955, equals $3,600 of remuneration;
    (2) After 1954 and prior to 1959, equals $4,200 of remuneration;
    (3) After 1958 and prior to 1966, equals $4,800 of remuneration;

[[Page 334]]

    (4) After 1965 and prior to 1968, equals $6,600 of remuneration;
    (5) After 1967 and beginning prior to 1972, equals $7,800 of 
remuneration (including a fiscal year which began in 1971 and ended in 
1972);
    (6) Beginning after 1971 and prior to 1973, equals $9,000 of 
remuneration;
    (7) Beginning after 1972 and prior to 1974, equals $10,800 of 
remuneration;
    (8) Beginning after 1973 and prior to 1975, equals $13,200 of 
remuneration;
    (9) Beginning after 1974 and prior to 1976, equals $14,100 of 
remuneration;
    (10) Beginning after 1975 and prior to 1977, equals $15,300 of 
remuneration; or
    (11) Beginning after 1976, and amount equal to the contribution and 
benefit base as determined under section 230 of the Social Security Act 
which is effective for such calendar year.


This subsection is an exception to the rule in paragraph (a) of this 
section concerning a presumption applicable to conversion of railroad 
compensation into quarters of coverage for years prior to 1975.

[42 FR 18273, Apr. 6, 1977]



Sec. 404.1412  Compensation quarters of coverage.

    As used in this subpart, a compensation quarter of coverage is any 
quarter of coverage computed with respect to compensation paid to an 
individual for railroad employment after 1936 and prior to 1975 in 
accordance with the provisions for determining such quarters of coverage 
as contained in section 5(l)(4) of the Railroad Retirement Act of 1937. 
(For years beginning 1975, see Sec. 404.1410(b)).

[42 FR 18274, Apr. 6, 1977]



Sec. 404.1413  Certification of payment to Railroad Retirement Board.

    Certification of benefits shall be made to the Railroad Retirement 
Board upon final decision of the Secretary of Health, Education, and 
Welfare that any person is entitled to any payment or payments under 
title II and that certification shall include the name and address of 
the person so entitled to receive such payment or payments, the amount 
of such payment or payments, and the time at which such payment or 
payments should be made which shall provide for payment on behalf of the 
Managing Trustee if:
    (a) The claimant will have completed 10 years of service under the 
Railroad Retirement Act of 1937, the Railroad Retirement Act of 1974, or 
any combination of service under such Acts; or
    (b) The claimant is the wife or husband of an individual who has 
completed 10 years of service under the Railroad Retirement Act of 1937, 
the Railroad Retirement Act of 1974, or any combination of service under 
such Acts; or
    (c) The claimant is the survivor of an individual who had completed 
10 years of service under the Railroad Retirement Act of 1937, the 
Railroad Retirement Act of 1974, or any combination of service under 
such Acts, if such survivor is entitled, or could upon application be 
entitled to an annuity under section 2 of the Railroad Retirement Act of 
1974; or
    (d) The claimant is entitled to benefits under section 202 of the 
Social Security Act on the basis of the wages and self-employment income 
of an individual who has 10 years of railroad service (except a survivor 
of such individual if such individual did not have a current connection, 
as defined in section 1(o) of the Railroad Retirement Act of 1974 (45 
U.S.C. 228a) with the railroad industry at the time of his death).

The applicability limitations identified in paragraphs (a) through (d) 
of this section affects any claimant who first becomes entitled to 
benefits under title II of the Social Security Act after 1974. (See also 
Sec. 404.968.)

[42 FR 18274, Apr. 6, 1977]



             Subpart P--Determining Disability and Blindness

    Authority:  Secs. 202, 205(a), (b), and (d)-(h), 216(i), 221(a) and 
(i), 222(c), 223, 225, and 702(a)(5) of the Social Security Act (42 
U.S.C. 402, 405(a), (b), and (d)-(h), 416(i), 421(a) and (i), 422(c), 
423, 425, and 902(a)(5)); sec. 211(b), Pub. L. 104-193, 110 Stat. 2105, 
2189.

    Source:  45 FR 55584, Aug. 20, 1980, unless otherwise noted.

[[Page 335]]

                                 General



Sec. 404.1501  Scope of subpart.

    In order for you to become entitled to any benefits based upon 
disability or blindness or to have a period of disability established, 
you must be disabled or blind as defined in title II of the Social 
Security Act. This subpart explains how we determine whether you are 
disabled or blind. We discuss a period of disability in subpart D of 
this part. We have organized the rules in the following way.
    (a) We define general terms, then discuss who makes our disability 
determinations and state that disability determinations made under other 
programs are not binding on our determinations.
    (b) We explain the term disability and note some of the major 
factors that are considered in determining whether you are disabled in 
Secs. 404.1505 through 404.1510.
    (c) Sections 404.1512 through 404.1518 contain our rules on 
evidence. We explain your responsibilities for submitting evidence of 
your impairment, state what we consider to be acceptable sources of 
medical evidence, and describe what information should be included in 
medical reports.
    (d) Our general rules on evaluating disability if you are filing a 
new application are stated in Secs. 404.1520 through 404.1523. We 
describe the steps that we go through and the order in which they are 
considered.
    (e) Our rules on medical considerations are found in Secs. 404.1525 
through 404.1530. We explain in these rules--
    (1) The purpose of the Listing of Impairments found in appendix 1 of 
this subpart and how to use it;
    (2) What we mean by the term medical equivalence and how we 
determine medical equivalence;
    (3) The effect of a conclusion by your physician that you are 
disabled;
    (4) What we mean by symptoms, signs, and laboratory findings;
    (5) How we evaluate pain and other symptoms; and
    (6) The effect on your benefits if you fail to follow treatment that 
is expected to restore your ability to work, and how we apply the rule.
    (f) In Secs. 404.1545 through 404.1546 we explain what we mean by 
the term residual functional capacity, state when an assessment of 
residual functional capacity is required, and who may make it.
    (g) Our rules on vocational considerations are found in 
Secs. 404.1560 through 404.1569a. We explain when vocational factors 
must be considered along with the medical evidence, discuss the role of 
residual functional capacity in evaluating your ability to work, discuss 
the vocational factors of age, education, and work experience, describe 
what we mean by work which exists in the national economy, discuss the 
amount of exertion and the type of skill required for work, describe and 
tell how to use the Medical-Vocational Guidelines in appendix 2 of this 
subpart, and explain when, for purposes of applying the guidelines in 
appendix 2, we consider the limitations or restrictions imposed by your 
impairment(s) and related symptoms to be exertional, nonexertional, or a 
combination of both.
    (h) Our rules on substantial gainful activity are found in 
Secs. 404.1571 through 404.1574. These explain what we mean by 
substantial gainful activity and how we evaluate your work activity.
    (i) In Secs. 404.1577, 404.1578, and 404.1579, we explain the 
special rules covering disability for widows, widowers, and surviving 
divorced spouses for monthly benefits payable for months prior to 
January 1991, and in Secs. 404.1581 through 404.1587 we discuss 
disability due to blindness.
    (j) Our rules on when disability continues and stops are contained 
in Sec. 404.1579 and Secs. 404.1588 through 404.1598. We explain what 
your responsibilities are in telling us of any events that may cause a 
change in your disability status, when you may have a trial work period, 
and when we will review to see if you are still disabled. We also 
explain how we consider the issue of medical improvement (and the 
exceptions to medical improvement) in deciding whether you are still 
disabled.

[45 FR 55584, Aug. 20, 1980, as amended at 50 FR 50126, Dec. 6, 1985; 56 
FR 57941, Nov. 14, 1991; 57 FR 30120, July 8, 1992]

[[Page 336]]



Sec. 404.1502  General definitions and terms for this subpart.

    As used in the subpart--
    Medical sources refers to treating sources, sources of record, and 
consultative examiners for us. See Sec. 404.1513.
    Secretary means the Secretary of Health and Human Services.
    Source of record means a hospital, clinic or other source that has 
provided you with medical treatment or evaluation, as well as a 
physician or psychologist who has treated or evaluated you but does not 
have or did not have an ongoing treatment relationship with you.
    State agency means that agency of a State which has been designated 
by the State to carry out the disability or blindness determination 
function.
    Treating source means your own physician or psychologist who has 
provided you with medical treatment or evaluation and who has or has had 
an ongoing treatment relationship with you. Generally, we will consider 
that you have an ongoing treatment relationship with a physician or 
psychologist when the medical evidence establishes that you see or have 
seen the physician or psychologist with a frequency consistent with 
accepted medical practice for the type of treatment and evaluation 
required for your medical condition(s). We may consider a physician or 
psychologist who has treated you only a few times or only after long 
intervals (e.g., twice a year) to be your treating source if the nature 
and frequency of the treatment is typical for your condition(s). We will 
not consider a physician or psychologist to be your treating physician 
if your relationship with the physician or psychologist is not based on 
your need for treatment, but solely on your need to obtain a report in 
support of your claim for disability. In such a case, we will consider 
the physician or psychologist to be a consulting physician or 
psychologist.
    We or us refers to either the Social Security Administration or the 
State agency making the disability or blindness determination.
    You refers to the person who has applied for benefits or for a 
period of disability or is receiving benefits based on disability or 
blindness.

[56 FR 36954, Aug. 1, 1991]

                             Determinations



Sec. 404.1503  Who makes disability and blindness determinations.

    (a) State agencies. State agencies make disability and blindness 
determinations for the Secretary for most persons living in the State. 
State agencies make these disability and blindness determinations under 
regulations containing performance standards and other administrative 
requirements relating to the disability and blindness determination 
function. States have the option of turning the function over to the 
Federal Government if they no longer want to make disability 
determinations. Also, the Secretary may take the function away from any 
State which has substantially failed to make disability and blindness 
determinations in accordance with these regulations. Subpart Q of this 
part contains the rules the States must follow in making disability and 
blindness determinations.
    (b) Social Security Administration. The Social Security 
Administration will make disability and blindness determinations for the 
Secretary for--
    (1) Any person living in a State which is not making for the 
Secretary any disability and blindness determinations or which is not 
making those determinations for the class of claimants to which that 
person belongs; and
    (2) Any person living outside the United States.
    (c) What determinations are authorized. The Secretary has authorized 
the State agencies and the Social Security Administration to make 
determinations about--
    (1) Whether you are disabled or blind;
    (2) The date your disability or blindness began; and
    (3) The date your disability or blindness stopped.
    (d) Review of State Agency determinations. On review of a State 
agency determination or redetermination of disability or blindness we 
may find that--
    (1) You are, or are not, disabled or blind, regardless of what the 
State agency found;

[[Page 337]]

    (2) Your disability or blindness began earlier or later than the 
date found by the State agency; and
    (3) Your disability or blindness stopped earlier or later than the 
date found by the State agency.
    (e) Initial determinations for mental impairments. An initial 
determination by a State agency or the Social Security Administration 
that you are not disabled (or a Social Security Administration review of 
a State agency's initial determination), in any case where there is 
evidence which indicates the existence of a mental impairment, will be 
made only after every reasonable effort has been made to ensure that a 
qualified psychiatrist or psychologist has completed the medical portion 
of the case review and any applicable residual functional capacity 
assessment. (See Sec. 404.1616 for the qualifications we consider 
necessary for a psychologist to be a psychological consultant and 
Sec. 404.1617 for what we consider reasonable effort.) If the services 
of qualified psychiatrists or psychologists cannot be obtained because 
of impediments at the State level, the Secretary may contract directly 
for the services. In a case where there is evidence of mental and 
nonmental impairments and a qualified psychologist serves as a 
psychological consultant, the psychologist will evaluate only the mental 
impairment, and a physician will evaluate the nonmental impairment. The 
overall determination of impairment severity in combined mental and 
nonmental impairment cases will be made by a medical consultant and not 
a psychological consultant unless the mental impairment alone would 
justify a finding of disability.

[46 FR 29204, May 29, 1981, as amended at 52 FR 33926, Sept. 9, 1987]



Sec. 404.1503a  Program integrity.

    We will not use in our program any individual or entity, except to 
provide existing medical evidence, who is currently excluded, suspended, 
or otherwise barred from participation in the Medicare or Medicaid 
programs, or any other Federal or Federally-assisted program; whose 
license to provide health care services is currently revoked or 
suspended by any State licensing authority pursuant to adequate due 
process procedures for reasons bearing on professional competence, 
professional conduct, or financial integrity; or who, until a final 
determination is made, has surrendered such a license while formal 
disciplinary proceedings involving professional conduct are pending. By 
individual or entity we mean a medical or psychological consultant, 
consultative examination provider, or diagnostic test facility. Also see 
Secs. 404.1519 and 404.1519g(b).

[56 FR 36954, Aug. 1, 1991]



Sec. 404.1504  Determinations by other organizations and agencies.

    A decision by any nongovernmental agency or any other governmental 
agency about whether you are disabled or blind is based on its rules and 
is not our decision about whether you are disabled or blind. We must 
make a disability or blindness determination based on social security 
law. Therefore, a determination made by another agency that you are 
disabled or blind is not binding on us.

                        Definition of Disability



Sec. 404.1505  Basic definition of disability.

    (a) The law defines disability as the inability to do any 
substantial gainful activity by reason of any medically determinable 
physical or mental impairmentich can be expected to result in death or 
which has lasted or can be expected to last for a continuous period of 
not less than 12 months. To meet this definition, you must have a severe 
impairment, which makes you unable to do your previous work or any other 
substantial gainful activity which exists in the national economy. To 
determine whether you are able to do any other work, we consider your 
residual functional capacity and your age, education, and work 
experience. We will use this definition of disability if you are 
applying for a period of disability, or disability insurance benefits as 
a disabled worker, or child's insurance benefits based on disability 
before age 22 or, with respect to disability benefits payable for months 
after December 1990, as a widow, widower, or surviving divorced spouse.

[[Page 338]]

    (b) There are different rules for determining disability for 
individuals who are statutorily blind. We discuss these in 
Secs. 404.1581 through 404.1587. There are also different rules for 
determining disability for widows, widowers, and surviving divorced 
spouses for monthly benefits for months prior to January 1991. We 
discuss these rules in Secs. 404.1577, 404.1578, and 404.1579.

[45 FR 55584, Aug. 20, 1980, as amended at 51 FR 10616, Mar. 28, 1986; 
57 FR 30120, July 8, 1992]



Sec. 404.1506  When we will not consider your impairment.

    (a) Permanent exclusion of felony-related impairment. In determining 
whether you are under a disability, we will not consider any physical or 
mental impairment, or any increase in severity (aggravation) of a 
preexisting impairment, which arises in connection with your commission 
of a felony after October 19, 1980, if you are subsequently convicted of 
this crime.Your subsequent conviction will invalidate any prior 
determination establishing disability if that determination was based 
upon any impairment, or aggravation, which we must exclude under this 
rule.
    (b) Limited use of impairment arising in prison. In determining 
whether you are under a disability for purposes of benefit payments, we 
will not consider any physical or mental impairment, or any increase in 
severity (aggravation) of a preexisting impairment, which arises in 
connection with your confinement in a jail, prison, or other penal 
institution or correctional facility for conviction of a felony 
committed after October 19, 1980. The exclusion of the impairment, or 
aggravation, applies in determining disability for benefits payable for 
any month during which you are confined. This rule does not preclude the 
establishment of a period of disability based upon the impairment or 
aggravation. You may become entitled to benefits upon release from 
prison provided that you apply and are under a disability at the time.
    (c) Felonious offenses. We will consider an offense a felony if--
    (1) It is a felony under applicable law; or
    (2) In a jurisdiction which does not classify any crime as a felony, 
it is an offense punishable by death or imprisonment for a term 
exceeding one year.
    (d) Confinement. In general, a jail, prison, or other penal 
institution or correctional facility is a facility which is under the 
control and jurisdiction of the agency in charge of the penal system or 
in which convicted criminals can be incarcerated. Confinement in such a 
facility continues as long as you are under a sentence of confinement 
and have not been released due to parole or pardon. You are considered 
confined even though you are temporarily or intermittently outside of 
the facility (e.g., on work release, attending school, or hospitalized).

[48 FR 5714, Feb. 8, 1983]



Sec. 404.1508  What is needed to show an impairment.

    If you are not doing substantial gainful activity, we always look 
first at your physical or mental impairment(s) to determine whether you 
are disabled or blind. Your impairment must result from anatomical, 
physiological, or psychological abnormalities which can be shown by 
medically acceptable clinical and laboratory diagnostic techniques. A 
physical or mental impairment must be established by medical evidence 
consisting of signs, symptoms, and laboratory findings, not only by your 
statement of symptoms (see Sec. 404.1527). (See Sec. 404.1528 for 
further information about what we mean by symptoms, signs, and 
laboratory findings.)

[45 FR 55584, Aug. 20, 1980, as amended at 56 FR 36954, Aug. 1, 1991]



Sec. 404.1509  How long the impairment must last.

    Unless your impairment is expected to result in death, it must have 
lasted or must be expected to last for a continuous period of at least 
12 months. We call this the duration requirement.



Sec. 404.1510  Meaning of substantial gainful activity.

    Substantial gainful activity means work that--
    (a) Involves doing significant and productive physical or mental 
duties; and

[[Page 339]]

    (b) Is done (or intended) for pay or profit.
    (See Sec. 404.1572 for further details about what we mean by 
substantial gainful activity.)



Sec. 404.1511  Definition of a disabling impairment.

    (a) Disabled workers, persons disabled since childhood and, for 
months after December 1990, disabled widows, widowers, and surviving 
divorced spouses. If you are entitled to disability cash benefits as a 
disabled worker, or to child's insurance benefits, or, for monthly 
benefits payable after December 1990, to widow's, widower's, or 
surviving divorced spouse's monthly benefits, a disabling impairment is 
an impairment (or combination of impairments) which, of itself, is so 
severe that it meets or equals a set of criteria in the Listing of 
Impairments in appendix 1 of this subpart or which, when considered with 
your age, education, and work experience, would result in a finding that 
you are disabled under Sec. 404.1594. In determining whether you have a 
disabling impairment, earnings are not considered.
    (b) Disabled widows, widowers, and surviving divorced spouses, for 
monthly benefits for months prior to January 1991. If you have been 
entitled to disability benefits as a disabled widow, widower, or 
surviving divorced spouse and we must decide whether you had a disabling 
impairment for any time prior to January 1991, a disabling impairment is 
an impairment (or combination of impairments) which, of itself, was so 
severe that it met or equaled a set of criteria in the Listing of 
Impairments in appendix 1 of this subpart, or results in a finding that 
you were disabled under Sec. 404.1579. In determining whether you had a 
disabling impairment, earnings are not considered.

[57 FR 30120, July 8, 1992]

                                Evidence



Sec. 404.1512  Evidence of your impairment.

    (a) General. In general, you have to prove to us that you are blind 
or disabled. Therefore, you must bring to our attention everything that 
shows that you are blind or disabled. This means that you must furnish 
medical and other evidence that we can use to reach conclusions about 
your medical impairment(s) and, if material to the determination of 
whether you are blind or disabled, its effect on your ability to work on 
a sustained basis. We will consider only impairment(s) you say you have 
or about which we receive evidence.
    (b) What we mean by ``evidence.'' Evidence is anything you or anyone 
else submits to us or that we obtain that relates to your claim. This 
includes, but is not limited to:
    (1) Objective medical evidence, that is, medical signs and 
laboratory findings as defined in Sec. 404.1528 (b) and (c);
    (2) Other evidence from medical sources, such as medical history, 
opinions, and statements about treatment you have received;
    (3) Statements you or others make about your impairment(s), your 
restrictions, your daily activities, your efforts to work, or any other 
relevant statements you make to medical sources during the course of 
examination or treatment, or to us during interviews, on applications, 
in letters, and in testimony in our administrative proceedings;
    (4) Information from other sources, as described in 
Sec. 404.1513(e);
    (5) Decisions by any governmental or nongovernmental agency about 
whether you are disabled or blind; and
    (6) At the administrative law judge and Appeals Council levels, 
certain findings, other than the ultimate determination about whether 
you are disabled, made by State agency medical or psychological 
consultants and other program physicians or psychologists, and opinions 
expressed by medical advisors based on their review of the evidence in 
your case record. See Sec. 404.1527(f) (2) and (3).
    (c) Your responsibility. You must provide medical evidence showing 
that you have an impairment(s) and how severe it is during the time you 
say that you are disabled. If we ask you, you must also provide evidence 
about:
    (1) Your age;
    (2) Your education and training;
    (3) Your work experience;

[[Page 340]]

    (4) Your daily activities both before and after the date you say 
that you became disabled;
    (5) Your efforts to work; and
    (6) Any other factors showing how your impairment(s) affects your 
ability to work. In Secs. 404.1560 through 404.1569, we discuss in more 
detail the evidence we need when we consider vocational factors.
    (d) Our responsibility. Before we make a determination that you are 
not disabled, we will develop your complete medical history for at least 
the 12 months preceding the month in which you file your application 
unless there is a reason to believe that development of an earlier 
period is necessary or unless you say that your disability began less 
than 12 months before you filed your application. We will make every 
reasonable effort to help you get medical reports from your own medical 
sources when you give us permission to request the reports.
    (1) ``Every reasonable effort'' means that we will make an initial 
request for evidence from your medical source and, at any time between 
10 and 20 calendar days after the initial request, if the evidence has 
not been received, we will make one followup request to obtain the 
medical evidence necessary to make a determination. The medical source 
will have a minimum of 10 calendar days from the date of our followup 
request to reply, unless our experience with that source indicates that 
a longer period is advisable in a particular case.
    (2) By ``complete medical history,'' we mean the records of your 
medical source(s) covering at least the 12 months preceding the month in 
which you file your application. If you say that your disability began 
less than 12 months before you filed your application, we will develop 
your complete medical history beginning with the month you say your 
disability began unless we have reason to believe your disability began 
earlier. If applicable, we will develop your complete medical history 
for the 12-month period prior to (1) the month you were last insured for 
disability insurance benefits (see Sec. 404.130), (2) the month ending 
the 7-year period you may have to establish your disability and you are 
applying for widow's or widower's benefits based on disability (see 
Sec. 404.335(c)(1)), or (3) the month you attain age 22 and you are 
applying for child's benefits based on disability (see Sec. 404.350(e)).
    (e) Recontacting medical sources. When the evidence we receive from 
your treating physician or psychologist or other medical source is 
inadequate for us to determine whether you are disabled, we will need 
additional information to reach a determination or a decision. To obtain 
the information, we will take the following actions.
    (1) We will first recontact your treating physician or psychologist 
or other medical source to determine whether the additional information 
we need is readily available. We will seek additional evidence or 
clarification from your medical source when the report from your medical 
source contains a conflict or ambiguity that must be resolved, the 
report does not contain all the necessary information, or does not 
appear to be based on medically acceptable clinical and laboratory 
diagnostic techniques. We may do this by requesting copies of your 
medical source's records, a new report, or a more detailed report from 
your medical source, including your treating source, or by telephoning 
your medical source. In every instance where medical evidence is 
obtained over the telephone, the telephone report will be sent to the 
source for review, signature and return.
    (2) We may not seek additional evidence or clarification from a 
medical source when we know from past experience that the source either 
cannot or will not provide the necessary findings.
    (f) Need for consultative examination. If the information we need is 
not readily available from the records of your medical treatment source, 
or we are unable to seek clarification from your medical source, we will 
ask you to attend one or more consultative examinations at our expense. 
See Secs. 404.1517 through 404.1519t for the rules governing the 
consultative examination process. Generally, we will not request a 
consultative examination until we have made every reasonable effort to 
obtain evidence from your own medical sources. However, in some 
instances, such as when a source is known to be unable to

[[Page 341]]

provide certain tests or procedures or is known to be nonproductive or 
uncooperative, we may order a consultative examination while awaiting 
receipt of medical source evidence. We will not evaluate this evidence 
until we have made every reasonable effort to obtain evidence from your 
medical sources.

[56 FR 36954, Aug. 1, 1991]



Sec. 404.1513  Medical evidence of your impairment.

    (a) Acceptable sources. We need reports about your impairments from 
acceptable medical sources. Acceptable medical sources are--
    (1) Licensed physicians;
    (2) Licensed osteopaths;
    (3) Licensed or certified psychologists;
    (4) Licensed optometrists for the measurement of visual acuity and 
visual fields (we may need a report from a physician to determine other 
aspects of eye diseases); and
    (5) Persons authorized to send us a copy or summary of the medical 
records of a hospital, clinic, sanitorium, medical institution, or 
health care facility. Generally, the copy or summary should be certified 
as accurate by the custodian or by any authorized employee of the Social 
Security Administration, Veterans' Administration, or State agency. 
However, we will not return an uncertified copy or summary for 
certification unless there is some question about the document.
    (b) Medical reports. Medical reports should include--
    (1) Medical history;
    (2) Clinical findings (such as the results of physical or mental 
status examinations);
    (3) Laboratory findings (such as blood pressure, x-rays);
    (4) Diagnosis (statement of disease or injury based on its signs and 
symptoms);
    (5) Treatment prescribed with response, and prognosis; and
    (6) A statement about what you can still do despite your 
impairment(s) based on the medical source's findings on the factors 
under paragraphs (b)(1) through (b)(5) of this section (except in 
statutory blindness claims). Although we will request a medical source 
statement about what you can still do despite your impairment(s), the 
lack of the medical source statement will not make the report 
incomplete. See Sec. 404.1527.
    (c) Statements about what you can still do. Statements about what 
you can still do (based on the medical source's findings on the factors 
under paragraphs (b)(1) through (b)(5) of this section) should describe, 
but are not limited to, the kinds of physical and mental capabilities 
listed below. See Secs. 404.1527 and 404.1545(c).
    (1) The medical source's opinion about your ability, despite your 
impairment(s), to do work-related activities such as sitting, standing, 
walking, lifting, carrying, handling objects, hearing, speaking, and 
traveling; and
    (2) In cases of mental impairment(s), the medical source's opinion 
about your ability to understand, to carry out and remember 
instructions, and to respond appropriately to supervision, coworkers, 
and work pressures in a work setting.
    (d) Completeness. The medical evidence, including the clinical and 
laboratory findings, must be complete and detailed enough to allow us to 
make a determination about whether you are disabled or blind. It must 
allow us to determine--
    (1) The nature and limiting effects of your impairment(s) for any 
period in question;
    (2) The probable duration of your impairment; and
    (3) Your residual functional capacity to do work-related physical 
and mental activities.
    (e) Information from other sources. Information from other sources 
may also help us to understand how your impairment affects your ability 
to work. Other sources include--
    (1) Public and private social welfare agencies;
    (2) Observations by non-medical sources; and
    (3) Other practitioners (for example, naturopaths, chiropractors, 
audiologists, etc.).

[45 FR 55584, Aug. 20, 1980, as amended at 56 FR 36955, Aug. 1, 1991]

[[Page 342]]



Sec. 404.1514  When we will purchase existing evidence.

    We need specific medical evidence to determine whether you are 
disabled or blind. You are responsible for providing that evidence. 
However, we will pay physicians not employed by the Federal government 
and other non-Federal providers of medical services for the reasonable 
cost of providing us with existing medical evidence that we need and ask 
for after November 30, 1980.

[46 FR 45757, Sept. 15, 1981]



Sec. 404.1515  Where and how to submit evidence.

    You may give us evidence about your impairment at any of our offices 
or at the office of any State agency authorized to make disability 
determinations. You may also give evidence to one of our employees 
authorized to accept evidence at another place. For more information 
about this, see subpart H of this part.



Sec. 404.1516  If you fail to submit medical and other evidence.

    If you do not give us the medical and other evidence that we need 
and request, we will have to make a decision based on information 
available in your case. We will not excuse you from giving us evidence 
because you have religious or personal reasons against medical 
examinations, tests, or treatment.



Sec. 404.1517  Consultative examination at our expense.

    If your medical sources cannot or will not give us sufficient 
medical evidence about your impairment for us to determine whether you 
are disabled or blind, we may ask you to have one or more physical or 
mental examinations or tests. We will pay for these examinations. 
However, we will not pay for any medical examination arranged by you or 
your representative without our advance approval. If we arrange for the 
examination or test, we will give you reasonable notice of the date, 
time, and place the examination or test will be given, and the name of 
the person or facility who will do it. We will also give the examiner 
any necessary background information about your condition.

[56 FR 36956, Aug. 1, 1991]



Sec. 404.1518  If you do not appear at a consultative examination.

    (a) General. If you are applying for benefits and do not have a good 
reason for failing or refusing to take part in a consultative 
examination or test which we arrange for you to get information we need 
to determine your disability or blindness, we may find that you are not 
disabled or blind. If you are already receiving benefits and do not have 
a good reason for failing or refusing to take part in a consultative 
examination or test which we arranged for you, we may determine that 
your disability or blindness has stopped because of your failure or 
refusal. Therefore, if you have any reason why you cannot go for the 
scheduled appointment, you should tell us about this as soon as possible 
before the examination date. If you have a good reason, we will schedule 
another examination. We will consider your physical, mental, 
educational, and linguistic limitations (including any lack of facility 
with the English language) when determining if you have a good reason 
for failing to attend a consultative examination.
    (b) Examples of good reasons for failure to appear. Some examples of 
what we consider good reasons for not going to a scheduled examination 
include--
    (1) Illness on the date of the scheduled examination or test;
    (2) Not receiving timely notice of the scheduled examination or 
test, or receiving no notice at all;
    (3) Being furnished incorrect or incomplete information, or being 
given incorrect information about the physician involved or the time or 
place of the examination or test, or;
    (4) Having had death or serious illness occur in your immediate 
family.
    (c) Objections by your physician. If any of your treating physicians 
tell you that you should not take the examination or test, you should 
tell us at once. In many cases, we may be able to get the information we 
need in another

[[Page 343]]

way. Your physician may agree to another type of examination for the 
same purpose.

[45 FR 55584, Aug. 20, 1980, as amended at 59 FR 1635, Jan. 12, 1994]

Standards To Be Used in Determining When a Consultative Examination Will 
        Be Obtained in Connection With Disability Determinations



Sec. 404.1519  The consultative examination.

    A consultative examination is a physical or mental examination or 
test purchased for you at our request and expense from a treating 
physician or psychologist, another source of record, or an independent 
source, including a pediatrician when appropriate. The decision to 
purchase a consultative examination will be made on an individual case 
basis in accordance with the provisions of Secs. 404.1519a through 
404.1519f. Selection of the source for the examination will be 
consistent with the provisions of Sec. 404.1503a and Secs. 404.1519g 
through 404.1519j. The rules and procedures for requesting consultative 
examinations set forth in Secs. 404.1519a and 404.1519b are applicable 
at the reconsideration and hearing levels of review, as well as the 
initial level of determination.

[56 FR 36956, Aug. 1, 1991]



Sec. 404.1519a  When we will purchase a consultative examination and how we will use it.

    (a)(1) General. The decision to purchase a consultative examination 
for you will be made after we have given full consideration to whether 
the additional information needed (e.g., clinical findings, laboratory 
tests, diagnosis, and prognosis) is readily available from the records 
of your medical sources. See Sec. 404.1512 for the procedures we will 
follow to obtain evidence from your medical sources. Before purchasing a 
consultative examination, we will consider not only existing medical 
reports, but also the disability interview form containing your 
allegations as well as other pertinent evidence in your file.
    (2) When we purchase a consultative examination, we will use the 
report from the consultative examination to try to resolve a conflict or 
ambiguity if one exists. We will also use a consultative examination to 
secure needed medical evidence the file does not contain such as 
clinical findings, laboratory tests, a diagnosis or prognosis necessary 
for decision.
    (b) Situations requiring a consultative examination. A consultative 
examination may be purchased when the evidence as a whole, both medical 
and nonmedical, is not sufficient to support a decision on your claim. 
Other situations, including but not limited to the situations listed 
below, will normally require a consultative examination:
    (1) The additional evidence needed is not contained in the records 
of your medical sources;
    (2) The evidence that may have been available from your treating or 
other medical sources cannot be obtained for reasons beyond your 
control, such as death or noncooperation of a medical source;
    (3) Highly technical or specialized medical evidence that we need is 
not available from your treating or other medical sources;
    (4) A conflict, inconsistency, ambiguity or insufficiency in the 
evidence must be resolved, and we are unable to do so by recontacting 
your medical source; or
    (5) There is an indication of a change in your condition that is 
likely to affect your ability to work, but the current severity of your 
impairment is not established.

[56 FR 36956, Aug. 1, 1991]



Sec. 404.1519b  When we will not purchase a consultative examination.

    We will not purchase a consultative examination in situations 
including, but not limited to, the following situations:
    (a) In period of disability and disability insurance benefit claims, 
when you do not meet the insured status requirement in the calendar 
quarter you allege you became disabled or later and there is no 
possibility of establishing an earlier onset;
    (b) In claims for widow's or widower's benefits based on disability, 
when your alleged month of disability is after the end of the 7-year 
period specified in

[[Page 344]]

Sec. 404.335(c)(1) and there is no possibility of establishing an 
earlier onset date, or when the 7-year period expired in the past and 
there is no possibility of establishing an onset date prior to the date 
the 7-year period expired;
    (c) In disability insurance benefit claims, when your insured status 
expired in the past and there is no possibility of establishing an onset 
date prior to the date your insured status expired;
    (d) When any issues about your actual performance of substantial 
gainful activity or gainful activity have not been resolved;
    (e) In claims for child's benefits based on disability, when it is 
determined that your alleged disability did not begin before the month 
you attained age 22, and there is no possibility of establishing an 
onset date earlier than the month in which you attained age 22;
    (f) In claims for child's benefits based on disability that are 
filed concurrently with the insured individual's claim and entitlement 
cannot be established for the insured individual;
    (g) In claims for child's benefits based on disability where 
entitlement is precluded based on other nondisability factors.

[56 FR 36956, Aug. 1, 1991]

        Standards for the Type of Referral and for Report Content



Sec. 404.1519f  Type of purchased examinations.

    We will purchase only the specific examinations and tests we need to 
make a determination in your claim. For example, we will not authorize a 
comprehensive medical examination when the only evidence we need is a 
special test, such as an X-ray, blood studies, or an electrocardiogram.

[56 FR 36956, Aug. 1, 1991]



Sec. 404.1519g  Who we will select to perform a consultative examination.

    (a) We will purchase a consultative examination only from a 
qualified medical source. The medical source may be your own physician 
or psychologist, or another source. If you are a child, the medical 
source we choose may be a pediatrician. For a more complete list of 
medical sources, see Sec. 404.1513(a).
    (b) By ``qualified,'' we mean that the medical source must be 
currently licensed in the State and have the training and experience to 
perform the type of examination or test we will request; the medical 
source must not be barred from participation in our programs under the 
provisions of Sec. 404.1503a. The medical source must also have the 
equipment required to provide an adequate assessment and record of the 
existence and level of severity of your alleged impairments.
    (c) The physician or psychologist we choose may use support staff to 
help perform the consultative examination. Any such support staff (e.g., 
X-ray technician, nurse) must meet appropriate licensing or 
certification requirements of the State. See Sec. 404.1503a.

[56 FR 36957, Aug. 1, 1991]



Sec. 404.1519h  Your treating physician or psychologist.

    When in our judgment your treating physician or psychologist is 
qualified, equipped, and willing to perform the additional examination 
or tests for the fee schedule payment, and generally furnishes complete 
and timely reports, your treating physician or psychologist will be the 
preferred source to do the purchased examination. Even if only a 
supplemental test is required, your treating physician or psychologist 
is ordinarily the preferred source.

[56 FR 36957, Aug. 1, 1991]



Sec. 404.1519i  Other sources for consultative examinations.

    We will use a source other than your treating physician or 
psychologist for a purchased examination or test in situations 
including, but not limited to, the following situations:
    (a) Your treating physician or psychologist prefers not to perform 
such an examination or does not have the equipment to provide the 
specific data needed;
    (b) There are conflicts or inconsistencies in your file that cannot 
be resolved by going back to your treating physician or psychologist;
    (c) You prefer a source other than your treating physician or 
psychologist

[[Page 345]]

and have a good reason for your preference;
    (d) We know from prior experience that your treating physician or 
psychologist may not be a productive source, e.g., he or she has 
consistently failed to provide complete or timely reports.

[56 FR 36957, Aug. 1, 1991]



Sec. 404.1519j  Objections to the designated physician or psychologist.

    You or your representative may object to your being examined by a 
designated physician or psychologist. If there is a good reason for the 
objection, we will schedule the examination with another physician or 
psychologist. A good reason may be that the consultative examination 
physician or psychologist had previously represented an interest adverse 
to you. For example, the physician or psychologist may have represented 
your employer in a workers' compensation case or may have been involved 
in an insurance claim or legal action adverse to you. Other things we 
will consider include: the presence of a language barrier, the 
physician's or psychologist's office location (e.g., 2nd floor, no 
elevator), travel restrictions, and whether the physician or 
psychologist had examined you in connection with a previous disability 
determination or decision that was unfavorable to you. If your objection 
is because a physician or psychologist allegedly ``lacks objectivity'' 
in general, but not in relation to you personally, we will review the 
allegations. See Sec. 404.1519s. To avoid a delay in processing your 
claim, the consultative examination in your case will be changed to 
another physician or psychologist while a review is being conducted. We 
will handle any objection to use of the substitute physician or 
psychologist in the same manner. However, if we had previously conducted 
such a review and found that the reports of the consultative physician 
or psychologist in question conformed to our guidelines, we will not 
change your examination.

[56 FR 36957, Aug. 1, 1991]



Sec. 404.1519k  Purchase of medical examinations, laboratory tests, and other services.

    We may purchase medical examinations, including psychiatric and 
psychological examinations, X-rays and laboratory tests (including 
specialized tests such as pulmonary function studies, 
electrocardiograms, stress tests, etc.) from a licensed physician or 
psychologist, hospital or clinic.
    (a) The rate of payment to be used for purchasing medical or other 
services necessary to make determinations of disability may not exceed 
the highest rate paid by Federal or public agencies in the State for the 
same or similar types of service. See Secs. 404.1624 and 404.1626.
    (b) If a physician's bill or a request for payment for a physician's 
services includes a charge for a laboratory test for which payment may 
be made under this part, the amount payable with respect to the test 
shall be determined as follows:
    (1) If the bill or request for payment indicates that the test was 
personally performed or supervised by the physician who submitted the 
bill (or for whose services the request for payment was made) or by 
another physician with whom that physician shares his or her practice, 
the payment will be based on the physician's usual and customary charge 
for the test or the rates of payment which the State uses for purchasing 
such services, whichever is the lesser amount.
    (2) If the bill or request for payment indicates that the test was 
performed by an independent laboratory, the amount of reimbursement will 
not exceed the billed cost of the independent laboratory or the rate of 
payment which the State uses for purchasing such services, whichever is 
the lesser amount. A nominal payment may be made to the physician for 
collecting, handling and shipping a specimen to the laboratory if the 
physician bills for such a service. The total reimbursement may not 
exceed the rate of payment which the State uses for purchasing such 
services.
    (c) The State will assure that it can support the rate of payment it 
uses. The State shall also be responsible for monitoring and overseeing 
the rate of

[[Page 346]]

payment it uses to ensure compliance with paragraphs (a) and (b) of this 
section.

[56 FR 36957, Aug. 1, 1991]



Sec. 404.1519m  Diagnostic tests or procedures.

    We will request the results of any diagnostic tests or procedures 
that have been performed as part of a workup by your treating physician 
or psychologist or other medical source and will use the results to help 
us evaluate impairment severity or prognosis. However, we will not order 
diagnostic tests or procedures that involve significant risk to you, 
such as myelograms, arteriograms, or cardiac catheterizations for the 
evaluation of disability under the Social Security program. Also, a 
State agency medical consultant must approve the ordering of any 
diagnostic test or procedure when there is a chance it may involve 
significant risk. The responsibility for deciding whether to perform the 
examination rests with the consultative examining physician or 
psychologist.

[56 FR 36957, Aug. 1, 1991]



Sec. 404.1519n  Informing the examining physician or psychologist of examination scheduling, report content, and signature requirements.

    The physicians or psychologists who perform consultative 
examinations will have a good understanding of our disability programs 
and their evidentiary requirements. They will be made fully aware of 
their responsibilities and obligations regarding confidentiality as 
described in Sec. 401.105(e). We will fully inform consulting physicians 
or psychologists at the time we first contact them, and at subsequent 
appropriate intervals, of the following obligations:
    (a) In scheduling full consultative examinations, sufficient time 
should be allowed to permit the examining physician or psychologist to 
take a case history and perform the examination, including any needed 
tests. The following minimum scheduling intervals (i.e., time set aside 
for the individual, not the actual duration of the consultative 
examination) should be used.
    (1) Comprehensive general medical examination--at least 30 minutes;
    (2) Comprehensive musculoskeletal or neurological examination--at 
least 20 minutes;
    (3) Comprehensive psychiatric examination--at least 40 minutes;
    (4) Psychological examination--at least 60 minutes (Additional time 
may be required depending on types of psychological tests administered); 
and
    (5) All others--at least 30 minutes, or in accordance with accepted 
medical practices.


We recognize that actual practice will dictate that some examinations 
may require longer scheduling intervals depending on the circumstances 
in a particular situation. We also recognize that these minimum 
intervals may have to be adjusted to allow for those claimants who do 
not attend their scheduled examination. The purpose of these minimum 
scheduling timeframes is to ensure that such examinations are complete 
and that sufficient time is made available to obtain the information 
needed to make an accurate determination in your case. State agencies 
will monitor the scheduling of examinations (through their normal 
consultative examination oversight activities) to ensure that any 
overscheduling is avoided, as overscheduling may lead to examinations 
that are not thorough.
    (b) Report content. The reported results of your medical history, 
examination, requested laboratory findings, discussions and conclusions 
must conform to accepted professional standards and practices in the 
medical field for a complete and competent examination. The facts in a 
particular case and the information and findings already reported in the 
medical and other evidence of record will dictate the extent of detail 
needed in the consultative examination report for that case. Thus, the 
detail and format for reporting the results of a purchased examination 
will vary depending upon the type of examination or testing requested. 
The reporting of information will differ from one type of examination to 
another when the requested examination relates to the performance of 
tests such as ventilatory function tests, treadmill exercise tests, or 
audiological tests. The medical report must be complete

[[Page 347]]

enough to help us determine the nature, severity, and duration of the 
impairment, and residual functional capacity. The report should reflect 
your statements of your symptoms, not simply the physician's or 
psychologist's statements or conclusions. The examining physician's or 
psychologist's report of the consultative examination should include the 
objective medical facts as well as observations and opinions.
    (c) Elements of a complete consultative examination. A complete 
consultative examination is one which involves all the elements of a 
standard examination in the applicable medical specialty. When the 
report of a complete consultative examination is involved, the report 
should include the following elements:
    (1) Your major or chief complaint(s);
    (2) A detailed description, within the area of specialty of the 
examination, of the history of your major complaint(s);
    (3) A description, and disposition, of pertinent ``positive'' and 
``negative'' detailed findings based on the history, examination and 
laboratory tests related to the major complaint(s), and any other 
abnormalities or lack thereof reported or found during examination or 
laboratory testing;
    (4) The results of laboratory and other tests (e.g., X-rays) 
performed according to the requirements stated in the Listing of 
Impairments (see appendix 1 of this subpart P);
    (5) The diagnosis and prognosis for your impairment(s);
    (6) A statement about what you can still do despite your 
impairment(s), unless the claim is based on statutory blindness. This 
statement should describe the opinion of the consultative physician or 
psychologist about your ability, despite your impairment(s), to do work-
related activities such as sitting, standing, walking, lifting, 
carrying, handling objects, hearing, speaking, and traveling; and, in 
cases of mental impairment(s), the opinion of the consultative physician 
or psychologist about your ability to understand, to carry out and 
remember instructions, and to respond appropriately to supervision, 
coworkers and work pressures in a work setting; and
    (7) In addition, the consultative physician or psychologist will 
consider, and provide some explanation or comment on, your major 
complaint(s) and any other abnormalities found during the history and 
examination or reported from the laboratory tests. The history, 
examination, evaluation of laboratory test results, and the conclusions 
will represent the information provided by the physician or psychologist 
who signs the report.
    (d) When a complete consultative examination is not required. When 
the evidence we need does not require a complete consultative 
examination (for example, we need only a specific laboratory test result 
to complete the record), we may not require a report containing all of 
the elements in paragraph (c).
    (e) Signature requirements. All consultative examination reports 
will be personally reviewed and signed by the physician or psychologist 
who actually performed the examination. This attests to the fact that 
the physician or psychologist doing the examination or testing is solely 
responsible for the report contents and for the conclusions, 
explanations or comments provided with respect to the history, 
examination and evaluation of laboratory test results. The signature of 
the examining physician or psychologist on a report annotated ``not 
proofed'' or ``dictated but not read'' is not acceptable. A rubber stamp 
signature of a physician or psychologist or the physician's or 
psychologist's signature entered by any other person is not acceptable.

[56 FR 36958, Aug. 1, 1991]



Sec. 404.1519o  When a properly signed consultative examination report has not been received.

    If a consultative examination report is received unsigned or 
improperly signed we will take the following action.
    (a) When we will make determinations and decisions without a 
properly signed report. We will make a determination or decision in the 
circumstances specified in paragraphs (a)(1) and (a)(2) of this section 
without waiting for a properly signed consultative examination report. 
After we have made the determination or decision, we will obtain a

[[Page 348]]

properly signed report and include it in the file unless the physician 
or psychologist who performed the original consultative examination has 
died.
    (1) Continuous period of disability allowance with an onset date as 
alleged or earlier than alleged; or
    (2) Continuance of disability.
    (b) When we will not make determinations and decisions without a 
properly signed report. We will not use an unsigned or improperly signed 
consultative examination report to make the determinations or decisions 
specified in paragraphs (b)(1), (b)(2), (b)(3), and (b)(4) of this 
section. When we need a properly signed consultative examination report 
to make these determinations or decisions, we must obtain such a report. 
If the signature of the physician or psychologist who performed the 
original examination cannot be obtained because the physician or 
psychologist is out of the country for an extended period of time, on an 
extended vacation, seriously ill, deceased, or for any other reason, the 
consultative examination will be rescheduled with another physician or 
psychologist.
    (1) Denial; or
    (2) Cessation; or
    (3) Allowance of a period of disability which has ended; or
    (4) Allowance with an onset date later than alleged.

[56 FR 36958, Aug. 1, 1991]



Sec. 404.1519p  Reviewing reports of consultative examinations.

    (a) We will review the report of the consultative examination to 
determine whether the specific information requested has been furnished. 
We will consider the following factors in reviewing the report:
    (1) Whether the report provides evidence which serves as an adequate 
basis for decisionmaking in terms of the impairment it assesses;
    (2) Whether the report is internally consistent; Whether all the 
diseases, impairments and complaints described in the history are 
adequately assessed and reported in the clinical findings; Whether the 
conclusions correlate the findings from your medical history, clinical 
examination and laboratory tests and explain all abnormalities;
    (3) Whether the report is consistent with the other information 
available to us within the specialty of the examination requested; 
Whether the report fails to mention an important or relevant complaint 
within that specialty that is noted in other evidence in the file (e.g., 
your blindness in one eye, amputations, pain, alcoholism, depression);
    (4) Whether this is an adequate report of examination as compared to 
standards set out in the course of a medical education; and
    (5) Whether the report is properly signed.
    (b) If the report is inadequate or incomplete, we will contact the 
examining consultative physician or psychologist, give an explanation of 
our evidentiary needs, and ask that the physician or psychologist 
furnish the missing information or prepare a revised report.
    (c) With your permission, or where the examination discloses new 
diagnostic information or test results that reveal potentially life-
threatening situations, we will refer the consultative examination 
report to your treating physician or psychologist. When we refer the 
consultative examination report to your treating physician or 
psychologist without your permission, we will notify you that we have 
done so.
    (d) We will perform ongoing special management studies on the 
quality of consultative examinations purchased from major medical 
sources and the appropriateness of the examinations authorized.
    (e) We will take steps to ensure that consultative examinations are 
scheduled only with medical sources who have access to the equipment 
required to provide an adequate assessment and record of the existence 
and level of severity of your alleged impairments.

[56 FR 36959, Aug. 1, 1991]



Sec. 404.1519q  Conflict of interest.

    All implications of possible conflict of interest between medical or 
psychological consultants and their medical or psychological practices 
will be avoided. Such consultants are not only those physicians and 
psychologists who work for us directly but are also those who do review 
and adjudication work

[[Page 349]]

in the State agencies. Physicians and psychologists who work for us 
directly as employees or under contract will not work concurrently for a 
State agency. Physicians and psychologists who do review work for us 
will not perform consultative examinations for us without our prior 
approval. In such situations, the physician or psychologist will 
disassociate himself or herself from further involvement in the case and 
will not participate in the evaluation, decision, or appeal actions. In 
addition, neither they, nor any member of their families, will acquire 
or maintain, either directly or indirectly, any financial interest in a 
medical partnership, corporation, or similar relationship in which 
consultative examinations are provided. Sometimes physicians and 
psychologists who do review work for us will have prior knowledge of a 
case; for example, when the claimant was a patient. Where this is so, 
the physician or psychologist will not participate in the review or 
determination of the case. This does not preclude the physician or 
psychologist from submitting medical evidence based on treatment or 
examination of the claimant.

[56 FR 36959, Aug. 1, 1991]

             Authorizing and Monitoring the Referral Process



Sec. 404.1519s  Authorizing and monitoring the consultative examination.

    (a) Day-to-day responsibility for the consultative examination 
process rests with the State agencies that make disability 
determinations for us.
    (b) The State agency will maintain a good working relationship with 
the medical community in order to recruit sufficient numbers of 
physicians and other providers of medical services to ensure ready 
availability of consultative examination providers.
    (c) Consistent with Federal and State laws, the State agency 
administrator will work to achieve appropriate rates of payment for 
purchased medical services.
    (d) Each State agency will be responsible for comprehensive 
oversight management of its consultative examination program, with 
special emphasis on key providers.
    (e) A key consultative examination provider is a provider that meets 
at least one of the following conditions:
    (1) Any consultative examination provider with an estimated annual 
billing to the Social Security disability programs of at least $100,000; 
or
    (2) Any consultative examination provider with a practice of 
medicine, osteopathy, or psychology directed primarily towards 
evaluation examinations rather than the treatment of patients; or
    (3) Any consultative examination provider that does not meet the 
above criteria, but is one of the top five consultative examination 
providers in the State by dollar volume, as evidenced by prior year 
data.
    (f) State agencies have flexibility in managing their consultative 
examination programs, but at a minimum will provide:
    (1) An ongoing active recruitment program for consultative 
examination providers;
    (2) A process for orientation, training, and review of new 
consultative examination providers, with respect to SSA's program 
requirements involving consultative examination report content and not 
with respect to medical techniques;
    (3) Procedures for control of scheduling consultative examinations;
    (4) Procedures to ensure that close attention is given to specific 
evaluation issues involved in each case;
    (5) Procedures to ensure that only required examinations and tests 
are authorized in accordance with the standards set forth in this 
subpart;
    (6) Procedures for providing medical or supervisory approval for the 
authorization or purchase of consultative examinations and for 
additional tests or studies requested by consulting physicians and 
psychologists. This includes physician approval for the ordering of any 
diagnostic test or procedure where the question of significant risk to 
the claimant/beneficiary might be raised. See Sec. 404.1519m.
    (7) Procedures for the ongoing review of consultative examination 
results to ensure compliance with written guidelines;

[[Page 350]]

    (8) Procedures to encourage active participation by physicians in 
the consultative examination oversight program;
    (9) Procedures for handling complaints;
    (10) Procedures for evaluating claimant reactions to key providers; 
and
    (11) A program of systematic, onsite reviews of key providers that 
will include annual onsite reviews of such providers when claimants are 
present for examinations. This provision does not contemplate that such 
reviews will involve participation in the actual examinations but, 
rather, offer an opportunity to talk with claimants at the provider's 
site before and after the examination and to review the provider's 
overall operation.
    (g) The State agencies will cooperate with us when we conduct 
monitoring activities in connection with their oversight management of 
their consultative examination programs.

[56 FR 36959, Aug. 1, 1991]

           Procedures To Monitor the Consultative Examination



Sec. 404.1519t  Consultative examination oversight.

    (a) We will ensure that referrals for consultative examinations and 
purchases of consultative examinations are made in accordance with our 
policies. We will also monitor both the referral processes and the 
product of the consultative examinations obtained. This monitoring may 
include reviews by independent medical specialists under direct contract 
with SSA.
    (b) Through our regional offices, we will undertake periodic 
comprehensive reviews of each State agency to evaluate each State's 
management of the consultative examination process. The review will 
involve visits to key providers, with State staff participating, 
including a program physician when the visit will deal with medical 
techniques or judgment, or factors that go to the core of medical 
professionalism.
    (c) We will also perform ongoing special management studies of the 
quality of consultative examinations purchased from key providers and 
other sources and the appropriateness of the examinations authorized.

[56 FR 36960, Aug. 1, 1991]

                        Evaluation of Disability



Sec. 404.1520  Evaluation of disability in general.

    (a) Steps in evaluating disability. We consider all evidence in your 
case record when we make a determination or decision whether you are 
disabled. When you file a claim for a period of disability and/or 
disability insurance benefits or for child's benefits based on 
disability, we use the following evaluation process. If you are doing 
substantial gainful activity, we will determine that you are not 
disabled. If you are not doing substantial gainful activity, we will 
first consider the effect of your physical or mental impairment; if you 
have more than one impairment, we will also consider the combined effect 
of your impairments. Your impairment(s) must be severe and meet the 
duration requirement before we can find you to be disabled. We follow a 
set order to determine whether you are disabled. We review any current 
work activity, the severity of your impairment(s), your residual 
functional capacity, your past work, and your age, education, and work 
experience. If we can find that you are disabled or not disabled at any 
point in the review, we do not review your claim further. Once you have 
been found entitled to disability benefits, we follow a somewhat 
different order of evaluation to determine whether your entitlement 
continues, as explained in Sec. 404.1594(f)(6).
    (b) If you are working. If you are working and the work you are 
doing is substantial gainful activity, we will find that you are not 
disabled regardless of your medical condition or your age, education, 
and work experience.
    (c) You must have a severe impairment. If you do not have any 
impairment or combination of impairments which significantly limits your 
physical or mental ability to do basic work activities, we will find 
that you do not have a severe impairment and are, therefore, not 
disabled. We will not consider your age, education, and work experience. 
However, it is possible for you to have a period of disability for a 
time in the

[[Page 351]]

past even though you do not now have a severe impairment.
    (d) When your impairment(s) meets or equals a listed impairment in 
appendix 1. If you have an impairment(s) which meets the duration 
requirement and is listed in appendix 1 or is equal to a listed 
impairment(s), we will find you disabled without considering your age, 
education, and work experience.
    (e) Your impairments(s) must prevent you from doing past relevant 
work. If we cannot make a decision based on your current work activity 
or on medical facts alone, and you have a severe impairment(s), we then 
review your residual functional capacity and the physical and mental 
demands of the work you have done in the past. If you can still do this 
kind of work, we will find that you are not disabled.
    (f) Your impairment(s) must prevent you from doing any other work. 
(1) If you cannot do any work you have done in the past because you have 
a severe impairment(s), we will consider your residual functional 
capacity and your age, education, and past work experience to see if you 
can do other work. If you cannot, we will find you disabled.
    (2) If you have only a marginal education, and long work experience 
(i.e., 35 years or more) where you only did arduous unskilled physical 
labor, and you can no longer do this kind of work, we use a different 
rule (see Sec. 404.1562).

[50 FR 8727, Mar. 5, 1985; 50 FR 19164, May 7, 1985, as amended at 56 FR 
36960, Aug. 1, 1991]



Sec. 404.1520a  Evaluation of mental impairments.

    (a) General. The steps outlined in Sec. 404.1520 apply to the 
evaluation of physical and mental impairments. In addition, in 
evaluating the severity of mental impairments for adults (persons age 18 
and over) and in persons under age 18 when Part A of the Listing of 
Impairments is used, a special procedure must be followed by us at each 
level of adminstrative review. Following this procedure will assist us 
in:
    (1) Identifying additional evidence necessary for the determination 
of impairment severity;
    (2) Considering and evaluating aspects of the mental disorder(s) 
relevant to your ability to work; and
    (3) Organizing and presenting the findings in a clear, concise, and 
consistent manner.
    (b) Use of the procedure to record pertinent findings and rate the 
degree of functional loss. (1) This procedure requires us to record the 
pertinent signs, symptoms, findings, functional limitations, and effects 
of treatment contained in your case record. This will assist us in 
determining if a mental impairment(s) exists. Whether or not a mental 
impairment(s) exists is decided in the same way the question of a 
physical impairment is decided, i.e., the evidence must be carefully 
reviewed and conclusions supported by it. The mental status examination 
and psychiatric history will ordinarily provide the needed information. 
(See Sec. 404.1508 for further information about what is needed to show 
an impairment.)
    (2) If we determine that a mental impairment(s) exists, this 
procedure then requires us to indicate whether certain medical findings 
which have been found especially relevant to the ability to work are 
present or absent.
    (3) The procedure then requires us to rate the degree of functional 
loss resulting from the impairment(s). Four areas of function considered 
by us as essential to work have been identified, and the degree of 
functional loss in those areas must be rated on a scale that ranges from 
no limitation to a level of severity which is incompatible with the 
ability to perform those work-related functions. For the first two areas 
(activities of daily living and social functioning), the rating of 
limitation must be done based upon the following five point scale: none, 
slight, moderate, marked, and extreme. For the third area 
(concentration, persistence, or pace) the following five point scale 
must be used: never, seldom, often, frequent, and constant. For the 
fourth area (deterioration or decompensation in work or work-like 
settings), the following four point scale must be used: never, once or 
twice, repeated (three or more), and continual. The last two points for 
each of these scales represent a degree of limitation which is 
incompatible with the ability to perform the work-related function.

[[Page 352]]

    (c) Use of the procedure to evaluate mental impairments. Following 
the rating of the degree of functional loss resulting from the 
impairment, we must then determine the severity of the mental 
impairment(s).
    (1) If the four areas considered by us as essential to work have 
been rated to indicate a degree of limitation as none or slight in the 
first and second areas, never or seldom in the third area, and never in 
the fourth area, we can generally conclude that the impairment is not 
severe, unless the evidence otherwise indicates there is significant 
limitation of your mental ability to do basic work activities (see 
Sec. 404.1521).
    (2) If your mental impairment(s) is severe, we must then determine 
if it meets or equals a listed mental disorder. This is done by 
comparing our prior conclusions based on this procedure (i.e., the 
presence of certain medical findings considered by us as especially 
relevant to your ability to work and our rating of functional loss 
resulting from the mental impairment(s)) against the paragraph A and B 
criteria of the appropriate listed mental disorder(s). If we determine 
that paragraph C criteria will be used in lieu of paragraph B criteria 
(see listings 12.03 and 12.06), we will, by following this procedure, 
indicate on the document whether the evidence is sufficient to establish 
the presence or absence of the criteria. (See paragraph (d) of this 
section).
    (3) If you have a severe impairment(s), but the impairment(s) 
neither meets nor equals the listings, we must then do a residual 
functional capacity assessment.
    (4) At all adjudicative levels we must, in each case, incorporate 
the pertinent findings and conclusions based on this procedure in our 
decision rationale. Our rationale must show the significant history, 
including examination, laboratory findings, and functional limitations 
that we considered in reaching conclusions about the severity of the 
mental impairment(s).
    (d) Preparation of the document. A standard document outlining the 
steps of this procedure must be completed by us in each case at the 
initial, reconsideration, administrative law judge hearing, and Appeals 
Council levels (when the Appeals Council issues a decision).
    (1) At the initial and reconsideration levels the standard document 
must be completed and signed by our medical consultant. At the 
administrative law judge hearing level, several options are available:
    (i) The administrative law judge may complete the document without 
the assistance of a medical advisor;
    (ii) The administrative law judge may call a medical advisor for 
assistance in preparing the document; or
    (iii) Where new evidence is received that is not merely cumulative 
of evidence already in your case file or where the issue of a mental 
impairment arises for the first time at the administrative law judge 
hearing level, the administrative law judge may decide to remand the 
case to the State agency for completion of the document and a new 
determination. Remand may also be made in situations where the services 
of a medical advisor are determined necessary but unavailable to the 
administrative law judge. In such circumstances, however, a remand may 
ordinarily be made only once.
    (2) For all cases involving mental disorders at the administrative 
law judge hearing or Appeals Council levels, the standard document will 
be appended to the decision.

(Approved by the Office of Management and Budget under control number 
0960-0413)


[50 FR 35065, Aug. 28, 1985, as amended at 55 FR 51229, Dec. 12, 1990; 
57 FR 30120, July 8, 1992]



Sec. 404.1521  What we mean by an impairment(s) that is not severe.

    (a) Non-severe impairment(s). An impairment or combination of 
impairments is not severe if it does not significantly limit your 
physical or mental ability to do basic work activities.
    (b) Basic work activities. When we talk about basic work activities, 
we mean the abilities and aptitudes necessary to do most jobs. Examples 
of these include--
    (1) Physical functions such as walking, standing, sitting, lifting, 
pushing, pulling, reaching, carrying, or handling;

[[Page 353]]

    (2) Capacities for seeing, hearing, and speaking;
    (3) Understanding, carrying out, and remembering simple 
instructions;
    (4) Use of judgment;
    (5) Responding appropriately to supervision, co-workers and usual 
work situations; and
    (6) Dealing with changes in a routine work setting.

[50 FR 8728, Mar. 5, 1985]



Sec. 404.1522  When you have two or more unrelated impairments--initial claims.

    (a) Unrelated severe impairments. We cannot combine two or more 
unrelated severe impairments to meet the 12-month duration test. If you 
have a severe impairment(s) and then develop another unrelated severe 
impairment(s) but neither one is expected to last for 12 months, we 
cannot find you disabled, even though the two impairments in combination 
last for 12 months.
    (b) Concurrent impairments. If you have two or more concurrent 
impairments which, when considered in combination, are severe, we must 
also determine whether the combined effect of your impairments can be 
expected to continue to be severe for 12 months. If one or more of your 
impairments improves or is expected to improve within 12 months, so that 
the combined effect of your remaining impairments is no longer severe, 
we will find that you do not meet the 12-month duration test.

[50 FR 8728, Mar. 5, 1985]



Sec. 404.1523  Multiple impairments.

    In determining whether your physical or mental impairment or 
impairments are of a sufficient medical severity that such impairment or 
impairments could be the basis of eligibility under the law, we will 
consider the combined effect of all of your impairments without regard 
to whether any such impairment, if considered separately, would be of 
sufficient severity. If we do find a medically severe combination of 
impairments, the combined impact of the impairments will be considered 
throughout the disability determination process. If we do not find that 
you have a medically severe combination of impairments, we will 
determine that you are not disabled (see Sec. 404.1520).

[50 FR 8728, Mar. 5, 1985]

                         Medical Considerations



Sec. 404.1525  Listing of Impairments in appendix 1.

    (a) Purpose of the Listing of Impairments. The Listing of 
Impairments describes, for each of the major body systems, impairments 
which are considered severe enough to prevent a person from doing any 
gainful activity. Most of the listed impairments are permanent or 
expected to result in death, or a specific statement of duration is 
made. For all others, the evidence must show that the impairment has 
lasted or is expected to last for a continuous period of at least 12 
months.
    (b) Adult and childhood diseases. The Listing of Impairments 
consists of two parts:
    (1) Part A contains medical criteria that apply to adult persons age 
18 and over. The medical criteria in part A may also be applied in 
evaluating impairments in persons under age 18 if the disease processes 
have a similar effect on adults and younger persons.
    (2) Part B contains additional medical criteria that apply only to 
the evaluation of impairments of persons under age 18. Certain criteria 
in part A do not give appropriate consideration to the particular 
effects of the disease processes in childhood; i.e., when the disease 
process is generally found only in children or when the disease process 
differs in its effect on children than on adults. Additional criteria 
are included in part B, and the impairment categories are, to the extent 
possible, numbered to maintain a relationship with their counterparts in 
part A. In evaluating disability for a person under age 18, part B will 
be used first. If the medical criteria in part B do not apply, then the 
medical criteria in part A will be used.
    (c) How to use the Listing of Impairments. Each section of the 
Listing of Impairments has a general introduction containing definitions 
of key concepts used in that section. Certain specific medical findings, 
some of which are required in establishing a diagnosis

[[Page 354]]

or in confirming the existence of an impairment for the purpose of this 
Listing, are also given in the narrative introduction. If the medical 
findings needed to support a diagnosis are not given in the introduction 
or elsewhere in the listing, the diagnosis must still be established on 
the basis of medically acceptable clinical and laboratory diagnostic 
techniques. Following the introduction in each section, the required 
level of severity of impairment is shown under ``Category of 
Impairments'' by one or more sets of medical findings. The medical 
findings consist of symptoms, signs, and laboratory findings.
    (d) Diagnosis of impairments. We will not consider your impairment 
to be one listed in appendix 1 solely because it has the diagnosis of a 
listed impairment. It must also have the findings shown in the Listing 
of that impairment.
    (e) Addiction to alcohol or drugs. If you have a condition diagnosed 
as addiction to alcohol or drugs, this will not, by itself, be a basis 
for determining whether you are, or are not, disabled. As with any other 
medical condition, we will decide whether you are disabled based on 
symptoms, signs, and laboratory findings.
    (f) Symptoms as criteria of listed impairment(s). Some listed 
impairment(s) include symptoms usually associated with those 
impairment(s) as criteria. Generally, when a symptom is one of the 
criteria in a listed impairment, it is only necessary that the symptom 
be present in combination with the other criteria. It is not necessary, 
unless the listing specifically states otherwise, to provide information 
about the intensity, persistence or limiting effects of the symptom as 
long as all other findings required by the specific listing are present.

[45 FR 55584, Aug. 20, 1980, as amended at 56 FR 57941, Nov. 14, 1991]



Sec. 404.1526  Medical equivalence.

    (a) How medical equivalence is determined. We will decide that your 
impairment(s) is medically equivalent to a listed impairment in appendix 
1 if the medical findings are at least equal in severity and duration to 
the listed findings. We will compare the symptoms, signs, and laboratory 
findings about your impairment(s), as shown in the medical evidence we 
have about your claim, with the medical criteria shown with the listed 
impairment. If your impairment is not listed, we will consider the 
listed impairment most like your impairment to decide whether your 
impairment is medically equal. If you have more than one impairment, and 
none of them meets or equals a listed impairment, we will review the 
symptoms, signs, and laboratory findings about your impairments to 
determine whether the combination of your impairments is medically equal 
to any listed impairment.
    (b) Medical equivalence must be based on medical findings. We will 
always base our decision about whether your impairment(s) is medically 
equal to a listed impairment on medical evidence only. Any medical 
findings in the evidence must be supported by medically acceptable 
clinical and laboratory diagnostic techniques. We will also consider the 
medical opinion given by one or more medical or psychological 
consultants designated by the Secretary in deciding medical equivalence. 
(See Sec. 404.1616.)
    (c) Who is a designated medical or psychological consultant. A 
medical or psychological consultant designated by the Secretary includes 
any medical or psychological consultant employed or engaged to make 
medical judgments by the Social Security Administration, the Railroad 
Retirement Board, or a State agency authorized to make disability 
determinations. A medical consultant must be a physician. A 
psychological consultant used in cases where there is evidence of a 
mental impairment must be a qualified psychologist. (See Sec. 404.1616 
for the qualifications we consider necessary for a psychologist to be a 
consultant.)

[45 FR 55584, Aug. 20, 1980, as amended at 52 FR 33926, Sept. 9, 1987]

[[Page 355]]



Sec. 404.1527  Evaluating medical opinions about your impairment(s) or disability.

    (a) General. (1) You can only be found disabled if you are unable to 
do any substantial gainful activity by reason of any medically 
determinable physical or mental impairment which can be expected to 
result in death or which has lasted or can be expected to last for a 
continuous period of not less than 12 months. See Sec. 404.1505. Your 
impairment must result from anatomical, physiological, or psychological 
abnormalities which are demonstrable by medically acceptable clinical 
and laboratory diagnostic techniques. See Sec. 404.1508.
    (2) Evidence that you submit or that we obtain may contain medical 
opinions. Medical opinions are statements from physicians and 
psychologists or other acceptable medical sources that reflect judgments 
about the nature and severity of your impairment(s), including your 
symptoms, diagnosis and prognosis, what you can still do despite 
impairment(s), and your physical or mental restrictions.
    (b) How we consider medical opinions. In deciding whether you are 
disabled, we will always consider the medical opinions in your case 
record together with the rest of the relevant evidence we receive.
    (c) Making disability determinations. After we review all of the 
evidence relevant to your claim, including medical opinions, we make 
findings about what the evidence shows.
    (1) If all of the evidence we receive, including all medical 
opinion(s), is consistent, and there is sufficient evidence for us to 
decide whether you are disabled, we will make our determination or 
decision based on that evidence.
    (2) If any of the evidence in your case record, including any 
medical opinion(s), is inconsistent with other evidence or is internally 
inconsistent, we will weigh all of the evidence and see whether we can 
decide whether you are disabled based on the evidence we have.
    (3) If the evidence is consistent but we do not have sufficient 
evidence to decide whether you are disabled, or if after weighing the 
evidence we decide we cannot reach a conclusion about whether you are 
disabled, we will try to obtain additional evidence under the provisions 
of Secs. 404.1512 and 404.1519 through 404.1519h. We will request 
additional existing records, recontact your treating sources or any 
other examining sources, ask you to undergo a consultative examination 
at our expense, or ask you or others for more information. We will 
consider any additional evidence we receive together with the evidence 
we already have.
    (4) When there are inconsistencies in the evidence that cannot be 
resolved, or when despite efforts to obtain additional evidence the 
evidence is not complete, we will make a determination or decision based 
on the evidence we have.
    (d) How we weigh medical opinions. Regardless of its source, we will 
evaluate every medical opinion we receive. Unless we give a treating 
source's opinion controlling weight under paragraph (d)(2) of this 
section, we consider all of the following factors in deciding the weight 
we give to any medical opinion.
    (1) Examining relationship. Generally, we give more weight to the 
opinion of a source who has examined you than to the opinion of a source 
who has not examined you.
    (2) Treatment relationship. Generally, we give more weight to 
opinions from your treating sources, since these sources are likely to 
be the medical professionals most able to provide a detailed, 
longitudinal picture of your medical impairment(s) and may bring a 
unique perspective to the medical evidence that cannot be obtained from 
the objective medical findings alone or from reports of individual 
examinations, such as consultative examinations or brief 
hospitalizations. If we find that a treating source's opinion on the 
issue(s) of the nature and severity of your impairment(s) is well-
supported by medically acceptable clinical and laboratory diagnostic 
techniques and is not inconsistent with the other substantial evidence 
in your case record, we will give it controlling weight. When we do not 
give the treating source's opinion controlling weight, we apply the 
factors listed below, as well as the factors in paragraphs (d) (3) 
through (5) of this section in determining the weight to give the 
opinion. We will always give good reasons in our notice of determination 
or

[[Page 356]]

decision for the weight we give your treating source's opinion.
    (i) Length of the treatment relationship and the frequency of 
examination. Generally, the longer a treating source has treated you and 
the more times you have been seen by a treating source, the more weight 
we will give to the source's medical opinion. When the treating source 
has seen you a number of times and long enough to have obtained a 
longitudinal picture of your impairment, we will give the source's 
opinion more weight than we would give it if it were from a nontreating 
source.
    (ii) Nature and extent of the treatment relationship. Generally, the 
more knowledge a treating source has about your impairment(s) the more 
weight we will give to the source's medical opinion. We will look at the 
treatment the source has provided and at the kinds and extent of 
examinations and testing the source has performed or ordered from 
specialists and independent laboratories. For example, if your 
ophthalmologist notices that you have complained of neck pain during 
your eye examinations, we will consider his or her opinion with respect 
to your neck pain, but we will give it less weight than that of another 
physician who has treated you for the neck pain. When the treating 
source has reasonable knowledge of your impairment(s), we will give the 
source's opinion more weight than we would give it if it were from a 
nontreating source.
    (3) Supportability. The more a medical source presents relevant 
evidence to support an opinion, particularly medical signs and 
laboratory findings, the more weight we will give that opinion. The 
better an explanation a source provides for an opinion, the more weight 
we will give that opinion. Furthermore, because nonexamining sources 
have no examining or treating relationship with you, the weight we will 
give their opinions will depend on the degree to which they provide 
supporting explanations for their opinions. We will evaluate the degree 
to which these opinions consider all of the pertinent evidence in your 
claim, including opinions of treating and other examining sources.
    (4) Consistency. Generally, the more consistent an opinion is with 
the record as a whole, the more weight we will give to that opinion.
    (5) Specialization. We generally give more weight to the opinion of 
a specialist about medical issues related to his or her area of 
specialty than to the opinion of a source who is not a specialist.
    (6) Other factors. When we consider how much weight to give to a 
medical opinion, we will also consider any factors you or others bring 
to our attention, or of which we are aware, which tend to support or 
contradict the opinion.
    (e) Medical source opinions on issues reserved to the Secretary. (1) 
Opinions that you are disabled. We are responsible for making the 
determination or decision about whether you meet the statutory 
definition of disability. In so doing, we review all of the medical 
findings and other evidence that support a medical source's statement 
that you are disabled. A statement by a medical source that you are 
``disabled'' or ``unable to work'' does not mean that we will determine 
that you are disabled.
    (2) Other opinions on issues reserved to the Secretary. We use 
medical sources, including your treating source, to provide evidence, 
including opinions, on the nature and severity of your impairment(s). 
Although we consider opinions from treating and examining sources on 
issues such as whether your impairment(s) meets or equals the 
requirements of any impairment(s) in the Listing of Impairments in 
appendix 1 of this subpart, your residual functional capacity (see 
Secs. 404.1545 and 404.1546), or the application of vocational factors, 
the final responsibility for deciding these issues is reserved to the 
Secretary. We will not give any special significance to the source of 
the opinion on these issues.
    (f) Opinions of nonexamining medical and psychological consultants 
and other nonexamining physicians and psychologists. We consider all 
evidence from nonexamining physicians and psychologists to be opinion 
evidence. When we consider the opinions of nonexamining sources on the 
nature and severity of your impairments, we apply the rules set forth in 
paragraphs (a) through (e)

[[Page 357]]

of this section. In addition, the following rules apply to State agency 
medical and psychological consultants, and to medical advisors we 
consult in connection with administrative law judge hearings and Appeals 
Council review.
    (1) At the initial and reconsideration steps in the administrative 
review process, except in disability hearings, State agency medical and 
psychological consultants are members of the teams that make the 
determinations of disability. A State agency medical or psychological 
consultant will consider the evidence in your case record and make 
findings of fact about the medical issues, including, but not limited 
to, the existence and severity of your impairment(s), the existence and 
severity of your symptoms, whether your impairment(s) meets or equals 
the requirements for any impairment listed in appendix 1 to this 
subpart, and your residual functional capacity. These administrative 
findings of fact are based on the evidence in your case record but are 
not themselves evidence at these steps.
    (2) Administrative law judges are responsible for reviewing the 
evidence and making findings of fact and conclusions of law. 
Administrative law judges are not bound by any findings made by State 
agency medical or psychological consultants. However, these findings are 
considered at the hearing level. See Sec. 404.1512(b)(6). When 
administrative law judges consider these findings, they will evaluate 
them using the rules set forth in paragraphs (a) through (e) of this 
section. Also, administrative law judges may ask for and consider the 
opinions of medical advisors on the nature and severity of your 
impairment(s) and whether your impairment(s) equals the requirements of 
any listed impairment in appendix 1 to this subpart.
    (3) When the Appeals Council makes a decision, it will follow the 
same rules for considering opinion evidence as administrative law judges 
follow.

[56 FR 36960, Aug. 1, 1991]



Sec. 404.1528  Symptoms, signs, and laboratory findings.

    Medical findings consist of symptoms, signs, and laboratory 
findings:
    (a) Symptoms are your own description of your physical or mental 
impairment. Your statements alone are not enough to establish that there 
is a physical or mental impairment.
    (b) Signs are anatomical, physiological, or psychological 
abnormalities which can be observed, apart from your statements 
(symptoms). Signs must be shown by medically acceptable clinical 
diagnostic techniques. Pyschiatric signs are medically demonstrable 
phenomena which indicate specific abnormalities of behavior, affect, 
thought, memory, orientation and contact with reality. They must also be 
shown by observable facts that can be medically described and evaluated.
    (c) Laboratory findings are anatomical, physiological, or 
psychological phenomena which can be shown by the use of medically 
acceptable laboratory diagnostic techniques. Some of these diagnostic 
techniques include chemical tests, electrophysiological studies 
(electrocardiogram, electroencephalogram, etc.), roentgenological 
studies (X-rays), and psychological tests.



Sec. 404.1529  How we evaluate symptoms, including pain.

    (a) General. In determining whether you are disabled, we consider 
all your symptoms, including pain, and the extent to which your symptoms 
can reasonably be accepted as consistent with the objective medical 
evidence and other evidence. By objective medical evidence, we mean 
medical signs and laboratory findings as defined in Sec. 404.1528 (b) 
and (c). By other evidence, we mean the kinds of evidence described in 
Secs. 404.1512(b) (2) through (6) and 404.1513(b) (1), (4), and (5) and 
(e). These include statements or reports from you, your treating or 
examining physician or psychologist, and others about your medical 
history, diagnosis, prescribed treatment, daily activities, efforts to 
work, and any other evidence showing how your impairment(s) and any 
related symptoms affect your ability to work. We will consider all of 
your statements about your symptoms, such as pain, and any description 
you, your physician, your psychologist, or other persons may provide 
about how the symptoms affect your activities of

[[Page 358]]

daily living and your ability to work. However, statements about your 
pain or other symptoms will not alone establish that you are disabled; 
there must be medical signs and laboratory findings which show that you 
have a medical impairment(s) which could reasonably be expected to 
produce the pain or other symptoms alleged and which, when considered 
with all of the other evidence (including statements about the intensity 
and persistence of your pain or other symptoms which may reasonably be 
accepted as consistent with the medical signs and laboratory findings), 
would lead to a conclusion that you are disabled. In evaluating the 
intensity and persistence of your symptoms, including pain, we will 
consider all of the available evidence, including your medical history, 
the medical signs and laboratory findings and statements about how your 
symptoms affect you. (Section 404.1527 explains how we consider opinions 
of your treating source and other medical opinions on the existence and 
severity of your symptoms, such as pain.) We will then determine the 
extent to which your alleged functional limitations and restrictions due 
to pain or other symptoms can reasonably be accepted as consistent with 
the medical signs and laboratory findings and other evidence to decide 
how your symptoms affect your ability to work.
    (b) Need for medically determinable impairment that could reasonably 
be expected to produce your symptoms, such as pain. Your symptoms, such 
as pain, fatigue, shortness of breath, weakness, or nervousness, will 
not be found to affect your ability to do basic work activities unless 
medical signs or laboratory findings show that a medically determinable 
impairment(s) is present. Medical signs and laboratory findings, 
established by medically acceptable clinical or laboratory diagnostic 
techniques, must show the existence of a medical impairment(s) which 
results from anatomical, physiological, or psychological abnormalities 
and which could reasonably be expected to produce the pain or other 
symptoms alleged. At the initial or reconsideration step in the 
administrative review process (except in disability hearings), a State 
agency medical or psychological consultant (or other medical or 
psychological consultant designated by the Secretary) directly 
participates in determining whether your medically determinable 
impairment(s) could reasonably be expected to produce your alleged 
symptoms. In the disability hearing process, a medical or psychological 
consultant may provide an advisory assessment to assist a disability 
hearing officer in determining whether your impairment(s) could 
reasonably be expected to produce your alleged symptoms. At the 
administrative law judge hearing or Appeals Council level, the 
administrative law judge or the Appeals Council may ask for and consider 
the opinion of a medical advisor concerning whether your impairment(s) 
could reasonably be expected to produce your alleged symptoms. The 
finding that your impairment(s) could reasonably be expected to produce 
your pain or other symptoms does not involve a determination as to the 
intensity, persistence, or functionally limiting effects of your 
symptoms. We will develop evidence regarding the possibility of a 
medically determinable mental impairment when we have information to 
suggest that such an impairment exists, and you allege pain or other 
symptoms but the medical signs and laboratory findings do not 
substantiate any physical impairment(s) capable of producing the pain or 
other symptoms.
    (c) Evaluating the intensity and persistence of your symptoms, such 
as pain, and determining the extent to which your symptoms limit your 
capacity for work--(1) General. When the medical signs or laboratory 
findings show that you have a medically determinable impairment(s) that 
could reasonably be expected to produce your symptoms, such as pain, we 
must then evaluate the intensity and persistence of your symptoms so 
that we can determine how your symptoms limit your capacity for work. In 
evaluating the intensity and persistence of your symptoms, we consider 
all of the available evidence, including your medical history, the 
medical signs and laboratory findings, and statements from you, your 
treating or examining physician or psychologist, or other persons about 
how your symptoms affect you. We also consider the medical opinions of 
your treating

[[Page 359]]

source and other medical opinions as explained in Sec. 404.1527. 
Paragraphs (c)(2) through (c)(4) of this section explain further how we 
evaluate the intensity and persistence of your symptoms and how we 
determine the extent to which your symptoms limit your capacity for 
work, when the medical signs or laboratory findings show that you have a 
medically determinable impairment(s) that could reasonably be expected 
to produce your symptoms, such as pain.
    (2) Consideration of objective medical evidence. Objective medical 
evidence is evidence obtained from the application of medically 
acceptable clinical and laboratory diagnostic techniques, such as 
evidence of reduced joint motion, muscle spasm, sensory deficit or motor 
disruption. Objective medical evidence of this type is a useful 
indicator to assist us in making reasonable conclusions about the 
intensity and persistence of your symptoms and the effect those 
symptoms, such as pain, may have on your ability to work. We must always 
attempt to obtain objective medical evidence and, when it is obtained, 
we will consider it in reaching a conclusion as to whether you are 
disabled. However, we will not reject your statements about the 
intensity and persistence of your pain or other symptoms or about the 
effect your symptoms have on your ability to work solely because the 
available objective medical evidence does not substantiate your 
statements.
    (3) Consideration of other evidence. Since symptoms sometimes 
suggest a greater severity of impairment than can be shown by objective 
medical evidence alone, we will carefully consider any other information 
you may submit about your symptoms. The information that you, your 
treating or examining physician or psychologist, or other persons 
provide about your pain or other symptoms (e.g., what may precipitate or 
aggravate your symptoms, what medications, treatments or other methods 
you use to alleviate them, and how the symptoms may affect your pattern 
of daily living) is also an important indicator of the intensity and 
persistence of your symptoms. Because symptoms, such as pain, are 
subjective and difficult to quantify, any symptom-related functional 
limitations and restrictions which you, your treating or examining 
physician or psychologist, or other persons report, which can reasonably 
be accepted as consistent with the objective medical evidence and other 
evidence, will be taken into account as explained in paragraph (c)(4) of 
this section in reaching a conclusion as to whether you are disabled. We 
will consider all of the evidence presented, including information about 
your prior work record, your statements about your symptoms, evidence 
submitted by your treating, examining or consulting physician or 
psychologist, and observations by our employees and other persons. 
Section 404.1527 explains in detail how we consider and weigh treating 
source and other medical opinions about the nature and severity of your 
impairment(s) and any related symptoms, such as pain. Factors relevant 
to your symptoms, such as pain, which we will consider include:
    (i) Your daily activities;
    (ii) The location, duration, frequency, and intensity of your pain 
or other symptoms;
    (iii) Precipitating and aggravating factors;
    (iv) The type, dosage, effectiveness, and side effects of any 
medication you take or have taken to alleviate your pain or other 
symptoms;
    (v) Treatment, other than medication, you receive or have received 
for relief of your pain or other symptoms;
    (vi) Any measures you use or have used to relieve your pain or other 
symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes 
every hour, sleeping on a board, etc.); and
    (vii) Other factors concerning your functional limitations and 
restrictions due to pain or other symptoms.
    (4) How we determine the extent to which symptoms, such as pain, 
affect your capacity to perform basic work activities. In determining 
the extent to which your symptoms, such as pain, affect your capacity to 
perform basic work activities, we consider all of the available evidence 
described in paragraphs (c)(1) through (c)(3) of this section. We will 
consider your statements about the intensity, persistence, and limiting 
effects of your symptoms, and

[[Page 360]]

we will evaluate your statements in relation to the objective medical 
evidence and other evidence, in reaching a conclusion as to whether you 
are disabled. We will consider whether there are any inconsistencies in 
the evidence and the extent to which there are any conflicts between 
your statements and the rest of the evidence, including your medical 
history, the medical signs and laboratory findings, and statements by 
your treating or examining physician or psychologist or other persons 
about how your symptoms affect you. Your symptoms, including pain, will 
be determined to diminish your capacity for basic work activities to the 
extent that your alleged functional limitations and restrictions due to 
symptoms, such as pain, can reasonably be accepted as consistent with 
the objective medical evidence and other evidence.
    (d) Consideration of symptoms in the disability determination 
process. We follow a set order of steps to determine whether you are 
disabled. If you are not doing substantial gainful activity, we consider 
your symptoms, such as pain, to evaluate whether you have a severe 
physical or mental impairment(s), and at each of the remaining steps in 
the process. Sections 404.1520 and 404.1520a explain this process in 
detail. We also consider your symptoms, such as pain, at the appropriate 
steps in our review when we consider whether your disability continues. 
Sections 404.1579 and 404.1594 explain the procedure we follow in 
reviewing whether your disability continues.
    (1) Need to establish a severe medically determinable impairment(s). 
Your symptoms, such as pain, fatigue, shortness of breath, weakness, or 
nervousness, are considered in making a determination as to whether your 
impairment or combination of impairment(s) is severe. (See 
Sec. 404.1520(c).)
    (2) Decision whether the Listing of Impairments is met. Some listed 
impairment(s) include symptoms, such as pain, as criteria. Section 
404.1525(f) explains how we consider your symptoms when your symptoms 
are included as criteria for a listed impairment.
    (3) Decision whether the Listing of Impairments is equaled. If your 
impairment is not the same as a listed impairment, we must determine 
whether your impairment(s) is medically equivalent to a listed 
impairment. Section 404.1526 explains how we make this determination. 
Under Sec. 404.1526(b), we will consider equivalence based on medical 
evidence only. In considering whether your symptoms, signs, and 
laboratory findings are medically equal to the symptoms, signs, and 
laboratory findings of a listed impairment, we will look to see whether 
your symptoms, signs, and laboratory findings are at least equal in 
severity to the listed criteria. However, we will not substitute your 
allegations of pain or other symptoms for a missing or deficient sign or 
laboratory finding to raise the severity of your impairment(s) to that 
of a listed impairment. If the symptoms, signs, and laboratory findings 
of your impairment(s) are equivalent in severity to those of a listed 
impairment, we will find you disabled. If it does not, we will consider 
the impact of your symptoms on your residual functional capacity. (See 
paragraph (d)(4) of this section.)
    (4) Impact of symptoms (including pain) on residual functional 
capacity. If you have a medically determinable severe physical or mental 
impairment(s), but your impairment(s) does not meet or equal an 
impairment listed in appendix 1 of this subpart, we will consider the 
impact of your impairment(s) and any related symptoms, including pain, 
on your residual functional capacity. (See Sec. 404.1545.)

[56 FR 57941, Nov. 14, 1991]



Sec. 404.1530  Need to follow prescribed treatment.

    (a) What treatment you must follow. In order to get benefits, you 
must follow treatment prescribed by your physician if this treatment can 
restore your ability to work.
    (b) When you do not follow prescribed treatment. If you do not 
follow the prescribed treatment without a good reason, we will not find 
you disabled or, if you are already receiving benefits, we will stop 
paying you benefits.
    (c) Acceptable reasons for failure to follow prescribed treatment. 
We will consider your physical, mental, educational, and linguistic 
limitations (including any lack of facility with the English language) 
when determining if

[[Page 361]]

you have an acceptable reason for failure to follow prescribed 
treatment. The following are examples of a good reason for not following 
treatment:
    (1) The specific medical treatment is contrary to the established 
teaching and tenets of your religion.
    (2) The prescribed treatment would be cataract surgery for one eye, 
when there is an impairment of the other eye resulting in a severe loss 
of vision and is not subject to improvement through treatment.
    (3) Surgery was previously performed with unsuccessful results and 
the same surgery is again being recommended for the same impairment.
    (4) The treatment because of its magnitude (e.g. open heart 
surgery), unusual nature (e.g., organ transplant), or other reason is 
very risky for you; or
    (5) The treatment involves amputation of an extremity, or a major 
part of an extremity.

[45 FR 55584, Aug. 20, 1980, as amended at 59 FR 1635, Jan. 12, 1994]



Sec. 404.1535  How we will determine whether your drug addiction or alcoholism is a contributing factor material to the determination of disability.

    (a) General. If we find that you are disabled and have medical 
evidence of your drug addiction or alcoholism, we must determine whether 
your drug addiction or alcoholism is a contributing factor material to 
the determination of disability.
    (b) Process we will follow when we have medical evidence of your 
drug addiction or alcoholism. (1) The key factor we will examine in 
determining whether drug addiction or alcoholism is a contributing 
factor material to the determination of disability is whether we would 
still find you disabled if you stopped using drugs or alcohol.
    (2) In making this determination, we will evaluate which of your 
current physical and mental limitations, upon which we based our current 
disability determination, would remain if you stopped using drugs or 
alcohol and then determine whether any or all of your remaining 
limitations would be disabling.
    (i) If we determine that your remaining limitations would not be 
disabling, we will find that your drug addiction or alcoholism is a 
contributing factor material to the determination of disability.
    (ii) If we determine that your remaining limitations are disabling, 
you are disabled independent of your drug addiction or alcoholism and we 
will find that your drug addiction or alcoholism is not a contributing 
factor material to the determination of disability.

[60 FR 8147, Feb. 10, 1995]



Sec. 404.1536  Treatment required for individuals whose drug addiction or alcoholism is a contributing factor material to the determination of disability.

    (a) If we determine that you are disabled and drug addiction or 
alcoholism is a contributing factor material to the determination of 
disability (as described in Sec. 404.1535), you must avail yourself of 
appropriate treatment for your drug addiction or alcoholism at an 
institution or facility approved by us when this treatment is available 
and make progress in your treatment. Generally, you are not expected to 
pay for this treatment. You will not be paid benefits for any month 
after the month we have notified you in writing that--
    (1) You did not comply with the terms, conditions and requirements 
of the treatment which has been made available to you; or
    (2) You did not avail yourself of the treatment after you had been 
notified that it is available to you.
    (b) If your benefits are suspended for failure to comply with 
treatment requirements, your benefits can be reinstated in accordance 
with the rules in Sec. 404.470.

[60 FR 8147, Feb. 10, 1995]



Sec. 404.1537  What we mean by appropriate treatment.

    By appropriate treatment, we mean treatment for drug addiction or 
alcoholism that serves the needs of the individual in the least 
restrictive setting possible consistent with your treatment plan. These 
settings range from outpatient counseling services through a variety of 
residential treatment settings including acute detoxification,

[[Page 362]]

short-term intensive residential treatment, long-term therapeutic 
residential treatment, and long-term recovery houses. Appropriate 
treatment is determined with the involvement of a State licensed or 
certified addiction professional on the basis of a detailed assessment 
of the individual's presenting symptomatology, psychosocial profile, and 
other relevant factors. This assessment may lead to a determination that 
more than one treatment modality is appropriate for the individual. The 
treatment will be provided or overseen by an approved institution or 
facility. This treatment may include (but is not limited to)--
    (a) Medical examination and medical management;
    (b) Detoxification;
    (c) Medication management to include substitution therapy (e.g., 
methadone);
    (d) Psychiatric, psychological, psychosocial, vocational, or other 
substance abuse counseling in a residential or outpatient treatment 
setting; or
    (e) Relapse prevention.

[60 FR 8148, Feb. 10, 1995]



Sec. 404.1538  What we mean by approved institutions or facilities.

    Institutions or facilities that we may approve include--
    (a) An institution or facility that furnishes medically recognized 
treatment for drug addiction or alcoholism in conformity with applicable 
Federal or State laws and regulations;
    (b) An institution or facility used by or licensed by an appropriate 
State agency which is authorized to refer persons for treatment of drug 
addiction or alcoholism;
    (c) State licensed or certified care providers;
    (d) Programs accredited by the Commission on Accreditation for 
Rehabilitation Facilities (CARF) and/or the Joint Commission for the 
Accreditation of Healthcare Organizations (JCAHO) for the treatment of 
drug addiction or alcoholism;
    (e) Medicare or Medicaid certified care providers; or
    (f) Nationally recognized self-help drug addiction or alcoholism 
recovery programs (e.g., Alcoholics Anonymous or Narcotics Anonymous) 
when participation in these programs is specifically prescribed by a 
treatment professional at an institution or facility described in 
paragraphs (a) through (e) of this section as part of an individual's 
treatment plan.

[60 FR 8148, Feb. 10, 1995]



Sec. 404.1539  How we consider whether treatment is available.

    Our determination about whether treatment is available to you for 
your drug addiction or your alcoholism will depend upon--
    (a) The capacity of an approved institution or facility to admit you 
for appropriate treatment;
    (b) The location of the approved institution or facility, or the 
place where treatment, services or resources could be provided to you;
    (c) The availability and cost of transportation for you to the place 
of treatment;
    (d) Your general health, including your ability to travel and 
capacity to understand and follow the prescribed treatment;
    (e) Your particular condition and circumstances; and
    (f) The treatment that is prescribed for your drug addiction or 
alcoholism.

[60 FR 8148, Feb. 10, 1995]



Sec. 404.1540  Evaluating compliance with the treatment requirements.

    (a) General. Generally, we will consider information from the 
treatment institution or facility to evaluate your compliance with your 
treatment plan. The treatment institution or facility will:
    (1) Monitor your attendance at and participation in treatment 
sessions;
    (2) Provide reports of the results of any clinical testing (such as, 
hematological or urinalysis studies for individuals with drug addiction 
and hematological studies and breath analysis for individuals with 
alcoholism) when such tests are likely to yield important information;
    (3) Provide observational reports from the treatment professionals 
familiar with your individual case (subject to verification and Federal 
confidentiality requirements); or

[[Page 363]]

    (4) Provide their assessment or views on your noncompliance with 
treatment requirements.
    (b) Measuring progress. Generally, we will consider information from 
the treatment institution or facility to evaluate your progress in 
completing your treatment plan. Examples of milestones for measuring 
your progress with the treatment which has been prescribed for your drug 
addiction or alcoholism may include (but are not limited to)--
    (1) Abstinence from drug or alcohol use (initial progress may 
include significant reduction in use);
    (2) Consistent attendance at and participation in treatment 
sessions;
    (3) Improved social functioning and levels of gainful activity;
    (4) Participation in vocational rehabilitation activities; or
    (5) Avoidance of criminal activity.

[60 FR 8148, Feb. 10, 1995]



Sec. 404.1541  Establishment and use of referral and monitoring agencies.

    We will contract with one or more agencies in each of the States, 
Puerto Rico and the District of Columbia to provide services to 
individuals whose disabilities are based on a determination that drug 
addiction or alcoholism is a contributing factor material to the 
determination of disability (as described in Sec. 404.1535) and to 
submit information to us which we will use to make decisions about these 
individuals' benefits. These agencies will be known as referral and 
monitoring agencies. Their duties and responsibilities include (but are 
not limited to)--
    (a) Identifying appropriate treatment placements for individuals we 
refer to them;
    (b) Referring these individuals for treatment;
    (c) Monitoring the compliance and progress with the appropriate 
treatment of these individuals; and
    (d) Promptly reporting to us any individual's failure to comply with 
treatment requirements as well as failure to achieve progress through 
the treatment.

[60 FR 8148, Feb. 10, 1995]

                      Residual Functional Capacity



Sec. 404.1545  Your residual functional capacity.

    (a) General. Your impairment(s), and any related symptoms, such as 
pain, may cause physical and mental limitations that affect what you can 
do in a work setting. Your residual functional capacity is what you can 
still do despite your limitations. If you have more than one impairment, 
we will consider all of your impairment(s) of which we are aware. We 
will consider your ability to meet certain demands of jobs, such as 
physical demands, mental demands, sensory requirements, and other 
functions, as described in paragraphs (b), (c), and (d) of this section. 
Residual functional capacity is an assessment based upon all of the 
relevant evidence. It may include descriptions (even your own) of 
limitations that go beyond the symptoms, such as pain, that are 
important in the diagnosis and treatment of your medical condition. 
Observations by your treating or examining physicians or psychologists, 
your family, neighbors, friends, or other persons, of your limitations, 
in addition to those observations usually made during formal medical 
examinations, may also be used. These descriptions and observations, 
when used, must be considered along with your medical records to enable 
us to decide to what extent your impairment(s) keeps you from performing 
particular work activities. This assessment of your remaining capacity 
for work is not a decision on whether you are disabled, but is used as 
the basis for determining the particular types of work you may be able 
to do despite your impairment(s). Then, using the guidelines in 
Secs. 404.1560 through 404.1569a, your vocational background is 
considered along with your residual functional capacity in arriving at a 
disability determination or decision. In deciding whether your 
disability continues or ends, the residual functional capacity 
assessment may also be used to determine whether any medical improvement 
you have experienced is related to your ability to work as discussed in 
Sec. 404.1594.
    (b) Physical abilities. When we assess your physical abilities, we 
first assess

[[Page 364]]

the nature and extent of your physical limitations and then determine 
your residual functional capacity for work activity on a regular and 
continuing basis. A limited ability to perform certain physical demands 
of work activity, such as sitting, standing, walking, lifting, carrying, 
pushing, pulling, or other physical functions (including manipulative or 
postural functions, such as reaching, handling, stooping or crouching), 
may reduce your ability to do past work and other work.
    (c) Mental abilities. When we assess your mental abilities, we first 
assess the nature and extent of your mental limitations and restrictions 
and then determine your residual functional capacity for work activity 
on a regular and continuing basis. A limited ability to carry out 
certain mental activities, such as limitations in understanding, 
remembering, and carrying out instructions, and in responding 
appropriately to supervision, co-workers, and work pressures in a work 
setting, may reduce your ability to do past work and other work.
    (d) Other abilities affected by impairment(s). Some medically 
determinable impairment(s), such as skin impairment(s), epilepsy, 
impairment(s) of vision, hearing or other senses, and impairment(s) 
which impose environmental restrictions, may cause limitations and 
restrictions which affect other work-related abilities. If you have this 
type of impairment(s), we consider any resulting limitations and 
restrictions which may reduce your ability to do past work and other 
work in deciding your residual functional capacity.
    (e) Total limiting effects. When you have a severe impairment(s), 
but your symptoms, signs, and laboratory findings do not meet or equal 
those of a listed impairment in appendix 1 of this subpart, we will 
consider the limiting effects of all your impairment(s), even those that 
are not severe, in determining your residual functional capacity. Pain 
or other symptoms may cause a limitation of function beyond that which 
can be determined on the basis of the anatomical, physiological or 
psychological abnormalities considered alone; e.g., someone with a low 
back disorder may be fully capable of the physical demands consistent 
with those of sustained medium work activity, but another person with 
the same disorder, because of pain, may not be capable of more than the 
physical demands consistent with those of light work activity on a 
sustained basis. In assessing the total limiting effects of your 
impairment(s) and any related symptoms, we will consider all of the 
medical and nonmedical evidence, including the information described in 
Sec. 404.1529(c).

[56 FR 57943, Nov, 14, 1991]



Sec. 404.1546  Responsibility for assessing and determining residual functional capacity.

    The State agency staff medical or psychological consultants or other 
medical or psychological consultants designated by the Secretary are 
responsible for ensuring that the State agency makes a decision about 
your residual functional capacity. In cases where the State agency makes 
the disability determination, a State agency staff medical or 
psychological consultant must assess residual functional capacity where 
it is required. This assessment is based on all of the evidence we have, 
including any statements regarding what you can still do that have been 
provided by treating or examining physicians, consultative physicians, 
or any other medical or psychological consultant designated by the 
Secretary. See Sec. 404.1545. For cases in the disability hearing 
process, the responsibility for deciding your residual functional 
capacity rests with either the disability hearing officer or, if the 
disability hearing officer's reconsidered determination is changed under 
Sec. 404.918, with the Director of the Office of Disability Hearings or 
his or her delegate. For cases at the Administrative Law Judge hearing 
or Appeals Council level, the responsibility for deciding your residual 
functional capacity rests with the Administrative Law Judge or Appeals 
Council.

[56 FR 36962, Aug. 1, 1991]

[[Page 365]]

                        Vocational Considerations



Sec. 404.1560  When your vocational background will be considered.

    (a) General. If you are applying for a period of disability, or 
disability insurance benefits as a disabled worker, or child's insurance 
benefits based on disability which began before age 22, or widow's or 
widower's benefits based on disability for months after December 1990, 
and we cannot decide whether you are disabled on medical evidence alone, 
we will consider your residual functional capacity together with your 
vocational background.
    (b) Past relevant work. We will first compare your residual 
functional capacity with the physical and mental demands of the kind of 
work you have done in the past. If you still have the residual 
functional capacity to do your past relevant work, we will find that you 
can still do your past work, and we will determine that you are not 
disabled, without considering your vocational factors of age, education, 
and work experience.
    (c) Other work. If we find that you can no longer do the kind of 
work you have done in the past, we will then consider your residual 
functional capacity together with your vocational factors of age, 
education, and work experience to determine whether you can do other 
work. By other work we mean jobs that exist in significant numbers in 
the national economy.

[55 FR 11011, Mar. 26, 1990, as amended at 57 FR 30120, July 8, 1992]



Sec. 404.1561  Your ability to do work depends upon your residual functional capacity.

    If you can do your previous work (your usual work or other 
applicable past work), we will determine that you are not disabled. 
However, if your residual functional capacity is not enough to enable 
you to do any of your previous work, we must still decide if you can do 
any other work. To do this, we consider your residual functional 
capacity, and your age, education, and work experience. Any work (jobs) 
that you can do must exist in significant numbers in the national 
economy (either in the region where you live or in several regions of 
the country). Sections 404.1563 through 404.1565 explain how we evaluate 
your age, education, and work experience when we are deciding whether or 
not you are able to do other work.



Sec. 404.1562  If you have done only arduous unskilled physical labor.

    If you have only a marginal education and work experience of 35 
years or more during which you did arduous unskilled physical labor, and 
you are not working and are no longer able to do this kind of work 
because of a severe impairment(s), we will consider you unable to do 
lighter work, and therefore, disabled. However, if you are working or 
have worked despite your impairment(s) (except where the work is 
sporadic or is not medically advisable), we will review all the facts in 
your case, and we may find that you are not disabled. In addition, we 
will consider that you are not disabled if the evidence shows that you 
have training or past work experience which enables you to do 
substantial gainful activity in another occupation with your impairment, 
either on a full-time or a reasonably regular part-time basis.
    Example:  B is a 60-year-old miner with a fourth grade education who 
has a life-long history of arduous physical labor. B says that he is 
disabled because of arthritis of the spine, hips, and knees, and other 
impairments. Medical evidence shows a combination of impairments and 
establishes that these impairments prevent B from performing his usual 
work or any other type of arduous physical labor. His vocational 
background does not show that he has skills or capabilities needed to do 
lighter work which would be readily transferable to another work 
setting. Under these circumstances, we will find that B is disabled.



Sec. 404.1563  Your age as a vocational factor.

    (a) General. Age refers to how old you are (your chronological age) 
and the extent to which your age affects your ability to adapt to a new 
work situation and to do work in competition with others. However, we do 
not determine disability on your age alone. We must also consider your 
residual functional capacity, education, and work experience. If you are 
unemployed because of your age and you can still do a significant number 
of jobs which

[[Page 366]]

exist in the national economy, we will find that you are not disabled. 
We explain in detail how we consider your age as a vocational factor in 
appendix 2. However, we will not apply these age categories mechanically 
in a borderline situation.
    (b) Younger person. If you are under age 50, we generally do not 
consider that your age will seriously affect your ability to adapt to a 
new work situation. In some circumstances, however, we consider age 45 a 
handicap in adapting to a new work setting (see Rule 201.17 in appendix 
2).
    (c) Person approaching advanced age. If you are closely approaching 
advanced age (50-54), we will consider that your age, along with a 
severe impairment and limited work experience, may seriously affect your 
ability to adjust to a significant number of jobs in the national 
economy.
    (d) Person of advanced age. We consider that advanced age (55 or 
over) is the point where age significantly affects a person's ability to 
do substantial gainful activity. If you are severely impaired and of 
advanced age and you cannot do medium work (see Sec. 404.1567(c)), you 
may not be able to work unless you have skills that can be used in 
(transferred to) less demanding jobs which exist in significant numbers 
in the national economy. If you are close to retirement age (60-64) and 
have a severe impairment, we will not consider you able to adjust to 
sedentary or light work unless you have skills which are highly 
marketable.
    (e) Information about your age. We will usually not ask you to prove 
your age. However, if we need to know your exact age to determine 
whether you get disability benefits or if the amount of your benefit 
will be affected, we will ask you for evidence of your age.



Sec. 404.1564  Your education as a vocational factor.

    (a) General. Education is primarily used to mean formal schooling or 
other training which contributes to your ability to meet vocational 
requirements, for example, reasoning ability, communication skills, and 
arithmetical ability. However, if you do not have formal schooling, this 
does not necessarily mean that you are uneducated or lack these 
abilities. Past work experience and the kinds of responsibilities you 
had when you were working may show that you have intellectual abilities, 
although you may have little formal education. Your daily activities, 
hobbies, or the results of testing may also show that you have 
significant intellectual ability that can be used to work.
    (b) How we evaluate your education. The importance of your 
educational background may depend upon how much time has passed between 
the completion of your formal education and the beginning of your 
physical or mental impairment(s) and by what you have done with your 
education in a work or other setting. Formal education that you 
completed many years before your impairment began, or unused skills and 
knowledge that were a part of your formal education, may no longer be 
useful or meaningful in terms of your ability to work. Therefore, the 
numerical grade level that you completed in school may not represent 
your actual educational abilities. These may be higher or lower. 
However, if there is no other evidence to contradict it, we will use 
your numerical grade level to determine your educational abilities. The 
term education also includes how well you are able to communicate in 
English since this ability is often acquired or improved by education. 
In evaluating your educational level, we use the following categories:
    (1) Illiteracy. Illiteracy means the inability to read or write. We 
consider someone illiterate if the person cannot read or write a simple 
message such as instructions or inventory lists even though the person 
can sign his or her name. Generally, an illiterate person has had little 
or no formal schooling.
    (2) Marginal education. Marginal education means ability in 
reasoning, arithmetic, and language skills which are needed to do 
simple, unskilled types of jobs. We generally consider that formal 
schooling at a 6th grade level or less is a marginal education.
    (3) Limited education. Limited education means ability in reasoning, 
arithmetic, and language skills, but not enough to allow a person with 
these educational qualifications to do

[[Page 367]]

most of the more complex job duties needed in semi-skilled or skilled 
jobs. We generally consider that a 7th grade through the 11th grade 
level of formal education is a limited education.
    (4) High school education and above. High school education and above 
means abilities in reasoning, arithmetic, and language skills acquired 
through formal schooling at a 12th grade level or above. We generally 
consider that someone with these educational abilities can do semi-
skilled through skilled work.
    (5) Inability to communicate in English. Since the ability to speak, 
read and understand English is generally learned or increased at school, 
we may consider this an educational factor. Because English is the 
dominant language of the country, it may be difficult for someone who 
doesn't speak and understand English to do a job, regardless of the 
amount of education the person may have in another language. Therefore, 
we consider a person's ability to communicate in English when we 
evaluate what work, if any, he or she can do. It generally doesn't 
matter what other language a person may be fluent in.
    (6) Information about your education. We will ask you how long you 
attended school and whether you are able to speak, understand, read and 
write in English and do at least simple calculations in arithmetic. We 
will also consider other information about how much formal or informal 
education you may have had through your previous work, community 
projects, hobbies, and any other activities which might help you to 
work.



Sec. 404.1565  Your work experience as a vocational factor.

    (a) General. Work experience means skills and abilities you have 
acquired through work you have done which show the type of work you may 
be expected to do. Work you have already been able to do shows the kind 
of work that you may be expected to do. We consider that your work 
experience applies when it was done within the last 15 years, lasted 
long enough for you to learn to do it, and was substantial gainful 
activity. We do not usually consider that work you did 15 years or more 
before the time we are deciding whether you are disabled (or when the 
disability insured status requirement was last met, if earlier) applies. 
A gradual change occurs in most jobs so that after 15 years it is no 
longer realistic to expect that skills and abilities acquired in a job 
done then continue to apply. The 15-year guide is intended to insure 
that remote work experience is not currently applied. If you have no 
work experience or worked only ``off-and-on'' or for brief periods of 
time during the 15-year period, we generally consider that these do not 
apply. If you have acquired skills through your past work, we consider 
you to have these work skills unless you cannot use them in other 
skilled or semi-skilled work that you can now do. If you cannot use your 
skills in other skilled or semi-skilled work, we will consider your work 
background the same as unskilled. However, even if you have no work 
experience, we may consider that you are able to do unskilled work 
because it requires little or no judgment and can be learned in a short 
period of time.
    (b) Information about your work. Under certain circumstances, we 
will ask you about the work you have done in the past. If you cannot 
give us all of the information we need, we will try, with your 
permission, to get it from your employer or other person who knows about 
your work, such as a member of your family or a co-worker. When we need 
to consider your work experience to decide whether you are able to do 
work that is different from what you have done in the past, we will ask 
you to tell us about all of the jobs you have had in the last 15 years. 
You must tell us the dates you worked, all of the duties you did, and 
any tools, machinery, and equipment you used. We will need to know about 
the amount of walking, standing, sitting, lifting and carrying you did 
during the work day, as well as any other physical or mental duties of 
your job. If all of your work in the past 15 years has been arduous and 
unskilled, and you have very little education, we will ask you to tell 
us about all of your work from the time you first began working. This 
information could help you to get disability benefits.

[[Page 368]]



Sec. 404.1566  Work which exists in the national economy.

    (a) General. We consider that work exists in the national economy 
when it exists in significant numbers either in the region where you 
live or in several other regions of the country. It does not matter 
whether--
    (1) Work exists in the immediate area in which you live;
    (2) A specific job vacancy exists for you; or
    (3) You would be hired if you applied for work.
    (b) How we determine the existence of work. Work exists in the 
national economy when there is a significant number of jobs (in one or 
more occupations) having requirements which you are able to meet with 
your physical or mental abilities and vocational qualifications. 
Isolated jobs that exist only in very limited numbers in relatively few 
locations outside of the region where you live are not considered ``work 
which exists in the national economy''. We will not deny you disability 
benefits on the basis of the existence of these kinds of jobs. If work 
that you can do does not exist in the national economy, we will 
determine that you are disabled. However, if work that you can do does 
exist in the national economy, we will determine that you are not 
disabled.
    (c) Inability to obtain work. We will determine that you are not 
disabled if your residual functional capacity and vocational abilities 
make it possible for you to do work which exists in the national 
economy, but you remain unemployed because of--
    (1) Your inability to get work;
    (2) Lack of work in your local area;
    (3) The hiring practices of employers;
    (4) Technological changes in the industry in which you have worked;
    (5) Cyclical economic conditions;
    (6) No job openings for you;
    (7) You would not actually be hired to do work you could otherwise 
do; or
    (8) You do not wish to do a particular type of work.
    (d) Administrative notice of job data. When we determine that 
unskilled, sedentary, light, and medium jobs exist in the national 
economy (in significant numbers either in the region where you live or 
in several regions of the country), we will take administrative notice 
of reliable job information available from various governmental and 
other publications. For example, we will take notice of--
    (1) Dictionary of Occupational Titles, published by the Department 
of Labor;
    (2) County Business Patterns, published by the Bureau of the Census;
    (3) Census Reports, also published by the Bureau of the Census;
    (4) Occupational Analyses, prepared for the Social Security 
Administration by various State employment agencies; and
    (5) Occupational Outlook Handbook, published by the Bureau of Labor 
Statistics.
    (e) Use of vocational experts and other specialists. If the issue in 
determining whether you are disabled is whether your work skills can be 
used in other work and the specific occupations in which they can be 
used, or there is a similarly complex issue, we may use the services of 
a vocational expert or other specialist. We will decide whether to use a 
vocational expert or other specialist.



Sec. 404.1567  Physical exertion requirements.

    To determine the physical exertion requirements of work in the 
national economy, we classify jobs as sedentary, light, medium, heavy, 
and very heavy. These terms have the same meaning as they have in the 
Dictionary of Occupational Titles, published by the Department of Labor. 
In making disability determinations under this subpart, we use the 
following definitions:
    (a) Sedentary work. Sedentary work involves lifting no more than 10 
pounds at a time and occasionally lifting or carrying articles like 
docket files, ledgers, and small tools. Although a sedentary job is 
defined as one which involves sitting, a certain amount of walking and 
standing is often necessary in carrying out job duties. Jobs are 
sedentary if walking and standing are required occasionally and other 
sedentary criteria are met.
    (b) Light work. Light work involves lifting no more than 20 pounds 
at a time with frequent lifting or carrying of objects weighing up to 10 
pounds. Even though the weight lifted may be

[[Page 369]]

very little, a job is in this category when it requires a good deal of 
walking or standing, or when it involves sitting most of the time with 
some pushing and pulling of arm or leg controls. To be considered 
capable of performing a full or wide range of light work, you must have 
the ability to do substantially all of these activities. If someone can 
do light work, we determine that he or she can also do sedentary work, 
unless there are additional limiting factors such as loss of fine 
dexterity or inability to sit for long periods of time.
    (c) Medium work. Medium work involves lifting no more than 50 pounds 
at a time with frequent lifting or carrying of objects weighing up to 25 
pounds. If someone can do medium work, we determine that he or she can 
also do sedentary and light work.
    (d) Heavy work. Heavy work involves lifting no more than 100 pounds 
at a time with frequent lifting or carrying of objects weighing up to 50 
pounds. If someone can do heavy work, we determine that he or she can 
also do medium, light, and sedentary work.
    (e) Very heavy work. Very heavy work involves lifting objects 
weighing more than 100 pounds at a time with frequent lifting or 
carrying of objects weighing 50 pounds or more. If someone can do very 
heavy work, we determine that he or she can also do heavy, medium, light 
and sedentary work.



Sec. 404.1568  Skill requirements.

    In order to evaluate your skills and to help determine the existence 
in the national economy of work you are able to do, occupations are 
classified as unskilled, semi-skilled, and skilled. In classifying these 
occupations, we use materials published by the Department of Labor. When 
we make disability determinations under this subpart, we use the 
following definitions:
    (a) Unskilled work. Unskilled work is work which needs little or no 
judgment to do simple duties that can be learned on the job in a short 
period of time. The job may or may not require considerable strength. 
For example, we consider jobs unskilled if the primary work duties are 
handling, feeding and offbearing (that is, placing or removing materials 
from machines which are automatic or operated by others), or machine 
tending, and a person can usually learn to do the job in 30 days, and 
little specific vocational preparation and judgment are needed. A person 
does not gain work skills by doing unskilled jobs.
    (b) Semi-skilled work. Semi-skilled work is work which needs some 
skills but does not require doing the more complex work duties. Semi-
skilled jobs may require alertness and close attention to watching 
machine processes; or inspecting, testing or otherwise looking for 
irregularities; or tending or guarding equipment, property, materials, 
or persons against loss, damage or injury; or other types of activities 
which are similarly less complex than skilled work, but more complex 
than unskilled work. A job may be classified as semi-skilled where 
coordination and dexterity are necessary, as when hands or feet must be 
moved quickly to do repetitive tasks.
    (c) Skilled work. Skilled work requires qualifications in which a 
person uses judgment to determine the machine and manual operations to 
be performed in order to obtain the proper form, quality, or quantity of 
material to be produced. Skilled work may require laying out work, 
estimating quality, determining the suitability and needed quantities of 
materials, making precise measurements, reading blueprints or other 
specifications, or making necessary computations or mechanical 
adjustments to control or regulate the work. Other skilled jobs may 
require dealing with people, facts, or figures or abstract ideas at a 
high level of complexity.
    (d) Skills that can be used in other work (transferability)--(1) 
What we mean by transferable skills. We consider you to have skills that 
can be used in other jobs, when the skilled or semi-skilled work 
activities you did in past work can be used to meet the requirements of 
skilled or semi-skilled work activities of other jobs or kinds of work. 
This depends largely on the similarity of occupationally significant 
work activities among different jobs.
    (2) How we determine skills that can be transferred to other jobs. 
Transferability is most probable and meaningful among jobs in which--

[[Page 370]]

    (i) The same or a lesser degree of skill is required;
    (ii) The same or similar tools and machines are used; and
    (iii) The same or similar raw materials, products, processes, or 
services are involved.
    (3) Degrees of transferability. There are degrees of transferability 
of skills ranging from very close similarities to remote and incidental 
similarities among jobs. A complete similarity of all three factors is 
not necessary for transferability. However, when skills are so 
specialized or have been acquired in such an isolated vocational setting 
(like many jobs in mining, agriculture, or fishing) that they are not 
readily usable in other industries, jobs, and work settings, we consider 
that they are not transferable.



Sec. 404.1569  Listing of Medical-Vocational Guidelines in appendix 2.

    The Dictionary of Occupational Titles includes information about 
jobs (classified by their exertional and skill requirements) that exist 
in the national economy. Appendix 2 provides rules using this data 
reflecting major functional and vocational patterns. We apply these 
rules in cases where a person is not doing substantial gainful activity 
and is prevented by a severe medically determinable impairment from 
doing vocationally relevant past work. The rules in appendix 2 do not 
cover all possible variations of factors. Also, as we explain in 
Sec. 200.00 of appendix 2, we do not apply these rules if one of the 
findings of fact about the person's vocational factors and residual 
functional capacity is not the same as the corresponding criterion of a 
rule. In these instances, we give full consideration to all relevant 
facts in accordance with the definitions and discussions under 
vocational considerations. However, if the findings of fact made about 
all factors are the same as the rule, we use that rule to decide whether 
a person is disabled.



Sec. 404.1569a  Exertional and nonexertional limitations.

    (a) General. Your impairment(s) and related symptoms, such as pain, 
may cause limitations of function or restrictions which limit your 
ability to meet certain demands of jobs. These limitations may be 
exertional, nonexertional, or a combination of both. Limitations are 
classified as exertional if they affect your ability to meet the 
strength demands of jobs. The classification of a limitation as 
exertional is related to the United States Department of Labor's 
classification of jobs by various exertional levels (sedentary, light, 
medium, heavy, and very heavy) in terms of the strength demands for 
sitting, standing, walking, lifting, carrying, pushing, and pulling. 
Sections 404.1567 and 404.1569 explain how we use the classification of 
jobs by exertional levels (strength demands) which is contained in the 
Dictionary of Occupational Titles published by the Department of Labor, 
to determine the exertional requirements of work which exists in the 
national economy. Limitations or restrictions which affect your ability 
to meet the demands of jobs other than the strength demands, that is, 
demands other than sitting, standing, walking, lifting, carrying, 
pushing or pulling, are considered nonexertional. Sections 404.1520(f) 
and 404.1594(f)(8) explain that if you can no longer do your past 
relevant work because of a severe medically determinable impairment(s), 
we must determine whether your impairment(s), when considered along with 
your age, education, and work experience, prevents you from doing any 
other work which exists in the national economy in order to decide 
whether you are disabled (Sec. 404.1520(f)) or continue to be disabled 
(Sec. 404.1594(f)(8)). Paragraphs (b), (c), and (d) of this section 
explain how we apply the medical-vocational guidelines in appendix 2 of 
this subpart in making this determination, depending on whether the 
limitations or restrictions imposed by your impairment(s) and related 
symptoms, such as pain, are exertional, nonexertional, or a combination 
of both.
    (b) Exertional limitations. When the limitations and restrictions 
imposed by your impairment(s) and related symptoms, such as pain, affect 
only your ability to meet the strength demands of jobs (sitting, 
standing, walking, lifting, carrying, pushing, and pulling), we consider 
that you have only exertional

[[Page 371]]

limitations. When your impairment(s) and related symptoms only impose 
exertional limitations and your specific vocational profile is listed in 
a rule contained in appendix 2 of this subpart, we will directly apply 
that rule to decide whether you are disabled.
    (c) Nonexertional limitations. (1) When the limitations and 
restrictions imposed by your impairment(s) and related symptoms, such as 
pain, affect only your ability to meet the demands of jobs other than 
the strength demands, we consider that you have only nonexertional 
limitations or restrictions. Some examples of nonexertional limitations 
or restrictions include the following:
    (i) You have difficulty functioning because you are nervous, 
anxious, or depressed;
    (ii) You have difficulty maintaining attention or concentrating;
    (iii) You have difficulty understanding or remembering detailed 
instructions;
    (iv) You have difficulty in seeing or hearing;
    (v) You have difficulty tolerating some physical feature(s) of 
certain work settings, e.g., you cannot tolerate dust or fumes; or
    (vi) You have difficulty performing the manipulative or postural 
functions of some work such as reaching, handling, stooping, climbing, 
crawling, or crouching.
    (2) If your impairment(s) and related symptoms, such as pain, only 
affect your ability to perform the nonexertional aspects of work-related 
activities, the rules in appendix 2 do not direct factual conclusions of 
disabled or not disabled. The determination as to whether disability 
exists will be based on the principles in the appropriate sections of 
the regulations, giving consideration to the rules for specific case 
situations in appendix 2.
    (d) Combined exertional and nonexertional limitations. When the 
limitations and restrictions imposed by your impairment(s) and related 
symptoms, such as pain, affect your ability to meet both the strength 
and demands of jobs other than the strength demands, we consider that 
you have a combination of exertional and nonexertional limitations or 
restrictions. If your impairment(s) and related symptoms, such as pain, 
affect your ability to meet both the strength and demands of jobs other 
than the strength demands, we will not directly apply the rules in 
appendix 2 unless there is a rule that directs a conclusion that you are 
disabled based upon your strength limitations; otherwise the rules 
provide a framework to guide our decision.

[56 FR 57943, Nov, 14, 1991]

                      Substantial Gainful Activity



Sec. 404.1571  General.

    The work that you have done during any period in which you believe 
you are disabled may show that you are able to do work at the 
substantial gainful activity level. If you are able to engage in 
substantial gainful activity, we will find that you are not disabled. 
(We explain the rules for persons who are statutorily blind in 
Sec. 404.1584.) Even if the work you have done was not substantial 
gainful activity, it may show that you are able to do more work than you 
actually did. We will consider all of the medical and vocational 
evidence in your file to decide whether or not you have the ability to 
engage in substantial gainful activity.



Sec. 404.1572  What we mean by substantial gainful activity.

    Substantial gainful activity is work activity that is both 
substantial and gainful:
    (a) Substantial work activity. Substantial work activity is work 
activity that involves doing significant physical or mental activities. 
Your work may be substantial even if it is done on a part-time basis or 
if you do less, get paid less, or have less responsibility than when you 
worked before.
    (b) Gainful work activity. Gainful work activity is work activity 
that you do for pay or profit. Work activity is gainful if it is the 
kind of work usually done for pay or profit, whether or not a profit is 
realized.
    (c) Some other activities. Generally, we do not consider activities 
like taking care of yourself, household tasks, hobbies, therapy, school 
attendance, club

[[Page 372]]

activities, or social programs to be substantial gainful activity.



Sec. 404.1573  General information about work activity.

    (a) The nature of your work. If your duties require use of your 
experience, skills, supervision and responsibilities, or contribute 
substantially to the operation of a business, this tends to show that 
you have the ability to work at the substantial gainful activity level.
    (b) How well you perform. We consider how well you do your work when 
we determine whether or not you are doing substantial gainful activity. 
If you do your work satisfactorily, this may show that you are working 
at the substantial gainful activity level. If you are unable, because of 
your impairments, to do ordinary or simple tasks satisfactorily without 
more supervision or assistance than is usually given other people doing 
similar work, this may show that you are not working at the substantial 
gainful activity level. If you are doing work that involves minimal 
duties that make little or no demands on you and that are of little or 
no use to your employer, or to the operation of a business if you are 
self-employed, this does not show that you are working at the 
substantial gainful activity level.
    (c) If your work is done under special conditions. Even though the 
work you are doing takes into account your impairment, such as work done 
in a sheltered workshop or as a patient in a hospital, it may still show 
that you have the necessary skills and ability to work at the 
substantial gainful activity level.
    (d) If you are self-employed. Supervisory, managerial, advisory or 
other significant personal services that you perform as a self-employed 
individual may show that you are able to do substantial gainful 
activity.
    (e) Time spent in work. While the time you spend in work is 
important, we will not decide whether or not you are doing substantial 
gainful activity only on that basis. We will still evaluate the work to 
decide whether it is substantial and gainful regardless of whether you 
spend more time or less time at the job than workers who are not 
impaired and who are doing similar work as a regular means of their 
livelihood.



Sec. 404.1574  Evaluation guides if you are an employee.

    (a) General. We use several guides to decide whether the work you 
have done shows that you are able to do substantial gainful activity.
    (1) Your earnings may show you have done substantial gainful 
activity. The amount of your earnings from work you have done may show 
that you have engaged in substantial gainful activity. Generally, if you 
worked for substantial earnings, this will show that you are able to do 
substantial gainful activity. On the other hand, the fact that your 
earnings are not substantial will not necessarily show that you are not 
able to do substantial gainful activity. We will generally consider work 
that you are forced to stop after a short time because of your 
impairment as an unsuccessful work attempt and your earnings from that 
work will not show that you are able to do substantial gainful activity.
    (2) We consider only the amounts you earn. We do not consider any 
income not directly related to your productivity when we decide whether 
you have done substantial gainful activity. If your earnings are being 
subsidized, the amount of the subsidy is not counted when we determine 
whether or not your work is substantial gainful activity. Thus, where 
work is done under special conditions, we only consider the part of your 
pay which you actually earn. For example, where a handicapped person 
does simple tasks under close and continuous supervision, we would not 
determine that the person worked at the substantial gainful activity 
level only on the basis of the amount of pay. An employer may set a 
specific amount as a subsidy after figuring the reasonable value of the 
employee's services. If your work is subsidized and your employer does 
not set the amount of the subsidy or does not adequately explain how the 
subsidy was figured, we will investigate to see how much your work is 
worth.
    (3) If you are working in a sheltered or special environment. If you 
are working in a sheltered workshop, you may or may not be earning the 
amounts you

[[Page 373]]

are being paid. The fact that the sheltered workshop or similar facility 
is operating at a loss or is receiving some charitable contributions or 
governmental aid does not establish that you are not earning all you are 
being paid. Since persons in military service being treated for severe 
impairments usually continue to receive full pay, we evaluate work 
activity in a therapy program or while on limited duty by comparing it 
with similar work in the civilian work force or on the basis of 
reasonable worth of the work, rather than on the actual amount of the 
earnings.
    (b) Earnings guidelines. (1) General. If you are an employee, we 
first consider the criteria in paragraph (a) of this section and 
Sec. 404.1576, and then the guides in paragraphs (b) (2), (3), (4), (5), 
and (6) of this section.
    (2) Earnings that will ordinarily show that you have engaged in 
substantial gainful activity. We will consider that your earnings from 
your work activities as an employee show that you have engaged in 
substantial gainful activity if--
    (i) Your earnings averaged more than $200 a month in calendar years 
prior to 1976;
    (ii) Your earnings averaged more than $230 a month in calendar year 
1976;
    (iii) Your earnings averaged more than $240 a month in calendar year 
1977;
    (iv) Your earnings averaged more than $260 a month in calendar year 
1978;
    (v) Your earnings averaged more than $280 a month in calendar year 
1979;
    (vi) Your earnings averaged more than $300 a month in calendar years 
after 1979 and before 1990; or
    (vii) Your earnings averaged more than $500 a month in calendar 
years after 1989.
    (3) Earnings that will ordinarily show that you have not engaged in 
substantial gainful activity. We will generally consider that the 
earnings from your work as an employee will show that you have not 
engaged in substantial gainful activity if--
    (i) Your earnings averaged less than $130 a month in calendar years 
before 1976;
    (ii) Your earnings averaged less than $150 a month in calendar year 
1976;
    (iii) Your earnings averaged less than $160 a month in calendar year 
1977;
    (iv) Your earnings averaged less than $170 a month in calendar year 
1978;
    (v) Your earnings averaged less than $180 a month in calendar year 
1979;
    (vi) Your earnings averaged less than $190 a month in calendar years 
after 1979 and before 1990; or
    (vii) Your earnings averaged less than $300 a month in calendar 
years after 1989.
    (4) If you work in a sheltered workshop. If you are working in a 
sheltered workshop or a comparable facility especially set up for 
severely impaired persons, your earnings and activities will ordinarily 
establish that you have not done substantial gainful activity if--
    (i) Your average earnings are not greater than $200 a month in 
calendar years prior to 1976;
    (ii) Your average earnings are not greater than $230 a month in 
calendar year 1976;
    (iii) Your average earnings are not greater than $240 a month in 
calendar year 1977;
    (iv) Your average earnings are not greater than $260 a month in 
calendar year 1978;
    (v) Your average earnings are not greater than $280 a month in 
calendar year 1979;
    (vi) Your average earnings are not greater than $300 a month in 
calendar years after 1979 and before 1990; or
    (vii) Your average earnings are not greater than $500 a month in 
calendar years after 1989.
    (5) If there is evidence showing that you may have done substantial 
gainful activity. If there is evidence showing that you may have done 
substantial gainful activity, we will apply the criteria in paragraph 
(b)(6) of this section regarding comparability and value of services.
    (6) Earnings that are not high or low enough to show whether you 
engaged in substantial gainful activity. If your earnings, on the 
average, are between the amounts shown in paragraphs (b)(2) and (3) of 
this section, we will generally consider other information in addition 
to your earnings, such as whether--

[[Page 374]]

    (i) Your work is comparable to that of unimpaired people in your 
community who are doing the same or similar occupations as their means 
of livelihood, taking into account the time, energy, skill, and 
responsibility involved in the work, or
    (ii) Your work, although significantly less than that done by 
unimpaired people, is clearly worth the amounts shown in paragraph 
(b)(2) of this section, according to pay scales in your community.

[46 FR 4869, Jan. 19, 1981, as amended at 48 FR 21936, May 16, 1983; 49 
FR 22272, May 29, 1984; 54 FR 53605, Dec. 29, 1989]



Sec. 404.1575  Evaluation guides if you are self-employed.

    (a) If you are a self-employed person. We will consider your 
activities and their value to your business to decide whether you have 
engaged in substantial gainful activity if you are self-employed. We 
will not consider your income alone since the amount of income you 
actually receive may depend upon a number of different factors like 
capital investment, profit sharing agreements, etc. We will generally 
consider work that you are forced to stop after a short time because of 
your impairment as an unsuccessful work attempt and your income from 
that work will not show that you are able to do substantial gainful 
activity. We will evaluate your work activity on the value to the 
business of your services regardless of whether you receive an immediate 
income for your services. We consider that you have engaged in 
substantial gainful activity if--
    (1) Your work activity, in terms of factors such as hours, skills, 
energy output, efficiency, duties, and responsibilities, is comparable 
to that of unimpaired individuals in your community who are in the same 
or similar businesses as their means of livelihood;
    (2) Your work activity, although not comparable to that of 
unimpaired individuals, is clearly worth the amount shown in 
Sec. 404.1574(b)(2) when considered in terms of its value to the 
business, or when compared to the salary that an owner would pay to an 
employee to do the work you are doing; or
    (3) You render services that are significant to the operation of the 
business and receive a substantial income from the business.
    (b) What we mean by significant services. (1) If you are not a farm 
landlord and you operate a business entirely by yourself, any services 
that you render are significant to the business. If your business 
involves the services of more than one person, we will consider you to 
be rendering significant services if you contribute more than half the 
total time required for the management of the business, or you render 
management services for more than 45 hours a month regardless of the 
total management time required by the business.
    (2) If you are a farm landlord, that is, you rent farm land to 
another, we will consider you to be rendering significant services if 
you materially particpate in the production or the management of the 
production of the things raised on the rented farm. (See Sec. 404.1082 
of this chapter for an explanation of material participation.) If you 
were given social security earnings credits because you materially 
participated in the activities of the farm and you continue these same 
activities, we will consider you to be rendering significant services.
    (c) What we mean by substantial income. After your normal business 
expenses are deducted from your gross income to determine net income, we 
will deduct the reasonable value of any unpaid help, any soil bank 
payments that were included as farm income, and impairment-related work 
expenses described in Sec. 404.1576 that have not been deducted in 
determining your net earnings from self-employment. We will consider the 
resulting amount of income from the business to be substantial if--
    (1) It averages more than the amounts described in 
Sec. 404.1574(b)(2); or
    (2) It averages less than the amounts described in 
Sec. 404.1574(b)(2) but the livelihood which you get from the business 
is either comparable to what it was before you became severely impaired 
or is comparable to that of unimpaired

[[Page 375]]

self-employed persons in your community who are in the same or similar 
business as their means of livelihood.

[46 FR 4870, Jan. 19, 1981, as amended at 48 FR 21936, May 16, 1983; 49 
FR 22272, May 29, 1984]



Sec. 404.1576  Impairment-related work expenses.

    (a) General. When we figure your earnings in deciding if you have 
done substantial gainful activity, we will subtract the reasonable costs 
to you of certain items and services which, because of your 
impairment(s), you need and use to enable you to work. The costs are 
deductible even though you also need or use the items and services to 
carry out daily living functions unrelated to your work. Paragraph (b) 
of this section explains the conditions for deducting work expenses. 
Paragraph (c) of this section describes the expenses we will deduct. 
Paragraph (d) of this section explains when expenses may be deducted. 
Paragraph (e) of this section describes how expenses may be allocated. 
Paragraph (f) of this section explains the limitations on deducting 
expenses. Paragraph (g) of this section explains our verification 
procedures.
    (b) Conditions for deducting impairment-related work expenses. We 
will deduct impairment-related work expenses if--
    (1) You are otherwise disabled as defined in Secs. 404.1505, 
404.1577 and 404.1581-404.1583;
    (2) The severity of your impairment(s) requires you to purchase (or 
rent) certain items and services in order to work;
    (3) You pay the cost of the item or service. No deduction will be 
allowed to the extent that payment has been or will be made by another 
source. No deduction will be allowed to the extent that you have been, 
could be, or will be reimbursed for such cost by any other source (such 
as through a private insurance plan, Medicare or Medicaid, or other plan 
or agency). For example, if you purchase crutches for $80 but you were, 
could be, or will be reimbursed $64 by some agency, plan, or program, we 
will deduct only $16;
    (4) You pay for the item or service in a month you are working (in 
accordance with paragraph (d) of this section); and
    (5) Your payment is in cash (including checks or other forms of 
money). Payment in kind is not deductible.
    (c) What expenses may be deducted--(1) Payments for attendant care 
services. (i) If because of your impairment(s) you need assistance in 
traveling to and from work, or while at work you need assistance with 
personal functions (e.g., eating, toileting) or with work-related 
functions (e.g., reading, communicating), the payments you make for 
those services may be deducted.
    (ii) If because of your impairment(s) you need assistance with 
personal functions (e.g., dressing, administering medications) at home 
in preparation for going to and assistance in returning from work, the 
payments you make for those services may be deducted.
    (iii)(A) We will deduct payments you make to a family member for 
attendant care services only if such person, in order to perform the 
services, suffers an economic loss by terminating his or her employment 
or by reducing the number of hours he or she worked.
    (B) We consider a family member to be anyone who is related to you 
by blood, marriage or adoption, whether or not that person lives with 
you.
    (iv) If only part of your payment to a person is for services that 
come under the provisions of paragraph (c)(1) of this section, we will 
only deduct that part of the payment which is attributable to those 
services. For example, an attendant gets you ready for work and helps 
you in returning from work, which takes about 2 hours a day. The rest of 
his or her 8 hour day is spent cleaning your house and doing your 
laundry, etc. We would only deduct one-fourth of the attendant's daily 
wages as an impairment-related work expense.
    (2) Payments for medical devices. If your impairment(s) requires 
that you utilize medical devices in order to work, the payments you make 
for those devices may be deducted. As used in this subparagraph, medical 
devices include durable medical equipment which can withstand repeated 
use, is customarily used for medical purposes, and is generally not 
useful to a person in the absence of an illness or injury.

[[Page 376]]

Examples of durable medical equipment are wheelchairs, hemodialysis 
equipment, canes, crutches, inhalators and pacemakers.
    (3) Payments for prosthetic devices. If your impairment(s) requires 
that you utilize a prosthetic device in order to work, the payments you 
make for that device may be deducted. A prosthetic device is that which 
replaces an internal body organ or external body part. Examples of 
prosthetic devices are artificial replacements of arms, legs and other 
parts of the body.
    (4) Payments for equipment. (i) Work-related equipment. If your 
impairment(s) requires that you utilize special equipment in order to do 
your job, the payments you make for that equipment may be deducted. 
Examples of work-related equipment are one-hand typewriters, vision 
aids, sensory aids for the blind, telecommunication devices for the deaf 
and tools specifically designed to accommodate a person's impairment(s).
    (ii) Residential modifications. If your impairment(s) requires that 
you make modifications to your residence, the location of your place of 
work will determine if the cost of these modifications will be deducted. 
If you are employed away from home, only the cost of changes made 
outside of your home to permit you to get to your means of 
transportation (e.g., the installation of an exterior ramp for a 
wheelchair confined person or special exterior railings or pathways for 
someone who requires crutches) will be deducted. Costs relating to 
modifications of the inside of your home will not be deducted. If you 
work at home, the costs of modifying the inside of your home in order to 
create a working space to accommodate your impairment(s) will be 
deducted to the extent that the changes pertain specifically to the 
space in which you work. Examples of such changes are the enlargement of 
a doorway leading into the workspace or modification of the workspace to 
accommodate problems in dexterity. However, if you are self-employed at 
home, any cost deducted as a business expense cannot be deducted as an 
impairment-related work expense.
    (iii) Nonmedical appliances and equipment. Expenses for appliances 
and equipment which you do not ordinarily use for medical purposes are 
generally not deductible. Examples of these items are portable room 
heaters, air conditioners, humidifiers, dehumidifiers, and electric air 
cleaners. However, expenses for such items may be deductible when 
unusual circumstances clearly establish an impairment-related and 
medically verified need for such an item because it is essential for the 
control of your disabling condition, thus enabling you to work. To be 
considered essential, the item must be of such a nature that if it were 
not available to you there would be an immediate adverse impact on your 
ability to function in your work activity. In this situation, the 
expense is deductible whether the item is used at home or in the working 
place. An example would be the need for an electric air cleaner by an 
individual with severe respiratory disease who cannot function in a non-
purified air environment. An item such as an exercycle is not deductible 
if used for general physical fitness. If it is prescribed and used as 
necessary treatment of your impairment and necessary to enable you to 
work, we will deduct payments you make toward its cost.
    (5) Payments for drugs and medical services. (i) If you must use 
drugs or medical services (including diagnostic procedures) to control 
your impairment(s) the payments you make for them may be deducted. The 
drugs or services must be prescribed (or utilized) to reduce or 
eliminate symptoms of your impairment(s) or to slow down its 
progression. The diagnostic procedures must be performed to ascertain 
how the impairment(s) is progressing or to determine what type of 
treatment should be provided for the impairment(s).
    (ii) Examples of deductible drugs and medical services are 
anticonvulsant drugs to control epilepsy or anticonvulsant blood level 
monitoring; antidepressant medication for mental disorders; medication 
used to allay the side effects of certain treatments; radiation 
treatment or chemotherapy for cancer patients; corrective surgery for 
spinal disorders; electroencephalograms and brain scans

[[Page 377]]

related to a disabling epileptic condition; tests to determine the 
efficacy of medication on a diabetic condition; and immunosuppressive 
medications that kidney transplant patients regularly take to protect 
against graft rejection.
    (iii) We will only deduct the costs of drugs or services that are 
directly related to your impairment(s). Examples of non-deductible items 
are routine annual physical examinations, optician services (unrelated 
to a disabling visual impairment) and dental examinations.
    (6) Payments for similar items and services--(i) General. If you are 
required to utilize items and services not specified in paragraphs (c) 
(1) through (5) of this section but which are directly related to your 
impairment(s) and which you need to work, their costs are deductible. 
Examples of such items and services are medical supplies and services 
not discussed above, the purchase and maintenance of a dog guide which 
you need to work, and transportation.
    (ii) Medical supplies and services not described above. We will 
deduct payments you make for expendable medical supplies, such as 
incontinence pads, catheters, bandages, elastic stockings, face masks, 
irrigating kits, and disposable sheets and bags. We will also deduct 
payments you make for physical therapy which you require because of your 
impairment(s) and which you need in order to work.
    (iii) Payments for transportation costs. We will deduct 
transportation costs in these situations:
    (A) Your impairment(s) requires that in order to get to work you 
need a vehicle that has structural or operational modifications. The 
modifications must be critical to your operation or use of the vehicle 
and directly related to your impairment(s). We will deduct the costs of 
the modifications, but not the cost of the vehicle. We will also deduct 
a mileage allowance for the trip to and from work. The allowance will be 
based on data compiled by the Federal Highway Administration relating to 
vehicle operating costs.
    (B) Your impairment(s) requires you to use driver assistance, 
taxicabs or other hired vehicles in order to work. We will deduct 
amounts paid to the driver and, if your own vehicle is used, we will 
also deduct a mileage allowance, as provided in paragraph (c)(6)(iii)(A) 
of this section, for the trip to and from work.
    (C) Your impairment(s) prevents your taking available public 
transportation to and from work and you must drive your (unmodified) 
vehicle to work. If we can verify through your physician or other 
sources that the need to drive is caused by your impairment(s) (and not 
due to the unavailability of public transportation), we will deduct a 
mileage allowance, as provided in paragraph (c)(6)(iii)(A) of this 
section, for the trip to and from work.
    (7) Payments for installing, maintaining, and repairing deductible 
items. If the device, equipment, appliance, etc., that you utilize 
qualifies as a deductible item as described in paragraphs (c) (2), (3), 
(4) and (6) of this section, the costs directly related to installing, 
maintaining and repairing these items are also deductible. (The costs 
which are associated with modifications to a vehicle are deductible. 
Except for a mileage allowance, as provided for in paragraph (c)(6)(iii) 
of this section, the costs which are associated with the vehicle itself 
are not deductible.)
    (d) When expenses may be deducted. (1) Effective date. To be 
deductible an expense must be incurred after November 30, 1980. An 
expense may be considered incurred after that date if it is paid 
thereafter even though pursuant to a contract or other arrangement 
entered into before December 1, 1980.
    (2) Payments for services. A payment you make for services may be 
deducted if the services are received while you are working and the 
payment is made in a month you are working. We consider you to be 
working even though you must leave work temporarily to receive the 
services.
    (3) Payments for items. A payment you make toward the cost of a 
deductible item (regardless of when it is acquired) may be deducted if 
payment is made in a month you are working. See paragraph (e)(4) of this 
section when purchases are made in anticipation of work.
    (e) How expenses are allocated. (1) Recurring expenses. You may pay 
for services on a regular periodic basis, or you

[[Page 378]]

may purchase an item on credit and pay for it in regular periodic 
installments or you may rent an item. If so, each payment you make for 
the services and each payment you make toward the purchase or rental 
(including interest) is deductible in the month it is made.
    Example.  B starts work in October 1981 at which time she purchases 
a medical device at a cost of $4,800 plus interest charges of $720. Her 
monthly payments begin in October. She earns and receives $400 a month. 
The term of the installment contract is 48 months. No downpayment is 
made. The monthly allowable deduction for the item would be $115 ($5520 
divided by 48) for each month of work during the 48 months.
    (2) Nonrecurring expenses. Part or all of your expenses may not be 
recurring. For example, you may make a one-time payment in full for an 
item or service or make a downpayment. If you are working when you make 
the payment we will either deduct the entire amount in the month you pay 
it or allocate the amount over a 12 consecutive month period beginning 
with the month of payment, whichever you select.
    Example  A begins working in October 1981 and earns $525 a month. In 
the same month he purchases and pays for a deductible item at a cost of 
$250. In this situation we could allow a $250 deduction for October 
1981, reducing A's earnings below the SGA level for that month.
    If A's earnings had been $15 above the SGA earnings amount, A 
probably would select the option of projecting the $250 payment over the 
12-month period, October 1981-September 1982, giving A an allowable 
deduction of $20.83 a month for each month of work during that period. 
This deduction would reduce A's earnings below the SGA level for 12 
months.
    (3) Allocating downpayments. If you make a downpayment we will, if 
you choose, make a separate calculation for the downpayment in order to 
provide for uniform monthly deductions. In these situations we will 
determine the total payment that you will make over a 12 consecutive 
month period beginning with the month of the downpayment and allocate 
that amount over the 12 months. Beginning with the 13th month, the 
regular monthly payment will be deductible. This allocation process will 
be for a shorter period if your regular monthly payments will extend 
over a period of less than 12 months.
    Example 1.  C starts working in October 1981, at which time he 
purchases special equipment at a cost of $4,800, paying $1,200 down. The 
balance of $3,600, plus interest of $540, is to be repaid in 36 
installments of $115 a month beginning November 1981. C earns $500 a 
month. He chooses to have the downpayment allocated. In this situation 
we would allow a deduction of $205.42 a month for each month of work 
during the period October 1981 through September 1982. After September 
1982, the deduction amount would be the regular monthly payment of $115 
for each month of work during the remaining installment period.

                                                                        
                                                                        
                                                                        
Explanation:                                                            
  Downpayment in 10/81..........................      $1,200            
  Monthly payments 11/81 through 09/82..........       1,265            
                                                 ------------           
                                                   12) 2,465    =$205.42
                                                                        

    Example 2.  D, while working, buys a deductible item in July 1981, 
paying $1,450 down. However, his first monthly payment of $125 is not 
due until September 1981. D chooses to have the downpayment allocated. 
In this situation we would allow a deduction of $225 a month for each 
month of work during the period July 1981 through June 1982. After June 
1982, the deduction amount would be the regular monthly payment of $125 
for each month of work.

Explanation:                                                            
  Downpayment in 07/81..........................      $1,450            
  Monthly payments 09/81 through 06/82..........       1,250            
                                                 ------------           
                                                   12) 2,700       =$225
                                                                        

    (4) Payments made in anticipation of work. A payment toward the cost 
of a deductible item that you made in any of the 11 months preceding the 
month you started working will be taken into account in determining your 
impairment-related work expenses. When an item is paid for in full 
during the 11 months preceding the month you started working the payment 
will be allocated over the 12-consecutive month period beginning with 
the month of the payment. However, the only portion of the payment which 
may be deductible is the portion allocated to the month work begins and 
the following months. For example, if an item is purchased 3 months 
before the month work began and is paid for with a one-time payment of 
$600, the deductible amount

[[Page 379]]

would be $450 ($600 divided by 12, multiplied by 9). Installment 
payments (including a downpayment) that you made for a particular item 
during the 11 months preceding the month you started working will be 
totaled and considered to have been made in the month of your first 
payment for that item within this 11 month period. The sum of these 
payments will be allocated over the 12-consecutive month period 
beginning with the month of your first payment (but never earlier than 
11 months before the month work began). However, the only portion of the 
total which may be deductible is the portion allocated to the month work 
begins and the following months. For example, if an item is purchased 3 
months before the month work began and is paid for in 3 monthly 
installments of $200 each, the total payment of $600 will be considered 
to have been made in the month of the first payment, that is, 3 months 
before the month work began. The deductible amount would be $450 ($600 
divided by 12, multiplied by 9). The amount, as determined by these 
formulas, will then be considered to have been paid in the first month 
of work. We will deduct either this entire amount in the first month of 
work or allocate it over a 12-consecutive month period beginning with 
the first month of work, whichever you select. In the above examples, 
the individual would have the choice of having the entire $450 deducted 
in the first month of work or of having $37.50 a month ($450 divided by 
12) deducted for each month that he works over a 12-consecutive month 
period, beginning with the first month of work. To be deductible the 
payments must be for durable items such as medical devices, prostheses, 
work-related equipment, residential modifications, nonmedical appliances 
and vehicle modifications. Payments for services and expendable items 
such as drugs, oxygen, diagnostic procedures, medical supplies and 
vehicle operating costs are not deductible for purposes of this 
paragraph.
    (f) Limits on deductions. (1) We will deduct the actual amounts you 
pay towards your impairment-related work expenses unless the amounts are 
unreasonable. With respect to durable medical equipment, prosthetic 
devices, medical services, and similar medically-related items and 
services, we will apply the prevailing charges under Medicare (part B of 
title XVIII, Health Insurance for the Aged and Disabled) to the extent 
that this information is readily available. Where the Medicare guides 
are used, we will consider the amount that you pay to be reasonable if 
it is no more than the prevailing charge for the same item or service 
under the Medicare guidelines. If the amount you actually pay is more 
than the prevailing charge for the same item under the Medicare 
guidelines, we will deduct from your earnings the amount you paid to the 
extent you establish that the amount is consistent with the standard or 
normal charge for the same or similar item or service in your community. 
For items and services that are not listed in the Medicare guidelines, 
and for items and services that are listed in the Medicare guidelines 
but for which such guides cannot be used because the information is not 
readily available, we will consider the amount you pay to be reasonable 
if it does not exceed the standard or normal charge for the same or 
similar item(s) or service(s) in your community.
    (2) Impairment-related work expenses are not deducted in computing 
your earnings for purposes of determining whether your work was 
``services'' as described in Sec. 404.1592(b).
    (3) The decision as to whether you performed substantial gainful 
activity in a case involving impairment-related work expenses for items 
or services necessary for you to work generally will be based upon your 
``earnings'' and not on the value of ``services'' you rendered. (See 
Secs. 404.1574(b)(6) (i) and (ii), and 404.1575(a)). This is not 
necessarily so, however, if you are in a position to control or 
manipulate your earnings.
    (4) The amount of the expenses to be deducted must be determined in 
a uniform manner in both the disability insurance and SSI programs.
    (5) No deduction will be allowed to the extent that any other source 
has paid or will pay for an item or service. No deduction will be 
allowed to the extent that you have been, could be, or will be, 
reimbursed for payments you made. (See paragraph (b)(3) of this 
section.)

[[Page 380]]

    (6) The provisions described in the foregoing paragraphs of this 
section are effective with respect to expenses incurred on and after 
December 1, 1980, although expenses incurred after November 1980 as a 
result of contractual or other arrangements entered into before December 
1980, are deductible. For months before December 1980 we will deduct 
impairment-related work expenses from your earnings only to the extent 
they exceeded the normal work-related expenses you would have had if you 
did not have your impairment(s). We will not deduct expenses, however, 
for those things which you needed even when you were not working.
    (g) Verification. We will verify your need for items or services for 
which deductions are claimed, and the amount of the charges for those 
items or services. You will also be asked to provide proof that you paid 
for the items or services.

[48 FR 21936, May 16, 1983]

            Widows, Widowers, and Surviving Divorced Spouses



Sec. 404.1577  Disability defined for widows, widowers, and surviving divorced spouses for monthly benefits payable for months prior to January 1991.

    For monthly benefits payable for months prior to January 1991, the 
law provides that to be entitled to a widow's or widower's benefit as a 
disabled widow, widower, or surviving divorced spouse, you must have a 
medically determinable physical or mental impairment which can be 
expected to result in death or has lasted or can be expected to last for 
a continuous period of not less than 12 months. The impairment(s) must 
have been of a level of severity to prevent a person from doing any 
gainful activity. To determine whether you were disabled, we consider 
only your physical or mental impairment(s). We do not consider your age, 
education, and work experience. We also do not consider certain felony-
related and prison-related impairments, as explained in Sec. 404.1506. 
(For monthly benefits payable for months after December 1990, see 
Sec. 404.1505(a).)

[57 FR 30120, July 8, 1992]



Sec. 404.1578  How we determine disability for widows, widowers, and surviving divorced spouses for monthly benefits payable for months prior to January 1991.

    (a) For monthly benefits payable for months prior to January 1991, 
we will find that you were disabled and pay you widow's or widower's 
benefits as a widow, widower, or surviving divorced spouse if--
    (1) Your impairment(s) had specific clinical findings that were the 
same as those for any impairment in the Listing of Impairments in 
appendix 1 of this subpart or were medically equivalent to those for any 
impairment shown there;
    (2) Your impairment(s) met the duration requirement.
    (b) However, even if you met the requirements in paragraphs (a) (1) 
and (2) of this section, we will not find you disabled if you were doing 
substantial gainful activity.

[57 FR 30121, July 8, 1992]



Sec. 404.1579  How we will determine whether your disability continues or ends.

    (a) General. (1) The rules for determining whether disability 
continues for widow's or widower's monthly benefits for months after 
December 1990 are discussed in Secs. 404.1594 through 404.1598. The 
rules for determining whether disability continues for monthly benefits 
for months prior to January 1991 are discussed in paragraph (a)(2) of 
this section and paragraphs (b) through (h) of this section.
    (2) If you are entitled to disability benefits as a disabled widow, 
widower, or surviving divorced spouse, and we must decide whether your 
disability continued or ended for monthly benefits for months prior to 
January 1991, there are a number of factors we consider in deciding 
whether your disability continued. We must determine if there has been 
any medical improvement in your impairment(s) and, if so, whether this 
medical improvement is related to your ability to work. If your 
impairment(s) has not so medically improved, we must address whether one 
or more exceptions applies. If medical improvement related to your 
ability to

[[Page 381]]

work has not occurred and no exception applies, your benefits will 
continue. Even where medical improvement related to your ability to work 
has occurred or an exception applies, in most cases (see paragraph (e) 
of this section for exceptions) before we can find that you are no 
longer disabled, we must also show that your impairment(s), as shown by 
current medical evidence, is no longer deemed, under appendix 1 of this 
subpart, sufficient to preclude you from engaging in gainful activity.
    (b) Terms and definitions. There are several terms and definitions 
which are important to know in order to understand how we review your 
claim to determine whether your disability continues.
    (1) Medical improvement. Medical improvement is any decrease in the 
medical severity of your impairment(s) which was present at the time of 
the most recent favorable medical decision that you were disabled or 
continued to be disabled. A determination that there has been a decrease 
in medical severity must be based on changes (improvement) in the 
symptoms, signs and/or laboratory findings (see Sec. 404.1528) 
associated with your impairment(s).
    Example 1:  You were awarded disability benefits due to a herniated 
nucleus pulposus which was determined to equal the level of severity 
contemplated by Listing 1.05.C. At the time of our prior favorable 
decision, you had had a laminectomy. Postoperatively, a myelogram still 
showed evidence of a persistent deficit in your lumbar spine. You had 
pain in your back, and pain and a burning sensation in your right foot 
and leg. There were no muscle weakness or neurological changes and a 
modest decrease in motion in your back and leg. When we reviewed your 
claim your treating physician reported that he had seen you regularly 
every 2 to 3 months for the past 2 years. No further myelograms had been 
done, complaints of pain in the back and right leg continued especially 
on sitting or standing for more than a short period of time. Your doctor 
further reported a moderately decreased range of motion in your back and 
right leg, but again no muscle atrophy or neurological changes were 
reported. Medical improvement has not occurred because there has been no 
decrease in the severity of your back impairment as shown by changes in 
symptoms, signs, or laboratory findings.
    Example 2: You were awarded disability benefits due to rheumatoid 
arthritis of a severity as described in Listing 1.02 of appendix 1 of 
this subpart. At the time, laboratory findings were positive for this 
condition. Your doctor reported persistent swelling and tenderness of 
your fingers and wrists and that you complained of joint pain. Current 
medical evidence shows that while laboratory tests are still positive 
for rheumatoid arthritis, your impairment has responded favorably to 
therapy so that for the last year your fingers and wrists have not been 
significantly swollen or painful. Medical improvement has occurred 
because there has been a decrease in the severity of your impairment as 
documented by the current symptoms and signs reported by your physician. 
Although your impairment is subject to temporary remissions and 
exacerbations the improvement that has occurred has been sustained long 
enough to permit a finding of medical improvement. We would then 
determine if this medical improvement is related to your ability to 
work.
    (2) Determining whether medical improvement is related to your 
ability to work. If medical improvement has occurred and the severity of 
the prior impairment(s) no longer meets or equals the listing section 
which was used in making our most recent favorable decision, we will 
find that the medical improvement was related to your ability to work. 
We make this finding because the criteria in appendix 1 of this subpart 
are related to ability to work because they reflect impairments which 
are considered severe enough to prevent a person from doing any gainful 
work. We must, of course, also establish that, considering all of your 
current impairments not just those which existed at the time of the most 
recent prior favorable medical decision, your condition does not meet or 
equal the requirements of appendix 1 before we could find that your 
disability has ended. If there has been any medical improvement in your 
impairment(s), but it is not related to your ability to do work and none 
of the exceptions applies, your benefits will be continued.
    (3) Determining whether your impairment(s) is deemed, under appendix 
1 of this subpart, sufficient to preclude you from engaging in gainful 
activity. Even where medical improvement related to your ability to work 
has occurred or an exception applies, in most cases before we can find 
that you are no longer disabled, we must also show that your 
impairment(s) is no longer deemed,

[[Page 382]]

under appendix 1 of this subpart, sufficient to preclude you from 
engaging in gainful activity. All current impairments will be 
considered, not just the impairment(s) present at the time of our most 
recent favorable determination. Sections 404.1525, 404.1526, and 
404.1578 set out how we will decide whether your impairment(s) meets or 
equals the requirements of appendix 1 of this subpart.
    (4) Evidence and basis for our decision. Our decisions under this 
section will be made on a neutral basis without any initial inference as 
to the presence or absence of disability being drawn from the fact that 
you have previously been determined to be disabled. We will consider all 
evidence you submit, as well as all evidence we obtain from your 
treating physician(s) and other medical or nonmedical sources. What 
constitutes ``evidence'' and our procedures for obtaining it are set out 
in Secs. 404.1512 through 404.1518. Our determination regarding whether 
your disability continues will be made on the basis of the weight of the 
evidence.
    (5) Point of comparison. For purposes of determining whether medical 
improvement has occurred, we will compare the current severity of that 
impairment(s) which was present at the time of the most recent favorable 
medical decision that you were disabled or continued to be disabled to 
the medical severity of that impairment(s) at that time. If medical 
improvement has occurred, we will determine whether the medical 
improvement is related to your ability to do work based on this 
previously existing impairment(s). The most recent favorable medical 
decision is the latest decision involving a consideration of the medical 
evidence and the issue of whether you were disabled or continued to be 
disabled which became final.
    (c) Determining medical improvement and its relationship to your 
ability to do work. Paragraphs (b) (1) and (2) of this section discuss 
what we mean by medical improvement and how we determine whether medical 
improvement is related to your ability to work.
    (1) Medical improvement. Medical improvement is any decrease in the 
medical severity of impairment(s) present at the time of the most recent 
favorable medical decision that you were disabled or continued to be 
disabled. Whether medical improvement has occurred is determined by a 
comparison of prior and current medical evidence which must show that 
there have been changes (improvement) in the symptoms, signs or 
laboratory findings associated with that impairment(s).
    (2) Determining whether medical improvement is related to ability to 
work. If there is a decrease in medical severity as shown by the signs, 
symptoms and laboratory findings, we then must determine if it is 
related to your ability to do work, as explained in paragraph (b)(2) of 
this section. In determining if the medical improvement that has 
occurred is related to your ability to work, we will assess whether the 
previously existing impairments still meet or equal the level of 
severity contemplated by the same listing section in appendix 1 of this 
subpart which was used in making our most recent favorable decision. 
Appendix 1 of this subpart describes impairments which, if severe 
enough, affect a person's ability to work. If the appendix level of 
severity is met or equaled, the individual is deemed, in the absence of 
evidence of the contrary, to be unable to engage in gainful activity. If 
there has been medical improvement to the degree that the requirement of 
the listing section is no longer met or equaled, then the medical 
improvement is related to your ability to work. Unless an objective 
assessment shows that the listing requirement is no longer met or 
equaled based on actual changes shown by the medical evidence, the 
medical improvement that has occurred will not be considered to be 
related to your ability to work.
    (3) Prior file cannot be located. If the prior file cannot be 
located, we will first determine whether your current impairment(s) is 
deemed, under appendix 1 of this subpart, sufficient to preclude you 
from engaging in gainful activity. (In this way, we will be able to 
determine that your disability continues at the earliest time without 
addressing the issue of reconstructing prior evidence which can be a 
lengthy process.) If so, your benefits will continue unless one of the 
second group of exceptions applies (see paragraph (e) of

[[Page 383]]

this section). If not, we will determine whether an attempt should be 
made to reconstruct those portions of the file that were relevant to our 
most recent favorable medical decision (e.g., medical evidence from 
treating sources and the results of consultative examinations). This 
determination will consider the potential availability of old records in 
light of their age, whether the source of the evidence is still in 
operation, etc.; and whether reconstruction efforts will yield a 
complete record of the basis for the most recent favorable medical 
decision. If relevant parts of the prior record are not reconstructed 
either because it is determined not to attempt reconstruction or because 
such efforts fail, medical improvement cannot be found. The 
documentation of your current impairments will provide a basis for any 
future reviews. If the missing file is later found, it may serve as a 
basis for reopening any decision under this section in accordance with 
the rules in Sec. 404.988.
    (4) Impairment(s) subject to temporary remission. In some cases the 
evidence shows that an individual's impairment is subject to temporary 
remission. In assessing whether medical improvement has occurred in 
persons with this type of impairment, we will be careful to consider the 
longitudinal history of the impairment(s), including the occurrence of 
prior remissions, and prospects for future worsening of the 
impairment(s). Improvement in such impairments that is only temporary 
will not warrant a finding of medical improvement.
    (5) Applicable listing has been revised since the most recent 
favorable medical decision. When determining whether any medical 
improvement is related to your ability to work, we use the same listing 
section in appendix 1 of this subpart which was used to make our prior 
favorable decision. We will use the listing as it appeared at the time 
of the prior decision, even where the requirement(s) of the listing was 
subsequently changed. The current revised listing requirement will be 
used if we determine that you have medically improved and it is 
necessary to determine whether you are now considered unable to engage 
in gainful activity.
    (d) First group of exceptions to medical improvement. The law 
provides for certain limited situations when your disability can be 
found to have ended even though medical improvement has not occurred, if 
your impairment(s) is no longer considered, under appendix 1 of this 
subpart, sufficient to preclude you from engaging in gainful activity. 
These exceptions to medical improvement are intended to provide a way of 
finding that a person is no longer disabled in those limited situations 
where, even though there has been no decrease in severity of the 
impairment(s), evidence shows that the person should no longer be 
considered disabled or never should have been considered disabled. If 
one of these exceptions applies, before we can find you are no longer 
disabled, we must also show that, taking all your current impairment(s) 
into account, not just those that existed at the time of our most recent 
favorable medical decision, your impairment(s) is no longer deemed, 
under appendix 1 of this subpart, sufficient to preclude you from 
engaging in gainful activity. As part of the review process, you will be 
asked about any medical therapy you received or are receiving. Your 
answers and the evidence gathered as a result as well as all other 
evidence, will serve as the basis for the finding that an exception does 
or does not apply.
    (1) Substantial evidence shows that you are the beneficiary of 
advances in medical therapy or technology (related to your ability to 
work). Advances in medical therapy or technology are improvements in 
treatment or rehabilitative methods which have favorably affected the 
severity of your impairment(s). We will apply this exception when 
substantial evidence shows that you have been the beneficiary of 
services which reflect these advances and they have favorably affected 
the severity of your impairment(s). This decision will be based on new 
medical evidence. In many instances, an advanced medical therapy or 
technology will result in a decrease in severity as shown by symptoms, 
signs and laboratory findings which will meet the definition of medical 
improvement. This exception will, therefore, see very limited 
application.

[[Page 384]]

    (2) Substantial evidence shows that based on new or improved 
diagnostic or evaluative techniques your impairment(s) is not as 
disabling as it was considered to be at the time of the most recent 
favorable decision. Changing methodologies and advances in medical and 
other diagnostic or evaluative techniques have given, and will continue 
to give, rise to improved methods for measuring and documenting the 
effect of various impairments on the ability to do work. Where, by such 
new or improved methods, substantial evidence shows that your 
impairment(s) is not as severe as was determined at the time of our most 
recent favorable medical decision, such evidence may serve as a basis 
for finding that you are no longer disabled, if your impairment(s) is no 
longer deemed, under appendix 1 of this subpart, sufficient to preclude 
you from engaging in gainful activity. In order to be used under this 
exception, however, the new or improved techniques must have become 
generally available after the date of our most recent favorable medical 
decision.
    (i) How we will determine which methods are new or improved 
techniques and when they become generally available. New or improved 
diagnostic techniques or evaluations will come to our attention by 
several methods. In reviewing cases, we often become aware of new 
techniques when their results are presented as evidence. Such techniques 
and evaluations are also discussed and acknowledged in medical 
literature by medical professional groups and other governmental 
entities. Through these sources, we develop listings of new techniques 
and when they become generally available. For example, we will consult 
the Health Care Financing Administration for its experience regarding 
when a technique is recognized for payment under Medicare and when they 
began paying for the technique.
    (ii) How you will know which methods are new or improved techniques 
and when they become generally available. We will let you know which 
methods we consider to be new or improved techniques and when they 
become available through two vehicles.
    (A) Some of the future changes in the Listing of Impairments in 
appendix 1 of this subpart will be based on new or improved diagnostic 
or evaluative techniques. Such listing changes will clearly state this 
fact as they are published as Notices of Proposed Rulemaking and the new 
or improved technique will be considered generally available as of the 
date of the final publication of that particular listing in the Federal 
Register.
    (B) A cumulative list since 1970 of new or improved diagnostic 
techniques or evaluations, how they changed the evaluation of the 
applicable impairment and the month and year they became generally 
available, will be published in the Notices section of the Federal 
Register. Included will be any changes in the Listing of Impairments 
published in the Code of Federal Regulations since 1970 which are 
reflective of new or improved techniques. No cases will be processed 
under this exception until this cumulative listing is so published. 
Subsequent changes to the list will be published periodically. The 
period will be determined by the volume of changes needed.
    Example:  The electrocardiographic exercise test has replaced the 
Master's 2-step test as a measurement of heart function since the time 
of your last favorable medical decision. Current evidence could show 
that your condition, which was previously evaluated based on the 
Master's 2-step test, is not now as disabling as was previously thought. 
If, taking all your current impairments into account, you are now able 
to engage in gainful activity, this exception would be used to find that 
you are no longer disabled even if medical improvement has not occurred.
    (3) Substantial evidence demonstrates that any prior disability 
decision was in error. We will apply the exception to medical 
improvement based on error if substantial evidence (which may be 
evidence on the record at the time any prior determination of the 
entitlement to benefits based on disability was made, or newly obtained 
evidence which relates to that determination) demonstrates that a prior 
determination was in error. A prior determination will be found in error 
only if:
    (i) Substantial evidence shows on its face that the decision in 
question should not have been made (e.g., the evidence in your file such 
as pulmonary function study values was misread or an adjudicative 
standard such as a listing in appendix 1 of this subpart was 
misapplied).

[[Page 385]]

    Example:  You were granted benefits when it was determined that your 
epilepsy met Listing 11.02. This listing calls for a finding of major 
motor seizures more frequently than once a month as documented by EEG 
evidence and by a detailed description of a typical seizure pattern. A 
history of either diurnal episodes or nocturnal episodes with residuals 
interfering with daily activities is also required. On review, it is 
found that a history of the frequency of your seizures showed that they 
occurred only once or twice a year. The prior decision would be found to 
be in error, and whether you were still considered to be disabled would 
be based on whether your current impairment(s) meets or equals the 
requirements of appendix 1 of this subpart.
    (ii) At the time of the prior evaluation, required and material 
evidence of the severity of your impairment(s) was missing. That 
evidence becomes available upon review, and substantial evidence 
demonstrates that had such evidence been present at the time of the 
prior determination, disability would not have been found.
    (iii) Substantial evidence which is new evidence which relates to 
the prior determination (of allowance or continuance) refutes the 
conclusions that were based upon the prior evidence (e.g., a tumor 
thought to be malignant was later shown to have actually been benign). 
Substantial evidence must show that had the new evidence (which relates 
to the prior determination) been considered at the time of the prior 
decision, the claim would not have been allowed or continued. A 
substitution of current judgment for that used in the prior favorable 
decision will not be the basis for applying this exception.
    Example:  You were previously granted disability benefits on the 
basis of diabetes mellitus which the prior adjudicator believed was 
equivalent to the level of severity contemplated in the Listing of 
Impairments. The prior record shows that you had ``brittle'' diabetes 
for which you were taking insulin. Your urine was 3+ for sugar, and you 
alleged occasional hypoglycemic attacks caused by exertion. On review, 
symptoms, signs and laboratory findings are unchanged. The current 
adjudicator believes, however, that your impairment does not equal the 
severity contemplated by the listings. Error cannot be found because it 
would represent a substitution of current judgment for that of the prior 
adjudicator that your impairment equaled a listing.
    (iv) The exception for error will not be applied retroactively under 
the conditions set out above unless the conditions for reopening the 
prior decision (see Sec. 404.988) are met.
    (4) You are currently engaging in substantial gainful activity. If 
you are currently engaging in substantial gainful activity before we 
determine whether you are no longer disabled because of your work 
activity, we will consider whether you are entitled to a trial work 
period as set out in Sec. 404.1592. We will find that your disability 
has ended in the month in which you demonstrated your ability to engage 
in substantial gainful activity (following completion of a trial work 
period, where it applies). This exception does not apply in determining 
whether you continue to have a disabling impairment(Sec. 404.1511) for 
purposes of deciding your eligibility for a reentitlement period 
(Sec. 404.1592a).
    (e) Second group of exceptions to medical improvement. In addition 
to the first group of exceptions to medical improvement, the following 
exceptions may result in a determination that you are no longer 
disabled. In these situations the decision will be made without a 
determination that you have medically improved or can engage in gainful 
activity.
    (1) A prior determination or decision was fraudulently obtained. If 
we find that any prior favorable determination or decision was obtained 
by fraud, we may find that you are not disabled. In addition, we may 
reopen your claim under the rules in Sec. 404.988. In determining 
whether a prior favorable determination or decision was fraudulently 
obtained, we will take into account any physical, mental, educational, 
or linguistic limitations (including any lack of facility with the 
English language) which you may have had at the time.
    (2) You do not cooperate with us. If there is a question about 
whether you continue to be disabled and we ask you to give us medical or 
other evidence or to go for a physical or mental examination by a 
certain date, we will find that your disability has ended if you fail, 
without good cause, to do what we ask. Section 404.911 explains the 
factors we consider and how we will determine

[[Page 386]]

generally whether you have good cause for failure to cooperate. In 
addition, Sec. 404.1518 discusses how we determine whether you have good 
cause for failing to attend a consultative examination. The month in 
which your disability ends will be the first month in which you failed 
to do what we asked.
    (3) We are unable to find you. If there is a question about whether 
you continue to be disabled and we are unable to find you to resolve the 
question, we will determine that your disability has ended. The month 
your disability ends will be the first month in which the question arose 
and we could not find you.
    (4) You fail to follow prescribed treatment which would be expected 
to restore your ability to engage in gainful activity. If treatment has 
been prescribed for you which would be expected to restore your ability 
to work, you must follow that treatment in order to be paid benefits. If 
you are not following that treatment and you do not have good cause for 
failing to follow that treatment, we will find that your disability has 
ended (see Sec. 404.1530(c)). The month your disability ends will be the 
first month in which you failed to follow the prescribed treatment.
    (f) Evaluation steps. To assure that disability reviews are carried 
out in a uniform manner, that decisions of continuing disability can be 
made in the most expeditious and administratively efficient way, and 
that any decisions to stop disability benefits are made objectively, 
neutrally and are fully documented, we will follow specific steps in 
reviewing the question of whether your disability continues. Our review 
may stop and benefits may be continued at any point if we determine 
there is sufficient evidence to find that you are still unable to engage 
in gainful activity. The steps are:
    (1) Are you engaging in substantial gainful activity? If you are 
(and any applicable trial work period has been completed), we will find 
disability to have ended.
    (2) If you are not, has there been medical improvement as defined in 
paragraph (b)(1) of this section? If there has been medical improvement 
as shown by a decrease in medical severity, see step (3). If there has 
been no decrease in medical severity, there has been no medical 
improvement. (see step (4).)
    (3) If there has been medical improvement, we must determine (in 
accordance with paragraph (b)(2) of this section) whether it is related 
to your ability to work. If medical improvement is not related to your 
ability to do work, see step (4). If medical improvement is related to 
your ability to do work, see step (5).
    (4) If we found at step (2) that there has been no medical 
improvement or if we found at step (3) that the medical improvement is 
not related to your ability to work, we consider whether any of the 
exceptions in paragraphs (d) and (e) of this section apply. If none of 
them apply, your disability will be found to continue. If one of the 
first group of exceptions to medical improvement (see paragraph (d) of 
this section) applies, we will proceed to step (5). If an exception from 
the second group of exceptions to medical improvement applies, your 
disability will be found to have ended. The second group of exceptions 
to medical improvement may be considered at any point in this process.
    (5) If medical improvement is related to your ability to work or if 
one of the first group of exceptions to medical improvement applies, we 
will determine (considering all your impairments) whether the 
requirements of appendix 1 of this subpart are met or equaled. If your 
impairment(s) meets or equals the requirements of appendix 1 of this 
subpart, your disability will be found to continue. If not, your 
disability will be found to have ended.
    (g) The month in which we will find you are no longer disabled. If 
the evidence shows that you are no longer disabled, we will find that 
your disability ended in the earliest of the following months--
    (1) The month the evidence shows you are no longer disabled under 
the rules set out in this section, and you were disabled only for a 
specified period of time in the past;
    (2) The month the evidence shows you are no longer disabled under 
the rules set out in this section, but not earlier than the month in 
which we

[[Page 387]]

mail you a notice saying that the information we have shows that you are 
not disabled;
    (3) The month in which you demonstrated your ability to engage in 
substantial gainful activity (following completion of a trial work 
period); however, we may pay you benefits for certain months in and 
after the reentitlement period which follows the trial work period. (See 
Sec. 404.1592 for a discussion of the trial work period, Sec. 404.1592a 
for a discussion of the reentitlement period, and Sec. 404.337 for when 
your benefits will end.);
    (4) The month in which you return to full-time work, with no 
significant medical restrictions and acknowledge that medical 
improvement has occurred, as long as we expected your impairment(s) to 
improve (see Sec. 404.1591);
    (5) The first month in which you failed to do what we asked, without 
good cause when the rule set out in paragraph (e)(2) of this section 
applies;
    (6) The first month in which the question of continuing disability 
arose and we could not find you, when the rule set out in paragraph 
(e)(3) of this section applies;
    (7) The first month in which you failed to follow prescribed 
treatment without good cause, when the rule set out in paragraph (e)(4) 
of this section applies; or
    (8) The first month you were told by your physician that you could 
return to work provided there is no substantial conflict between your 
physician's and your statements regarding your awareness of your 
capacity for work and the earlier date is supported by medical evidence.
    (h) Before we stop your benefits. Before we determine you are no 
longer disabled, we will give you a chance to explain why we should not 
do so. Sections 404.1595 and 404.1597 describe your rights (including 
appeal rights) and the procedures we will follow.

[50 FR 50126, Dec. 6, 1985; 51 FR 7063, Feb. 28, 1986; 51 FR 16015, Apr. 
30, 1986, as amended at 57 FR 30121, July 8, 1992; 59 FR 1635, Jan. 12, 
1994]

                                Blindness



Sec. 404.1581  Meaning of blindness as defined in the law.

    We will consider you blind under the law for a period of disability 
and for payment of disability insurance benefits if we determine that 
you are statutorily blind. Statutory blindness is defined in the law as 
central visual acuity of 20/200 or less in the better eye with the use 
of correcting lens. An eye which has a limitation in the field of vision 
so that the widest diameter of the visual field subtends an angle no 
greater than 20 degrees is considered to have a central visual acuity of 
20/200 or less. Your blindness must meet the duration requirement in 
Sec. 404.1509. We do not consider certain felony-related and prison-
related impairments, as explained in Sec. 404.1506.

[45 FR 55584, Aug. 20, 1980, as amended at 48 FR 5715, Feb. 8, 1983]



Sec. 404.1582  A period of disability based on blindness.

    If we find that you are blind and you meet the insured status 
requirement, we may establish a period of disability for you regardless 
of whether you can do substantial gainful activity. A period of 
disability protects your earnings record under Social Security so that 
the time you are disabled will not count against you in determining 
whether you will have worked long enough to qualify for benefits and the 
amount of your benefits. However, you will not necessarily be entitled 
to receive disability insurance cash benefits even though you are blind. 
If you are a blind person under age 55, you must be unable to do any 
substantial gainful activity in order to be paid disability insurance 
cash benefits.



Sec. 404.1583  How we determine disability for blind persons who are age 55 or older.

    We will find that you are eligible for disability insurance benefits 
even though you are still engaging in substantial gainful activity, if--
    (a) You are blind;
    (b) You are age 55 or older; and
    (c) You are unable to use the skills or abilities like the ones you 
used in any

[[Page 388]]

substantial gainful activity which you did regularly and for a 
substantial period of time. (However, you will not be paid any cash 
benefits for any month in which you are doing substantial gainful 
activity.)



Sec. 404.1584  Evaluation of work activity of blind people.

    (a) General. If you are blind (as explained in Sec. 404.1581), we 
will consider the earnings from the work you are doing to determine 
whether or not you should be paid cash benefits.
    (b) Under Age 55. If you are under age 55, we will evaluate the work 
you are doing using the guides in paragraph (d) of this section to 
determine whether or not your work shows that you are doing substantial 
gainful activity. If you are not doing substantial gainful activity, we 
will pay you cash benefits. If you are doing substantial gainful 
activity, we will not pay you cash benefits. However, you will be given 
a period of disability as described in subpart D of this part.
    (c) Age 55 or older. If you are age 55 or older, we will evaluate 
your work using the guides in paragraph (d) of this section to determine 
whether or not your work shows that you are doing substantial gainful 
activity. If you have not shown this ability, we will pay you cash 
benefits. If you have shown an ability to do substantial gainful 
activity, we will evaluate your work activity to find out how your work 
compares with the work you did before. If the skills and abilities of 
your new work are about the same as those you used in the work you did 
before, we will not pay you cash benefits. However, if your new work 
requires skills and abilities which are less than or different than 
those you used in the work you did before, we will pay you cash 
benefits, but not for any month in which you actually perform 
substantial gainful activity.
    (d) Evaluation of earnings. The law provides a different earnings 
test for substantial gainful activity of people who are blind. We will 
not consider that you are able to engage in substantial gainful activity 
on the basis of earnings unless your monthly earnings average more than 
$334.00 in 1978; $375.00 in 1979; $417.00 in 1980; $459.00 in 1981; and 
$500.00 in 1982. (Sections 404.1574(a)(2), 404.1575(c) and 404.1576 are 
applicable in determining the amount of your earnings.) Thereafter, an 
increase in the substantial gainful activity amount will depend on 
increases in the cost of living. For work activity performed in taxable 
years before 1978, the earnings considered enough to show an ability to 
do substantial gainful activity are the same for blind people as for 
others.

[45 FR 55584, Aug. 20, 1980, as amended at 48 FR 21939, May 16, 1983]



Sec. 404.1585  Trial work period for persons age 55 or older who are blind.

    If you become eligible for disability benefits even though you were 
doing substantial gainful activity because you are blind and age 55 or 
older, you are entitled to a trial work period if--
    (a) You later return to substantial gainful activity that requires 
skills or abilities comparable to those required in the work you 
regularly did before you became blind or became 55 years old, whichever 
is later; or
    (b) Your last previous work ended because of an impairment and the 
current work requires a significant vocational adjustment.



Sec. 404.1586  Why and when we will stop your cash benefits.

    (a) When you are not entitled to benefits. If you become entitled to 
disability cash benefits as a statutorily blind person, we will find 
that you are no longer entitled to benefits beginning with the earliest 
of--
    (1) The month your vision, based on current medical evidence, does 
not meet the definition of blindness and your disability does not 
continue under the rules in Sec. 404.1594 and you were disabled only for 
a specified period of time in the past;
    (2) The month your vision, based on current medical evidence, does 
not meet the definition of blindness and your disability does not 
continue under the rules in Sec. 404.1594, but not earlier than the 
month in which we mail you a notice saying that the information we have 
shows that you are not disabled;

[[Page 389]]

    (3) If you are under age 55, the month in which you demonstrated 
your ability to engage in substantial gainful activity (following 
completion of a trial work period); however, we may pay you benefits for 
certain months in and after the reentitlement period which follows the 
trial work period. (See Sec. 404.1592a for a discussion of the 
reentitlement period, and Sec. 404.316 on when your benefits will end.); 
or
    (4) If you are age 55 or older, the month (following completion of a 
trial work period) when your work activity shows you are able to use, in 
substantial gainful activity, skills and abilities comparable to those 
of some gainful activity which you did with some regularity and over a 
substantial period of time. The skills and abilities are compared to the 
activity you did prior to age 55 or prior to becoming blind, whichever 
is later.
    (b) If we find that you are not entitled to disability cash 
benefits. If we find that you are not entitled to disability cash 
benefits on the basis of your work activity but your visual impairment 
is sufficiently severe to meet the definition of blindness, the period 
of disability that we established for you will continue.
    (c) If you do not follow prescribed treatment. If treatment has been 
prescribed for you that can restore your ability to work, you must 
follow that treatment in order to be paid benefits. If you are not 
following that treatment and you do not have a good reason for failing 
to follow that treatment (see Sec. 404.1530(c)), we will find that your 
disability has ended. The month in which your disability will be found 
to have ended will be the first month in which you failed to follow the 
prescribed treatment.
    (d) If you do not cooperate with us. If we ask you to give us 
medical or other evidence or to go for a medical examination by a 
certain date, we will find that your disability has ended if you fail, 
without good cause, to do what we ask. Section 404.911 explains the 
factors we consider and how we will determine generally whether you have 
good cause for failure to cooperate. In addition, Sec. 404.1518 
discusses how we determine whether you have good cause for failing to 
attend a consultative examination. The month in which your disability 
will be found to have ended will be the month in which you failed to do 
what we asked.
    (e) If we are unable to find you. If there is a question about 
whether you continue to be disabled by blindness and we are unable to 
find you to resolve the question, we will find that your disability, has 
ended. The month it ends will be the first month in which the question 
arose and we could not find you.
    (f) Before we stop your benefits. Before we stop your benefits or 
period of disability, we will give you a chance to give us your reasons 
why we should not stop your benefits or your period of disability. 
Section 404.1595 describes your rights and the procedures we will 
follow.
    (g) If you are in an appropriate vocational rehabilitation program. 
(1) Your benefits, and those of your dependents, may be continued for 
months after November 1980 after your impairment is no longer disabling 
if--
    (i) Your disability did not end before December 1980;
    (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.
    (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

[[Page 390]]

the second month after your disability ends.

[45 FR 55584, Aug. 20, 1980, as amended at 47 FR 31543, July 21, 1982; 
47 FR 52693, Nov. 23, 1982; 49 FR 22272, May 29, 1984; 50 FR 50130, Dec. 
6, 1985; 51 FR 17617, May 14, 1986; 59 FR 1635, Jan. 12, 1994]



Sec. 404.1587  Circumstances under which we may suspend your benefits before we make a determination.

    We will suspend your benefits if all of the information we have 
clearly shows that you are not disabled and we will be unable to 
complete a determination soon enough to prevent us from paying you more 
monthly benefits than you are entitled to. This may occur when you are 
blind as defined in the law and age 55 or older and you have returned to 
work similar to work you previously performed.

                    Continuing or Stopping Disability



Sec. 404.1588  Your responsibility to tell us of events that may change your disability status.

    If you are entitled to cash benefits or to a period of disability 
because you are disabled, you should promptly tell us if--
    (a) Your condition improves;
    (b) You return to work;
    (c) You increase the amount of your work; or
    (d) Your earnings increase.



Sec. 404.1589  We may conduct a review to find out whether you continue to be disabled.

    After we find that you are disabled, we must evaluate your 
impairment(s) from time to time to determine if you are still eligible 
for disability cash benefits. We call this evaluation a continuing 
disability review. We may begin a continuing disability review for any 
number of reasons including your failure to follow the provisions of the 
Social Security Act or these regulations. When we begin such a review, 
we will notify you that we are reviewing your eligibility for disability 
benefits, why we are reviewing your eligibility, that in medical reviews 
the medical improvement review standard will apply, that our review 
could result in the termination of your benefits, and that you have the 
right to submit medical and other evidence for our consideration during 
the continuing disability review. In doing a medical review, we will 
develop a complete medical history of at least the preceding 12 months 
in any case in which a determination is made that you are no longer 
under a disability. If this review shows that we should stop payment of 
your benefits, we will notify you in writing and give you an opportunity 
to appeal. In Sec. 404.1590 we describe those events that may prompt us 
to review whether you continue to be disabled.

[51 FR 16825, May 7, 1986]



Sec. 404.1590  When and how often we will conduct a continuing disability review.

    (a) General. We conduct continuing disability reviews to determine 
whether or not you continue to meet the disability requirements of the 
law. Payment of cash benefits or a period of disability ends if the 
medical or other evidence shows that you are not disabled as determined 
under the standards set out in section 223(f) of the Social Security 
Act.
    (b) When we will conduct a continuing disability review. A 
continuing disability review will be started if--
    (1) You have been scheduled for a medical improvement expected diary 
review;
    (2) You have been scheduled for a periodic review (medical 
improvement possible or medical improvement not expected) in accordance 
with the provisions of paragraph (d) of this section;
    (3) We need a current medical or other report to see if your 
disability continues. (This could happen when, for example, an advance 
in medical technology, such as improved treatment for Alzheimer's 
disease or a change in vocational therapy or technology raises a 
disability issue.);
    (4) You return to work and successfully complete a period of trial 
work;
    (5) Substantial earnings are reported to your wage record;
    (6) You tell us that you have recovered from your disability or that 
you have returned to work;
    (7) Your State Vocational Rehabilitation Agency tells us that--
    (i) The services have been completed; or

[[Page 391]]

    (ii) You are now working; or
    (iii) You are able to work;
    (8) Someone in a position to know of your physical or mental 
condition tells us that you are not disabled, that you are not following 
prescribed treatment, that you have returned to work, or that you are 
failing to follow the provisions of the Social Security Act or these 
regulations, and it appears that the report could be substantially 
correct;
    (9) Evidence we receive raises a question as to whether your 
disability continues; or
    (10) You have been scheduled for a vocational reexamination diary 
review.
    (c) Definitions. As used in this section--
    Medical improvement expected diary--refers to a case which is 
scheduled for review at a later date because the individual's 
impairment(s) is expected to improve. Generally, the diary period is set 
for not less than 6 months or for not more than 18 months. Examples of 
cases likely to be scheduled for medical improvement expected diary are 
fractures and cases in which corrective surgery is planned and recovery 
can be anticipated.
    Permanent impairment--medical improvement not expected--refers to a 
case in which any medical improvement in the person's impairment(s) is 
not expected. This means an extremely severe condition determined on the 
basis of our experience in administering the disability programs to be 
at least static, but more likely to be progressively disabling either by 
itself or by reason of impairment complications, and unlikely to improve 
so as to permit the individual to engage in substantial gainful 
activity. The interaction of the individual's age, impairment 
consequences and lack of recent attachment to the labor market may also 
be considered in determining whether an impairment is permanent. 
Improvement which is considered temporary under Sec. 404.1579(c)(4) or 
Sec. 404.1594(c)(3)(iv), as appropriate, will not be considered in 
deciding if an impairment is permanent. Examples of permanent 
impairments taken from the list contained in our other written 
guidelines which are available for public review are as follows and are 
not intended to be all inclusive:
    (1) Parkinsonian Syndrome which has reached the level of severity 
necessary to meet the Listing in appendix 1.
    (2) Amyotrophic Lateral Sclerosis which has reached the level of 
severity necessary to meet the Listing in appendix 1.
    (3) Diffuse pulmonary fibrosis in an individual age 55 or over which 
has reached the level of severity necessary to meet the Listing in 
appendix 1.
    (4) Amputation of leg at hip.
    Nonpermanent impairment--refers to a case in which any medical 
improvement in the person's impairment(s) is possible. This means an 
impairment for which improvement cannot be predicted based on current 
experience and the facts of the particular case but which is not at the 
level of severity of an impairment that is considered permanent. 
Examples of nonpermanent impairments are: regional enteritis, 
hyperthyroidism, and chronic ulcerative colitis.
    Vocational reexamination diary--refers to a case which is scheduled 
for review at a later date because the individual is undergoing 
vocational therapy, training or an educational program which may improve 
his or her ability to work so that the disability requirement of the law 
is no longer met. Generally, the diary period will be set for the length 
of the training, therapy, or program of education.
    (d) Frequency of review. If your impairment is expected to improve, 
generally we will review your continuing eligibility for disability 
benefits at intervals from 6 months to 18 months following our most 
recent decision. Our notice to you about the review of your case will 
tell you more precisely when the review will be conducted. If your 
disability is not considered permanent but is such that any medical 
improvement in your impairment(s) cannot be accurately predicted, we 
will review your continuing eligibility for disability benefits at least 
once every 3 years. If your disability is considered permanent, we will 
review your continuing eligibility for benefits no less frequently than 
once every 7 years but no more frequently than once every 5

[[Page 392]]

years. Regardless of your classification, we will conduct an immediate 
continuing disability review if a question of continuing disability is 
raised pursuant to paragraph (b) of this section.
    (e) Change in classification of impairment. If the evidence 
developed during a continuing disability review demonstrates that your 
impairment has improved, is expected to improve, or has worsened since 
the last review, we may reclassify your impairment to reflect this 
change in severity. A change in the classification of your impairment 
will change the frequency with which we will review your case. We may 
also reclassify certain impairments because of improved tests, 
treatment, and other technical advances concerning those impairments.
    (f) Review after administrative appeal. If you were found eligible 
to receive or to continue to receive disability benefits on the basis of 
a decision by an administrative law judge, the Appeals Council or a 
Federal court, we will not conduct a continuing disability review 
earlier than 3 years after that decision unless your case should be 
scheduled for a medical improvement expected or vocational reexamination 
diary review or a question of continuing disability is raised pursuant 
to paragraph (b) of this section.
    (g) Waiver of timeframes. All cases involving a nonpermanent 
impairment will be reviewed by us at least once every 3 years unless we, 
after consultation with the State agency, determine that the requirement 
should be waived to ensure that only the appropriate number of cases are 
reviewed. The appropriate number of cases to be reviewed is to be based 
on such considerations as the backlog of pending reviews, the projected 
number of new applications, and projected staffing levels. Such waiver 
shall be given only after good faith effort on the part of the State to 
meet staffing requirements and to process the reviews on a timely basis. 
Availability of independent medical resources may also be a factor. A 
waiver in this context refers to our administrative discretion to 
determine the appropriate number of cases to be reviewed on a State by 
State basis. Therefore, your continuing disability review may be delayed 
longer than 3 years following our original decision or other review 
under certain circumstances. Such a delay would be based on our need to 
ensure that backlogs, reviews required to be performed by the Social 
Security Disability Benefits Reform Act of 1984 (Pub. L. 98-460), and 
new disability claims workloads are accomplished within available 
medical and other resources in the State agency and that such reviews 
are done carefully and accurately.

[51 FR 16825, May 7, 1986]



Sec. 404.1591  If your medical recovery was expected and you returned to work.

    If your impairment was expected to improve and you returned to full-
time work with no significant medical limitations and acknowledge that 
medical improvement has occurred, we may find that your disability ended 
in the month you returned to work. Unless there is evidence showing that 
your disability has not ended, we will use the medical and other 
evidence already in your file and the fact that you returned to full-
time work without significant limitations to determine that you are no 
longer disabled. (If your impairment is not expected to improve, we will 
not ordinarily review your claim until the end of the trial work period, 
as described in Sec. 404.1592.)
    Example:  Evidence obtained during the processing of your claim 
showed that you had an impairment that was expected to improve about 18 
months after your disability began. We, therefore, told you that your 
claim would be reviewed again at that time. However, before the time 
arrived for your scheduled medical re-examination, you told us that you 
had returned to work and your impairment had improved. We investigated 
immediately and found that, in the 16th month after your disability 
began, you returned to full-time work without any significant medical 
restrictions. Therefore, we would find that your disability ended in the 
first month you returned to full-time work.

[50 FR 50130, Dec. 6, 1985]



Sec. 404.1592  The trial work period.

    (a) Definition of the trial work period. The trial work period is a 
period during which you may test your ability to work and still be 
considered disabled.

[[Page 393]]

It begins and ends as described in paragraph (e) of this section. During 
this period, you may perform services (see paragraph (b) of this 
section) in as many as 9 months, but these months do not have to be 
consecutive. We will not consider those services as showing that your 
disability has ended until you have performed services in at least 9 
months. However, after the trial work period has ended we will consider 
the work you did during the trial work period in determining whether 
your disability ended at any time after the trial work period.
    (b) What we mean by services. When used in this section, services 
means any activity, even though it is not substantial gainful activity, 
which is done by a person in employment or self-employment for pay or 
profit, or is the kind normally done for pay or profit. If you are an 
employee, we will consider your work to be services if in any calendar 
year after 1989 you earn more than $200 a month ($75 a month is the 
amount for calendar years 1979 through 1989, and $50 a month is the 
amount for calendar years before 1979). If you are self-employed, we 
will consider your activities services if in any calendar year after 
1989, your net earnings are more than $200 a month ($75 a month is the 
amount for calendar years 1979 through 1989, and $50 a month is the 
amount for calendar years before 1979), or you work more than 40 hours a 
month in the business in any calendar year after 1989 (15 hours a month 
is the figure for calendar years before 1990). We generally do not 
consider work to be services when it is done without remuneration or 
merely as therapy or training, or when it is work usually done in a 
daily routine around the house, or in self-care.
    (c) Limitations on the number of trial work periods. You may have 
only one trial work period during a period of entitlement to cash 
benefits.
    (d) Who is and is not entitled to a trial work period. (1) Those who 
are receiving disability insurance benefits, child's benefits based on 
disability and, beginning December 1, 1980, those who are receiving 
widows' or widowers' benefits based on disability, or surviving divorced 
spouses' benefits based on disability, generally are entitled to a trial 
work period.
    (2) You are not entitled to a trial work period if--
    (i) You are entitled to a period of disability but not to disability 
insurance cash benefits; or
    (ii) You are receiving disability insurance benefits in a second 
period of disability for which you did not have to complete a waiting 
period.
    (e) When the trial work period begins and ends. The trial work 
period begins with the month in which you become entitled to disability 
insurance cash benefits, to child's cash benefits based on disability or 
to widow's, widower's, or surviving divorced spouse's cash benefits 
based on disability. It cannot begin before the month in which you file 
your application for benefits and for widows, widowers, and surviving 
divorced spouses, it cannot begin before December 1, 1980. It ends with 
the close of whichever of the following calendar months is the earlier:
    (1) The 9th month (whether or not the months have been consecutive) 
in which you have performed services; or
    (2) The month in which new evidence, other than evidence relating to 
any work you did during the trial work period, shows that you are not 
disabled, even though you have not worked a full 9 months. We may find 
that your disability has ended at any time during the trial work period 
if the medical or other evidence shows that you are no longer disabled 
(see Sec. 404.1594).

[45 FR 55584, Aug. 20, 1980, as amended at 49 FR 22273, May 29, 1984; 50 
FR 50130, Dec. 6, 1985; 54 FR 53605, Dec. 29, 1989]



Sec. 404.1592a  The reentitlement period.

    (a) General. The reentitlement period is an additional period after 
9 months of trial work during which you may continue to test your 
ability to work if you have a disabling impairment. You will not be paid 
benefits for any month, after the third month, in this period in which 
you do substantial gainful activity and you will be paid benefits for 
months in which you do not do substantial gainful activity. (See 
Secs. 404.316, 404.337, 404.352 and 404.401a.) If anyone else is 
receiving monthly benefits based on your earnings record, that 
individual will not be paid benefits for

[[Page 394]]

any month for which you cannot be paid benefits during the reentitlement 
period. If your benefits are stopped because you do substantial gainful 
activity they may be started again without a new application and a new 
determination of disability if you discontinue doing substantial gainful 
activity during this period. In determining, for reentitlement benefit 
purposes, whether you do substantial gainful activity in a month, we 
consider only your work in or earnings for that month; we do not 
consider the average amount of your work or earnings over a period of 
months.
    (b) When the reentitlement period begins and ends. The reentitlement 
period begins with the first month following completion of 9 months of 
trial work but cannot begin earlier than December 1, 1980. It ends with 
whichever is earlier--
    (1) The month before the first month in which your impairment no 
longer exists or is not medically disabling; or
    (2) The last day of the 15th month following the end of your trial 
work period. (See Secs. 404.316, 404.337, and 404.352 for when your 
benefits end.)
    (c) When you are not entitled to a reentitlement period. You are not 
entitled to a reentitlement period if:
    (1) You are entitled to a period of disability, but not to 
disability insurance cash benefits;
    (2) You are not entitled to a trial work period;
    (3) Your entitlement to disability insurance benefits ended before 
you completed 9 months of trial work in that period of disability.

[49 FR 22273, May 29, 1984, as amended at 58 FR 64883, Dec. 10, 1993]



Sec. 404.1593  Medical evidence in continuing disability review cases.

    (a) General. If you are entitled to benefits or if a period of 
disability has been established for you because you are disabled, we 
will have your case file with the supporting medical evidence previously 
used to establish or continue your entitlement. Generally, therefore, 
the medical evidence we will need for a continuing disability review 
will be that required to make a current determination or decision as to 
whether you are still disabled, as defined under the medical improvement 
review standard. See Secs. 404.1579 and 404.1594.
    (b) Obtaining evidence from your medical sources. You must provide 
us with reports from your physician, psychologist, or others who have 
treated or evaluated you, as well as any other evidence that will help 
us determine if you are still disabled. See Sec. 404.1512. You must have 
a good reason for not giving us this information or we may find that 
your disability has ended. See Sec. 404.1594(e)(2). If we ask you, you 
must contact your medical sources to help us get the medical reports. We 
will make every reasonable effort to help you in getting medical reports 
when you give us permission to request them from your physician, 
psychologist, or other medical sources. See Sec. 404.1512(d)(1) 
concerning what we mean by every reasonable effort. In some instances, 
such as when a source is known to be unable to provide certain tests or 
procedures or is known to be nonproductive or uncooperative, we may 
order a consultative examination while awaiting receipt of medical 
source evidence. Before deciding that your disability has ended, we will 
develop a complete medical history covering at least the 12 months 
preceding the date you sign a report about your continuing disability 
status. See Sec. 404.1512(c).
    (c) When we will purchase a consultative examination. A consultative 
examination may be purchased when we need additional evidence to 
determine whether or not your disability continues. As a result, we may 
ask you, upon our request and reasonable notice, to undergo consultative 
examinations and tests to help us determine if you are still disabled. 
See Sec. 404.1517. We will decide whether or not to purchase a 
consultative examination in accordance with the standards in 
Secs. 404.1519a through 404.1519b.

[56 FR 36962, Aug. 1, 1991]



Sec. 404.1594  How we will determine whether your disability continues or ends.

    (a) General. There is a statutory requirement that, if you are 
entitled to disability benefits, your continued entitlement to such 
benefits must be reviewed periodically. If you are entitled

[[Page 395]]

to disability benefits as a disabled worker or as a person disabled 
since childhood, or, for monthly benefits payable for months after 
December 1990, as a disabled widow, widower, or surviving divorced 
spouse, there are a number of factors we consider in deciding whether 
your disability continues. We must determine if there has been any 
medical improvement in your impairment(s) and, if so, whether this 
medical improvement is related to your ability to work. If your 
impairment(s) has not medically improved we must consider whether one or 
more of the exceptions to medical improvement applies. If medical 
improvement related to your ability to work has not occurred and no 
exception applies, your benefits will continue. Even where medical 
improvement related to your ability to work has occurred or an exception 
applies, in most cases (see paragraph (e) of this section for 
exceptions), we must also show that you are currently able to engage in 
substantial gainful activity before we can find that you are no longer 
disabled.
    (b) Terms and definitions. There are several terms and definitions 
which are important to know in order to understand how we review whether 
your disability continues.
    (1) Medical improvement. Medical improvement is any decrease in the 
medical severity of your impairment(s) which was present at the time of 
the most recent favorable medical decision that you were disabled or 
continued to be disabled. A determination that there has been a decrease 
in medical severity must be based on changes (improvement) in the 
symptoms, signs and/or laboratory findings associated with your 
impairment(s) (see Sec. 404.1528).
    Example 1:  You were awarded disability benefits due to a herniated 
nucleus pulposus. At the time of our prior decision granting you 
benefits you had had a laminectomy. Postoperatively, a myelogram still 
shows evidence of a persistent deficit in your lumbar spine. You had 
pain in your back, and pain and a burning sensation in your right foot 
and leg. There were no muscle weakness or neurological changes and a 
modest decrease in motion in your back and leg. When we reviewed your 
claim your treating physician reported that he had seen you regularly 
every 2 to 3 months for the past 2 years. No further myelograms had been 
done, complaints of pain in the back and right leg continued especially 
on sitting or standing for more than a short period of time. Your doctor 
further reported a moderately decreased range of motion in your back and 
right leg, but again no muscle atrophy or neurological changes were 
reported. Medical improvement has not occurred because there has been no 
decrease in the severity of your back impairment as shown by changes in 
symptoms, signs or laboratory findings.
    Example 2:  You were awarded disability benefits due to rheumatoid 
arthritis. At the time, laboratory findings were positive for this 
condition. Your doctor reported persistent swelling and tenderness of 
your fingers and wrists and that you complained of joint pain. Current 
medical evidence shows that while laboratory tests are still positive 
for rheumatoid arthritis, your impairment has responded favorably to 
therapy so that for the last year your fingers and wrists have not been 
significantly swollen or painful. Medical improvement has occurred 
because there has been a decrease in the severity of your impairment as 
documented by the current symptoms and signs reported by your physician. 
Although your impairment is subject to temporary remission and 
exacerbations, the improvement that has occurred has been sustained long 
enough to permit a finding of medical improvement. We would then 
determine if this medical improvement is related to your ability to 
work.
    (2) Medical improvement not related to ability to do work. Medical 
improvement is not related to your ability to work if there has been a 
decrease in the severity of the impairment(s) as defined in paragraph 
(b)(1) of this section, present at the time of the most recent favorable 
medical decision, but no increase in your functional capacity to do 
basic work activities as defined in paragraph (b)(4) of this section. If 
there has been any medical improvement in your impairment(s), but it is 
not related to your ability to do work and none of the exceptions 
applies, your benefits will be continued.
    Example:  You are 65 inches tall and weighed 246 pounds at the time 
your disability was established. You had venous insufficiency and 
persistent edema in your legs. At the time, your ability to do basic 
work activities was affected because you were able to sit for 6 hours, 
but were able to stand or walk only occasionally. At the time of our 
continuing disability review, you had undergone a vein stripping 
operation. You now weigh 220 pounds and have intermittent edema. You are 
still able to sit for 6 hours at a time and to stand or walk only 
occasionally although you report less discomfort on walking. Medical 
improvement has occurred

[[Page 396]]

because there has been a decrease in the severity of the existing 
impairment as shown by your weight loss and the improvement in your 
edema. This medical improvement is not related to your ability to work, 
however, because your functional capacity to do basic work activities 
(i.e., the ability to sit, stand and walk) has not increased.
    (3) Medical improvement that is related to ability to do work. 
Medical improvement is related to your ability to work if there has been 
a decrease in the severity, as defined in paragraph (b)(1) of this 
section, of the impairment(s) present at the time of the most recent 
favorable medical decision and an increase in your functional capacity 
to do basic work activities as discussed in paragraph (b)(4) of this 
section. A determination that medical improvement related to your 
ability to do work has occurred does not, necessarily, mean that your 
disability will be found to have ended unless it is also shown that you 
are currently able to engage in substantial gainful activity as 
discussed in paragraph (b)(5) of this section.
    Example 1:  You have a back impairment and had a laminectomy to 
relieve the nerve root impingement and weakness in your left leg. At the 
time of our prior decision, basic work activities were affected because 
you were able to stand less than 6 hours, and sit no more than \1/2\ 
hour at a time. You had a successful fusion operation on your back about 
1 year before our review of your entitlement. At the time of our review, 
the weakness in your leg has decreased. Your functional capacity to 
perform basic work activities now is unimpaired because you now have no 
limitation on your ability to sit, walk, or stand. Medical improvement 
has occurred because there has been a decrease in the severity of your 
impairment as demonstrated by the decreased weakness in your leg. This 
medical improvement is related to your ability to work because there has 
also been an increase in your functional capacity to perform basic work 
activities (or residual functional capacity) as shown by the absence of 
limitation on your ability to sit, walk, or stand. Whether or not your 
disability is found to have ended, however, will depend on our 
determination as to whether you can currently engage in substantial 
gainful activity.
    Example 2:  You were injured in an automobile accident receiving a 
compound fracture to your right femur and a fractured pelvis. When you 
applied for disability benefits 10 months after the accident your doctor 
reported that neither fracture had yet achieved solid union based on his 
clinical examination. X-rays supported this finding. Your doctor 
estimated that solid union and a subsequent return to full weight 
bearing would not occur for at least 3 more months. At the time of our 
review 6 months later, solid union had occurred and you had been 
returned to full weight-bearing for over a month. Your doctor reported 
this and the fact that your prior fractures no longer placed any 
limitation on your ability to walk, stand, lift, etc., and, that in 
fact, you could return to fulltime work if you so desired.
    Medical improvement has occurred because there has been a decrease 
in the severity of your impairments as shown by X-ray and clinical 
evidence of solid union and your return to full weight-bearing. This 
medical improvement is related to your ability to work because you no 
longer meet the same listed impairment in appendix 1 of this subpart 
(see paragraph (c)(3)(i) of this section). In fact, you no longer have 
an impairment which is severe (see Sec. 404.1521) and your disability 
will be found to have ended.
    (4) Functional capacity to do basic work activities. Under the law, 
disability is defined, in part, as the inability to do any substantial 
gainful activity by reason of any medically determinable physical or 
mental impairment(s). In determining whether you are disabled under the 
law, we must measure, therefore, how and to what extent your 
impairment(s) has affected your ability to do work. We do this by 
looking at how your functional capacity for doing basic work activities 
has been affected. Basic work activities means the abilities and 
aptitudes necessary to do most jobs. Included are exertional abilities 
such as walking, standing, pushing, pulling, reaching and carrying, and 
nonexertional abilities and aptitudes such as seeing, hearing, speaking, 
remembering, using judgment, dealing with changes and dealing with both 
supervisors and fellow workers. A person who has no impairment(s) would 
be able to do all basic work activities at normal levels; he or she 
would have an unlimited functional capacity to do basic work activities. 
Depending on its nature and severity, an impairment will result in some 
limitation to the functional capacity to do one or more of these basic 
work activities. Diabetes, for example, can result in circulatory 
problems which could limit the length of time a person could stand or 
walk and damage to his or her eyes as well, so that the person also had

[[Page 397]]

limited vision. What a person can still do despite an impairment, is 
called his or her residual functional capacity. How the residual 
functional capacity is assessed is discussed in more detail in 
Sec. 404.1545. Unless an impairment is so severe that it is deemed to 
prevent you from doing substantial gainful activity (see Secs. 404.1525 
and 404.1526), it is this residual functional capacity that is used to 
determine whether you can still do your past work or, in conjunction 
with your age, education and work experience, any other work.
    (i) A decrease in the severity of an impairment as measured by 
changes (improvement) in symptoms, signs or laboratory findings can, if 
great enough, result in an increase in the functional capacity to do 
work activities. Vascular surgery (e.g., femoropopliteal bypass) may 
sometimes reduce the severity of the circulatory complications of 
diabetes so that better circulation results and the person can stand or 
walk for longer periods. When new evidence showing a change in signs, 
symptoms and laboratory findings establishes that both medical 
improvement has occurred and your functional capacity to perform basic 
work activities, or residual functional capacity, has increased, we say 
that medical improvement which is related to your ability to do work has 
occurred. A residual functional capacity assessment is also used to 
determine whether you can engage in substantial gainful activity and, 
thus, whether you continue to be disabled (see paragraph (b)(5) of this 
section).
    (ii) Many impairment-related factors must be considered in assessing 
your functional capacity for basic work activities. Age is one key 
factor. Medical literature shows that there is a gradual decrease in 
organ function with age; that major losses and deficits become 
irreversible over time and that maximum exercise performance diminishes 
with age. Other changes related to sustained periods of inactivity and 
the aging process include muscle atrophy, degenerative joint changes, 
decrease in range of motion, and changes in the cardiac and respiratory 
systems which limit the exertional range.
    (iii) Studies have also shown that the longer an individual is away 
from the workplace and is inactive, the more difficult it becomes to 
return to ongoing gainful employment. In addition, a gradual change 
occurs in most jobs so that after about 15 years, it is no longer 
realistic to expect that skills and abilities acquired in these jobs 
will continue to apply to the current workplace. Thus, if you are age 50 
or over and have been receiving disability benefits for a considerable 
period of time, we will consider this factor along with your age in 
assessing your residual functional capacity. This will ensure that the 
disadvantages resulting from inactivity and the aging process during a 
long period of disability will be considered. In some instances where 
available evidence does not resolve what you can or cannot do on a 
sustained basis, we will provide special work evaluations or other 
appropriate testing.
    (5) Ability to engage in substantial gainful activity. In most 
instances, we must show that you are able to engage in substantial 
gainful activity before your benefits are stopped. When doing this, we 
will consider all your current impairments not just that impairment(s) 
present at the time of the most recent favorable determination. If we 
cannot determine that you are still disabled based on medical 
considerations alone (as discussed in Secs. 404.1525 and 404.1526), we 
will use the new symptoms, signs and laboratory findings to make an 
objective assessment of your functional capacity to do basic work 
activities or residual functional capacity and we will consider your 
vocational factors. See Secs. 404.1545 through 404.1569.
    (6) Evidence and basis for our decision. Our decisions under this 
section will be made on a neutral basis without any initial inference as 
to the presence or absence of disability being drawn from the fact that 
you have previously been determined to be disabled. We will consider all 
evidence you submit, as well as all evidence we obtain from your 
treating physician(s) and other medical or nonmedical sources. What 
constitutes evidence and our procedures for obtaining it are set out in 
Secs. 404.1512

[[Page 398]]

through 404.1518. Our determination regarding whether your disability 
continues will be made on the basis of the weight of the evidence.
    (7) Point of comparison. For purposes of determining whether medical 
improvement has occurred, we will compare the current medical severity 
of that impairment(s) which was present at the time of the most recent 
favorable medical decision that you were disabled or continued to be 
disabled to the medical severity of that impairment(s) at that time. If 
medical improvement has occurred, we will compare your current 
functional capacity to do basic work activities (i.e., your residual 
functional capacity) based on this previously existing impairment(s) 
with your prior residual functional capacity in order to determine 
whether the medical improvement is related to your ability to do work. 
The most recent favorable medical decision is the latest decision 
involving a consideration of the medical evidence and the issue of 
whether you were disabled or continued to be disabled which became 
final.
    (c) Determining medical improvement and its relationship to your 
abilities to do work. Paragraphs (b) (1) through (3) of this section 
discuss what we mean by medical improvement, medical improvement not 
related to your ability to work and medical improvement that is related 
to your ability to work. How we will arrive at the decision that medical 
improvement has occurred and its relationship to the ability to do work, 
is discussed below.
    (1) Medical improvement. Medical improvement is any decrease in the 
medical severity of impairment(s) present at the time of the most recent 
favorable medical decision that you were disabled or continued to be 
disabled and is determined by a comparison of prior and current medical 
evidence which must show that there have been changes (improvement) in 
the symptoms, signs or laboratory findings associated with that 
impairment(s).
    (2) Determining if medical improvement is related to ability to 
work. If there is a decrease in medical severity as shown by the 
symptoms, signs and laboratory findings, we then must determine if it is 
related to your ability to do work. In paragraph (b)(4) of this section, 
we explain the relationship between medical severity and limitation on 
functional capacity to do basic work activities (or residual functional 
capacity) and how changes in medical severity can affect your residual 
functional capacity. In determining whether medical improvement that has 
occurred is related to your ability to do work, we will assess your 
residual functional capacity (in accordance with paragraph (b)(4) of 
this section) based on the current severity of the impairment(s) which 
was present at your last favorable medical decision. Your new residual 
functional capacity will then be compared to your residual functional 
capacity at the time of our most recent favorable medical decision. 
Unless an increase in the current residual functional capacity is based 
on changes in the signs, symptoms, or laboratory findings, any medical 
improvement that has occurred will not be considered to be related to 
your ability to do work.
    (3) Following are some additional factors and considerations which 
we will apply in making these determinations.
    (i) Previous impairment met or equaled listings. If our most recent 
favorable decision was based on the fact that your impairment(s) at the 
time met or equaled the severity contemplated by the Listing of 
Impairments in appendix 1 of this subpart, an assessment of your 
residual functional capacity would not have been made. If medical 
improvement has occurred and the severity of the prior impairment(s) no 
longer meets or equals the same listing section used to make our most 
recent favorable decision, we will find that the medical improvement was 
related to your ability to work. Appendix 1 of this subpart describes 
impairments which, if severe enough, affect a person's ability to work. 
If the appendix level of severity is met or equaled, the individual is 
deemed, in the absence of evidence to the contrary, to be unable to 
engage in substantial gainful activity. If there has been medical 
improvement to the degree that the requirement of the listing section is 
no longer met or equaled, then the medical improvement is related to 
your ability to work. We must, of

[[Page 399]]

course, also establish that you can currently engage in gainful activity 
before finding that your disability has ended.
    (ii) Prior residual functional capacity assessment made. The 
residual functional capacity assessment used in making the most recent 
favorable medical decision will be compared to the residual functional 
capacity assessment based on current evidence in order to determine if 
your functional capacity for basic work activities has increased. There 
will be no attempt made to reassess the prior residual functional 
capacity.
    (iii) Prior residual functional capacity assessment should have been 
made, but was not. If the most recent favorable medical decision should 
have contained an assessment of your residual functional capacity (i.e., 
your impairments did not meet or equal the level of severity 
contemplated by the Listing of Impairments in appendix 1 of this 
subpart) but does not, either because this assessment is missing from 
your file or because it was not done, we will reconstruct the residual 
functional capacity. This reconstructed residual functional capacity 
will accurately and objectively assess your functional capacity to do 
basic work activities. We will assign the maximum functional capacity 
consistent with an allowance.
    Example:  You were previously found to be disabled on the basis that 
``while your impairment did not meet or equal a listing, it did prevent 
you from doing your past or any other work.'' The prior adjudicator did 
not, however, include a residual functional capacity assessment in the 
rationale of this decision and a review of the prior evidence does not 
show that such an assessment was ever made. If a decrease in medical 
severity, i.e., medical improvement, has occurred, the residual 
functional capacity based on the current level of severity of your 
impairment will have to be compared with your residual functional 
capacity based on its prior severity in order to determine if the 
medical improvement is related to your ability to do work. In order to 
make this comparison, we will review the prior evidence and make an 
objective assessment of your residual functional capacity at the time of 
our most recent favorable medical determination, based on the symptoms, 
signs and laboratory findings as they then existed.
    (iv) Impairment subject to temporary remission. In some cases the 
evidence shows that an individual's impairments are subject to temporary 
remission. In assessing whether medical improvement has occurred in 
persons with this type of impairment, we will be careful to consider the 
longitudinal history of the impairments, including the occurrence of 
prior remission, and prospects for future worsenings. Improvement in 
such impairments that is only temporary will not warrant a finding of 
medical improvement.
    (v) Prior file cannot be located. If the prior file cannot be 
located, we will first determine whether you are able to now engage in 
substantial gainful activity based on all your current impairments. (In 
this way, we will be able to determine that your disability continues at 
the earliest point without addressing the often lengthy process of 
reconstructing prior evidence.) If you cannot engage in substantial 
gainful activity currently, your benefits will continue unless one of 
the second group of exceptions applies (see paragraph (e) of this 
section). If you are able to engage in substantial gainful activity, we 
will determine whether an attempt should be made to reconstruct those 
portions of the missing file that were relevant to our most recent 
favorable medical decision (e.g., work history, medical evidence from 
treating sources and the results of consultative examinations). This 
determination will consider the potential availability of old records in 
light of their age, whether the source of the evidence is still in 
operation; and whether reconstruction efforts will yield a complete 
record of the basis for the most recent favorable medical decision. If 
relevant parts of the prior record are not reconstructed either because 
it is determined not to attempt reconstruction or because such efforts 
fail, medical improvement cannot be found. The documentation of your 
current impairments will provide a basis for any future reviews. If the 
missing file is later found, it may serve as a basis for reopening any 
decision under this section in accordance with the rules in 
Sec. 404.988.
    (d) First group of exceptions to medical improvement. The law 
provides for certain limited situations when your disability can be 
found to have ended even though medical improvement has not occurred, if 
you can engage in substantial gainful activity. These exceptions

[[Page 400]]

to medical improvement are intended to provide a way of finding that a 
person is no longer disabled in those limited situations where, even 
though there has been no decrease in severity of the impairment(s), 
evidence shows that the person should no longer be considered disabled 
or never should have been considered disabled. If one of these 
exceptions applies, we must also show that, taking all your current 
impairment(s) into account, not just those that existed at the time of 
our most recent favorable medical decision, you are now able to engage 
in substantial gainful activity before your disability can be found to 
have ended. As part of the review process, you will be asked about any 
medical or vocational therapy you received or are receiving. Your 
answers and the evidence gathered as a result as well as all other 
evidence, will serve as the basis for the finding that an exception 
applies.
    (1) Substantial evidence shows that you are the beneficiary of 
advances in medical or vocational therapy or technology (related to your 
ability to work). Advances in medical or vocational therapy or 
technology are improvements in treatment or rehabilitative methods which 
have increased your ability to do basic work activities. We will apply 
this exception when substantial evidence shows that you have been the 
beneficiary of services which reflect these advances and they have 
favorably affected the severity of your impairment or your ability to do 
basic work activities. This decision will be based on new medical 
evidence and a new residual functional capacity assessment. (See 
Sec. 404.1545.) In many instances, an advanced medical therapy or 
technology will result in a decrease in severity as shown by symptoms, 
signs and laboratory findings which will meet the definition of medical 
improvement. This exception will, therefore, see very limited 
application.
    (2) Substantial evidence shows that you have undergone vocational 
therapy (related to your ability to work). Vocational therapy (related 
to your ability to work) may include, but is not limited to, additional 
education, training, or work experience that improves your ability to 
meet the vocational requirements of more jobs. This decision will be 
based on substantial evidence which includes new medical evidence and a 
new residual functional capacity assessment. (See Sec. 404.1545.) If, at 
the time of our review you have not completed vocational therapy which 
could affect the continuance of your disability, we will review your 
claim upon completion of the therapy.
    Example 1:  You were found to be disabled because the limitations 
imposed on you by your impairment allowed you to only do work that was 
at a sedentary level of exertion. Your prior work experience was work 
that required a medium level of exertion. Your age and education at the 
time would not have qualified you for work that was below this medium 
level of exertion. You enrolled in and completed a specialized training 
course which qualifies you for a job in data processing as a computer 
programmer in the period since you were awarded benefits. On review of 
your claim, current evidence shows that there is no medical improvement 
and that you can still do only sedentary work. As the work of a computer 
programmer is sedentary in nature, you are now able to engage in 
substantial gainful activity when your new skills are considered.
    Example 2:  You were previously entitled to benefits because the 
medical evidence and assessment of your residual functional capacity 
showed you could only do light work. Your prior work was considered to 
be heavy in nature and your age, education and the nature of your prior 
work qualified you for work which was no less than medium in exertion. 
The current evidence and residual functional capacity show there has 
been no medical improvement and that you can still do only light work. 
Since you were originally entitled to benefits, your vocational 
rehabilitation agency enrolled you in and you successfully completed a 
trade school course so that you are now qualified to do small appliance 
repair. This work is light in nature, so when your new skills are 
considered, you are now able to engage in substantial gainful activity 
even though there has been no change in your residual functional 
capacity.
    (3) Substantial evidence shows that based on new or improved 
diagnostic or evaluative techniques your impairment(s) is not as 
disabling as it was considered to be at the time of the most recent 
favorable decision. Changing methodologies and advances in medical and 
other diagnostic or evaluative techniques have given, and will continue 
to give, rise to improved methods for measuring and documenting the 
effect of various impairments on the ability to do work.

[[Page 401]]

Where, by such new or improved methods, substantial evidence shows that 
your impairment(s) is not as severe as was determined at the time of our 
most recent favorable medical decision, such evidence may serve as a 
basis for finding that you are no longer disabled, if you can currently 
engage in substantial gainful activity. In order to be used under this 
exception, however, the new or improved techniques must have become 
generally available after the date of our most recent favorable medical 
decision.
    (i) How we will determine which methods are new or improved 
techniques and when they become generally available. New or improved 
diagnostic techniques or evaluations will come to our attention by 
several methods. In reviewing cases, we often become aware of new 
techniques when their results are presented as evidence. Such techniques 
and evaluations are also discussed and acknowledged in medical 
literature by medical professional groups and other governmental 
entities. Through these sources, we develop listings of new techniques 
and when they become generally available. For example, we will consult 
the Health Care Financing Administration for its experience regarding 
when a technique is recognized for payment under Medicare and when they 
began paying for the technique.
    (ii) How you will know which methods are new or improved techniques 
and when they become generally available. We will let you know which 
methods we consider to be new or improved techniques and when they 
become available through two vehicles.
    (A) Some of the future changes in the Listing of Impairments in 
appendix 1 of this subpart will be based on new or improved diagnostic 
or evaluative techniques. Such listings changes will clearly state this 
fact as they are published as Notices of Proposed Rulemaking and the new 
or improved technique will be considered generally available as of the 
date of the final publication of that particular listing in the Federal 
Register.
    (B) A cumulative list since 1970 of new or improved diagnostic 
techniques or evaluations, how they changed the evaluation of the 
applicable impairment and the month and year they became generally 
available, will be published in the Notices section of the Federal 
Register. Included will be any changes in the Listing of Impairments 
published in the Code of Federal Regulations since 1970 which are 
reflective of new or improved techniques. No cases will be processed 
under this exception until this cumulative listing is so published. 
Subsequent changes to the list will be published periodically. The 
period will be determined by the volume of changes needed.
    Example:  The electrocardiographic exercise test has replaced the 
Master's 2-step test as a measurement of heart function since the time 
of your last favorable medical decision. Current evidence could show 
that your condition, which was previously evaluated based on the 
Master's 2-step test, is not now as disabling as was previously thought. 
If, taking all your current impairments into account, you are now able 
to engage in substantial gainful activity, this exception would be used 
to find that you are no longer disabled even if medical improvement has 
not occurred.
    (4) Substantial evidence demonstrates that any prior disability 
decision was in error. We will apply the exception to medical 
improvement based on error if substantial evidence (which may be 
evidence on the record at the time any prior determination of the 
entitlement to benefits based on disability was made, or newly obtained 
evidence which relates to that determination) demonstrates that a prior 
determination was in error. A prior determination will be found in error 
only if:
    (i) Substantial evidence shows on its face that the decision in 
question should not have been made (e.g., the evidence in your file such 
as pulmonary function study values was misread or an adjudicative 
standard such as a listing in appendix 1 or a medical/vocational rule in 
appendix 2 of this subpart was misapplied).
    Example 1:  You were granted benefits when it was determined that 
your epilepsy met Listing 11.02. This listing calls for a finding of 
major motor seizures more frequently than once a month as documented by 
EEG evidence and by a detailed description of a typical seizure pattern. 
A history of either diurnal episodes or nocturnal episodes with 
residuals interfering with daily activities is also required. On review, 
it is found that a history of the frequency of your seizures showed that 
they occurred only once or twice a year. The prior decision would be

[[Page 402]]

found to be in error, and whether you were still considered to be 
disabled would be based on whether you could currently engage in 
substantial gainful activity.
    Example 2:  Your prior award of benefits was based on vocational 
rule 201.12 in appendix 2 of this subpart. This rule applies to a person 
age 50-54 who has at least a high school education, whose previous work 
was entirely at a semiskilled level, and who can do only sedentary work. 
On review, it is found that at the time of the prior determination you 
were actually only age 46 and vocational rule 201.21 should have been 
used. This rule would have called for a denial of your claim and the 
prior decision is found to have been in error. Continuation of your 
disability would depend on a finding of your current ability to engage 
in substantial gainful activity.
    (ii) At the time of the prior evaluation, required and material 
evidence of the severity of your impairment(s) was missing. That 
evidence becomes available upon review, and substantial evidence 
demonstrates that had such evidence been present at the time of the 
prior determination, disability would not have been found.
    Example:  You were found disabled on the basis of chronic 
obstructive pulmonary disease. The severity of your impairment was 
documented primarily by pulmonary function testing results. The evidence 
showed that you could do only light work. Spirometric tracings of this 
testing, although required, were not obtained, however. On review, the 
original report is resubmitted by the consultative examining physician 
along with the corresponding spirometric tracings. A review of the 
tracings shows that the test was invalid. Current pulmonary function 
testing supported by spirometric tracings reveals that your impairment 
does not limit your ability to perform basic work activities in any way. 
Error is found based on the fact that required, material evidence which 
was originally missing now becomes available and shows that if it had 
been available at the time of the prior determination, disability would 
not have been found.
    (iii) Substantial evidence which is new evidence which relates to 
the prior determination (of allowance or continuance) refutes the 
conclusions that were based upon the prior evidence (e.g., a tumor 
thought to be malignant was later shown to have actually been benign). 
Substantial evidence must show that had the new evidence (which relates 
to the prior determination) been considered at the time of the prior 
decision, the claim would not have been allowed or continued. A 
substitution of current judgment for that used in the prior favorable 
decision will not be the basis for applying this exception.
    Example:  You were previously found entitled to benefits on the 
basis of diabetes mellitus which the prior adjudicator believed was 
equivalent to the level of severity contemplated in the Listing of 
Impairments. The prior record shows that you had ``brittle'' diabetes 
for which you were taking insulin. Your urine was 3+ for sugar, and you 
alleged occasional hypoglycemic attacks caused by exertion. On review, 
symptoms, signs and laboratory findings are unchanged. The current 
adjudicator feels, however, that your impairment clearly does not equal 
the severity contemplated by the listings. Error cannot be found because 
it would represent a substitution of current judgment for that of the 
prior adjudicator that your impairment equaled a listing.
    (iv) The exception for error will not be applied retroactively under 
the conditions set out above unless the conditions for reopening the 
prior decision (see Sec. 404.988) are met.
    (5) You are currently engaging in substantial gainful activity. If 
you are currently engaging in substantial gainful activity before we 
determine whether you are no longer disabled because of your work 
activity, we will consider whether you are entitled to a trial work 
period as set out in Sec. 404.1592. We will find that your disability 
has ended in the month in which you demonstrated your ability to engage 
in substantial gainful activity (following completion of a trial work 
period, where it applies). This exception does not apply in determining 
whether you continue to have a disabling impairment(s) (Sec. 404.1511) 
for purposes of deciding your eligibility for a reentitlement period 
(Sec. 404.1592a).
    (e) Second group of exceptions to medical improvement. In addition 
to the first group of exceptions to medical improvement, the following 
exceptions may result in a determination that you are no longer 
disabled. In these situations the decision will be made without a 
determination that you have medically improved or can engage in 
substantial gainful activity.
    (1) A prior determination or decision was fraudulently obtained. If 
we find that any prior favorable determination or decision was obtained 
by fraud, we may find that you are not disabled. In addition, we may 
reopen your claim

[[Page 403]]

under the rules in Sec. 404.988. In determining whether a prior 
favorable determination or decision was fraudulently obtained, we will 
take into account any physical, mental, educational, or linguistic 
limitations (including any lack of facility with the English language) 
which you may have had at the time.
    (2) You do not cooperate with us. If there is a question about 
whether you continue to be disabled and we ask you to give us medical or 
other evidence or to go for a physical or mental examination by a 
certain date, we will find that your disability has ended if you fail, 
without good cause, to do what we ask. Section 404.911 explains the 
factors we consider and how we will determine generally whether you have 
good cause for failure to cooperate. In addition, Sec. 404.1518 
discusses how we determine whether you have good cause for failing to 
attend a consultative examination. The month in which your disability 
ends will be the first month in which you failed to do what we asked.
    (3) We are unable to find you. If there is a question about whether 
you continue to be disabled and we are unable to find you to resolve the 
question, we will determine that your disability has ended. The month 
your disability ends will be the first month in which the question arose 
and we could not find you.
    (4) You fail to follow prescribed treatment which would be expected 
to restore your ability to engage in substantial gainful activity. If 
treatment has been prescribed for you which would be expected to restore 
your ability to work, you must follow that treatment in order to be paid 
benefits. If you are not following that treatment and you do not have 
good cause for failing to follow that treatment, we will find that your 
disability has ended (see Sec. 404.1530(c)). The month your disability 
ends will be the first month in which you failed to follow the 
prescribed treatment.
    (f) Evaluation steps. To assure that disability reviews are carried 
out in a uniform manner, that decisions of continuing disability can be 
made in the most expeditious and administratively efficient way, and 
that any decisions to stop disability benefits are made objectively, 
neutrally and are fully documented, we will follow specific steps in 
reviewing the question of whether your disability continues. Our review 
may cease and benefits may be continued at any point if we determine 
there is sufficient evidence to find that you are still unable to engage 
in substantial gainful activity. The steps are:
    (1) Are you engaging in substantial gainful activity? If you are 
(and any applicable trial work period has been completed), we will find 
disability to have ended (see paragraph (d)(5) of this section).
    (2) If you are not, do you have an impairment or combination of 
impairments which meets or equals the severity of an impairment listed 
in appendix 1 of this subpart? If you do, your disability will be found 
to continue.
    (3) If you do not, has there been medical improvement as defined in 
paragraph (b)(1) of this section? If there has been medical improvement 
as shown by a decrease in medical severity, see step (4). If there has 
been no decrease in medical severity, there has been no medical 
improvement. (See step (5).)
    (4) If there has been medical improvement, we must determine whether 
it is related to your ability to do work in accordance with paragraphs 
(b)(1) through (4) of this section; i.e., whether or not there has been 
an increase in the residual functional capacity based on the 
impairment(s) that was present at the time of the most recent favorable 
medical determination. If medical improvement is not related to your 
ability to do work, see step (5). If medical improvement is related to 
your ability to do work, see step (6).
    (5) If we found at step (3) that there has been no medical 
improvement or if we found at step (4) that the medical improvement is 
not related to your ability to work, we consider whether any of the 
exceptions in paragraphs (d) and (e) of this section apply. If none of 
them apply, your disability will be found to continue. If one of the 
first group of exceptions to medical improvement applies, see step (6). 
If an exception from the second group of exceptions to medical 
improvement applies, your disability will be found to

[[Page 404]]

have ended. The second group of exceptions to medical improvement may be 
considered at any point in this process.
    (6) If medical improvement is shown to be related to your ability to 
do work or if one of the first group of exceptions to medical 
improvement applies, we will determine whether all your current 
impairments in combination are severe (see Sec. 404.1521). This 
determination will consider all your current impairments and the impact 
of the combination of those impairments on your ability to function. If 
the residual functional capacity assessment in step (4) above shows 
significant limitation of your ability to do basic work activities, see 
step (7). When the evidence shows that all your current impairments in 
combination do not significantly limit your physical or mental abilities 
to do basic work activities, these impairments will not be considered 
severe in nature. If so, you will no longer be considered to be 
disabled.
    (7) If your impairment(s) is severe, we will assess your current 
ability to engage in substantial gainful activity in accordance with 
Sec. 404.1561. That is we will assess your residual functional capacity 
based on all your current impairments and consider whether you can still 
do work you have done in the past. If you can do such work, disability 
will be found to have ended.
    (8) If you are not able to do work you have done in the past, we 
will consider one final step. Given the residual functional capacity 
assessment and considering your age, education and past work experience, 
can you do other work? If you can, disability will be found to have 
ended. If you cannot, disability will be found to continue.
    (g) The month in which we will find you are no longer disabled. If 
the evidence shows that you are no longer disabled, we will find that 
your disability ended in the earliest of the following months.
    (1) The month the evidence shows you are no longer disabled under 
the rules set out in this section, and you were disabled only for a 
specified period of time in the past;
    (2) The month the evidence shows you are no longer disabled under 
the rules set out in this section, but not earlier than the month in 
which we mail you a notice saying that the information we have shows 
that you are not disabled;
    (3) The month in which you demonstrated your ability to engage in 
substantial gainful activity (following completion of a trial work 
period); however, we may pay you benefits for certain months in and 
after the reentitlement period which follows the trial work period. (See 
Sec. 404.1592a for a discussion of the reentitlement period. If you are 
receiving benefits on your own earnings record, see Sec. 404.316 for 
when your benefits will end. See Sec. 404.352 if you are receiving 
benefits on a parent's earnings as a disabled adult child.);
    (4) The month in which you actually do substantial gainful activity 
(where you are not entitled to a trial work period);
    (5) The month in which you return to full-time work, with no 
significant medical restrictions and acknowledge that medical 
improvement has occurred, and we expected your impairment(s) to improve 
(see Sec. 404.1591);
    (6) The first month in which you failed without good cause to do 
what we asked, when the rule set out in paragraph (e)(2) of this section 
applies;
    (7) The first month in which the question of continuing disability 
arose and we could not find you, when the rule set out in paragraph 
(e)(3) of this section applies;
    (8) The first month in which you failed without good cause to follow 
prescribed treatment, when the rule set out in paragraph (e)(4) of this 
section applies; or
    (9) The first month you were told by your physician that you could 
return to work provided there is no substantial conflict between your 
physician's and your statements regarding your awareness of your 
capacity for work and the earlier date is supported by the medical 
evidence.
    (h) Before we stop your benefits. Before we stop your benefits or a 
period of disability, we will give you a chance to explain why we should 
not do so. Sections 404.1595 and 404.1597 describe your

[[Page 405]]

rights (including appeal rights) and the procedures we will follow.

[50 FR 50130, Dec. 6, 1985; 51 FR 7063, Feb. 28, 1986; 51 FR 16015, Apr. 
30, 1986, as amended at 52 FR 44971, Nov. 24, 1987; 57 FR 30121, July 8, 
1992; 59 FR 1635, Jan. 12, 1994]



Sec. 404.1595  When we determine that you are not now disabled.

    (a) When we will give you advance notice. Except in those 
circumstances described in paragraph (d) of this section, we will give 
you advance notice when we have determined that you are not now disabled 
because the information we have conflicts with what you have told us 
about your disability. If your dependents are receiving benefits on your 
Social Security number and do not live with you, we will also give them 
advance notice. To give you advance notice, we will contact you by mail, 
telephone or in person.
    (b) What the advance notice will tell you. We will give you a 
summary of the information we have. We will also tell you why we have 
determined that you are not now disabled, and will give you a chance to 
reply. If it is because of--
    (1) Medical reasons. The advance notice will tell you what the 
medical information in your file shows;
    (2) Your work activity. The advance notice will tell you what 
information we have about the work you are doing or have done, and why 
this work shows that you are not disabled; or
    (3) Your failure to give us information we need or do what we ask. 
The advance notice will tell you what information we need and why we 
need it or what you have to do and why.
    (c) What you should do if you receive an advance notice. If you 
agree with the advance notice, you do not need to take any action. If 
you desire further information or disagree with what we have told you, 
you should immediately write or telephone the State agency or the social 
security office that gave you the advance notice or you may visit any 
social security office. If you believe you are now disabled, you should 
tell us why. You may give us any additional or new information, 
including reports from your doctors, hospitals, employers or others, 
that you believe we should have. You should send these as soon as 
possible to the local social security office or to the office that gave 
you the advance notice. We consider 10 days to be enough time for you to 
tell us, although we will allow you more time if you need it. You will 
have to ask for additional time beyond 10 days if you need it.
    (d) When we will not give you advance notice. We will not give you 
advance notice when we determine that you are not disabled if--
    (1) We recently told you that the information we have shows that you 
are not now disabled, that we were gathering more information, and that 
your benefits will stop; or
    (2) We are stopping your benefits because you told us you are not 
now disabled; or
    (3) We recently told you that continuing your benefits would 
probably cause us to overpay you and you asked us to stop your benefits.



Sec. 404.1596  Circumstances under which we may suspend your benefits before we make a determination.

    (a) General. Under some circumstances, we may stop your benefits 
before we make a determination. Generally, we do this when the 
information we have clearly shows you are not now disabled but we cannot 
determine when your disability ended. These situations are described in 
paragraph (b)(1) and other reasons are given in paragraph (b)(2) of this 
section. We refer to this as a suspension of benefits. Your benefits, as 
well as those of your dependents (regardless of where they receive their 
benefits), may be suspended. When we do this we will give you advance 
notice. (See Sec. 404.1595.) We will contact your spouse and children if 
they are receiving benefits on your Social Security number, and the 
benefits are being mailed to an address different from your own.
    (b) When we will suspend your benefits--(1) You are not now 
disabled. We will suspend your benefits if the information we have 
clearly shows that you are not disabled and we will be unable to 
complete a determination soon enough to prevent us from paying you more 
monthly benefits than you are entitled to. This may occur when--
    (i) New medical or other information clearly shows that you are able 
to do

[[Page 406]]

substantial gainful activity and your benefits should have stopped more 
than 2 months ago;
    (ii) You completed a 9-month period of trial work more than 2 months 
ago and you are still working;
    (iii) At the time you filed for benefits your condition was expected 
to improve and you were expected to be able to return to work. You 
subsequently did return to work more than 2 months ago with no 
significant medical restrictions; or
    (iv) You are not entitled to a trial work period and you are 
working.
    (2) Other reasons. We will also suspend your benefits if--
    (i) You have failed to respond to our request for additional medical 
or other evidence and we are satisfied that you received our request and 
our records show that you should be able to respond.
    (ii) We are unable to locate you and your checks have been returned 
by the Post Office as undeliverable; or
    (iii) You refuse to accept vocational rehabilitation services 
without a good reason. Section 404.422 gives you examples of good 
reasons for refusing to accept vocational rehabilitation services.
    (c) When we will not suspend your cash benefits. We will not suspend 
your cash benefits if--
    (1) The evidence in your file does not clearly show that you are not 
disabled;
    (2) We have asked you to furnish additional information;
    (3) You have become disabled by another impairment; or
    (4) After November 1980, even though your impairment is no longer 
disabling,
    (i) You are participating in an appropriate vocational 
rehabilitation program (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) which you 
began during your disability,
    (ii) Your disability did not end before December 1, 1980, and
    (iii) 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.

[45 FR 55584, Aug. 20, 1980, as amended at 47 FR 31543, July 21, 1982; 
47 FR 52693, Nov. 23, 1982; 51 FR 17617, May 14, 1986]



Sec. 404.1597  After we make a determination that you are not now disabled.

    (a) General. If we determine that you do not meet the disability 
requirements of the law, your benefits generally will stop. We will send 
you a formal written notice telling you why we believe you are not 
disabled and when your benefits should stop. If your spouse and children 
are receiving benefits on your Social Security number, we will also stop 
their benefits and tell them why. The notices will explain your right to 
reconsideration if you disagree with our determination. However, your 
benefits may continue after November 1980 even though your impairment is 
no longer disabling, if your disability did not end before December 
1980, and you are particpating in an appropriate vocational 
rehabilitation program as described in Sec. 404.1596 which you began 
before your disability ended. In addition, we must 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. You 
may still appeal our determination that you are not disabled even though 
your benefits are continuing because of your participation in an 
appropriate vocational rehabilitation program. You may also appeal a 
determination that your completion or of continuation for a specified 
period of time in an appropriate vocational rehabilitation program will 
not significantly increase the likelihood that you will not have to 
return to the disability benefit rolls and, therefore, you are not 
entitled to continue to receive benefits.
    (b) If we make a determination that your physical or mental 
impairment(s) has ceased, did not exist, or is no longer disabling 
(Medical Cessation Determination). If we make a determination that the 
physical or mental impairment(s) on the basis of which benefits were 
payable has ceased, did not exist, or is no longer disabling (a medical 
cessation

[[Page 407]]

determination), your benefits will stop. As described in paragraph (a) 
of this section, you will receive a written notice explaining this 
determination and the month your benefits will stop. The written notice 
will also explain your right to appeal if you disagree with our 
determination and your right to request that your benefits and the 
benefits, if any, of your spouse or children, be continued under 
Sec. 404.1597a. For the purpose of this section, benefits means 
disability cash payments and/or Medicare, if applicable. The continued 
benefit provisions of this section do not apply to an initial 
determination on an application for disability benefits, or to a 
determination that you were disabled only for a specified period of 
time.

[47 FR 31544, July 21, 1982, as amended at 51 FR 17618, May 14, 1986; 53 
FR 29020, Aug. 2, 1988; 53 FR 39015, Oct. 4, 1988]



Sec. 404.1597a  Continued benefits pending appeal of a medical cessation determination.

    (a) General. If we determine that you are not entitled to benefits 
because the physical or mental impairment(s) on the basis of which such 
benefits were payable is found to have ceased, not to have existed, or 
to no longer be disabling, and you appeal that determination, you may 
choose to have your benefits continued pending reconsideration and/or a 
hearing before an administrative law judge on the disability cessation 
determination. For the purpose of this entire section, the election of 
continued benefits means the election of disability cash payments and/or 
Medicare, if applicable. You can also choose to have the benefits 
continued for anyone else receiving benefits based on your wages and 
self-employment income (and anyone else receiving benefits because of 
your entitlement to benefits based on disability). If you appeal a 
medical cessation under both title II and title XVI (a concurrent case), 
the title II claim will be handled in accordance with title II 
regulations while the title XVI claim will be handled in accordance with 
the title XVI regulations.
    (b) When the provisions of this section are available. (1) Benefits 
may be continued under this section only if the determination that your 
physical or mental impairment(s) has ceased, has never existed, or is no 
longer disabling is made on or after January 12, 1983 (or before January 
12, 1983, and a timely request for reconsideration or a hearing before 
an administrative law judge is pending on that date).
    (2) Benefits may be continued under this section only for months 
beginning with January 1983, or the first month for which benefits are 
no longer otherwise payable following our determination that your 
physical or mental impairment(s) has ceased, has never existed, or is no 
longer disabling, whichever is later.
    (3) Continued payment of benefits under this section will stop 
effective with the earlier of:
    (i) The month before the month in which an administrative law 
judge's hearing decision finds that your physical or mental 
impairment(s) has ceased, has never existed, or is no longer disabling 
or the month before the month of a new administrative law judge decision 
(or final action by the Appeals Council on the administrative law 
judge's recommended decision) if your case was sent back to an 
administrative law judge for further action; or
    (ii) The month before the month no timely request for a 
reconsideration or a hearing before an administrative law judge is 
pending. These continued benefits may be stopped or adjusted because of 
certain events (such as work and earnings or receipt of worker's 
compensation) which occur while you are receiving these continued 
benefits and affect your right to receive continued benefits.


These continued benefits may be stopped or adjusted because of certain 
events (such as work and earning or receipt of worker's compensation) 
which occur while you are receiving these continued benefits and affect 
your right to receive continued benefits.
    (c) Continuation of benefits for anyone else pending your appeal. 
(1) When you file a request for reconsideration or hearing before an 
administrative law judge on our determination that your physical or 
mental impairment(s) has ceased, has never existed, or is no longer 
disabling, or your case has been

[[Page 408]]

sent back (remanded) to an administrative law judge for further action, 
you may also choose to have benefits continue for anyone else who is 
receiving benefits based on your wages and self-employment income (and 
for anyone else receiving benefits because of your entitlement to 
benefits based on disability), pending the outcome of your appeal.
    (2) If anyone else is receiving benefits based on your wages and 
self-employment income, we will notify him or her of the right to choose 
to have his or her benefits continue pending the outcome of your appeal. 
Such benefits can be continued for the time period in paragraph (b) of 
this section only if he or she chooses to have benefits continued and 
you also choose to have his or her benefits continued.
    (d) Statement of choice. When you or another party request 
reconsideration under Sec. 404.908(a) or a hearing before an 
administrative law judge under Sec. 404.932(a) on our determination that 
your physical or mental impairment(s) has ceased, has never existed, or 
is no longer disabling, or if your case is sent back (remanded) to an 
administrative law judge for further action, we will explain your right 
to receive continued benefits and ask you to complete a statement 
specifying which benefits you wish to have continued pending the outcome 
of the reconsideration or hearing before an administrative law judge. 
You may elect to receive only Medicare benefits during appeal even if 
you do not want to receive continued disability benefits. If anyone else 
is receiving benefits based on your wages and self-employment income (or 
because of your entitlement to benefits based on disability), we will 
ask you to complete a statement specifying which benefits you wish to 
have continued for them, pending the outcome of the request for 
reconsideration or hearing before an administrative law judge. If you 
request appeal but you do not want to receive continued benefits, we 
will ask you to complete a statement declining continued benefits 
indicating that you do not want to have your benefits and those of your 
family, if any, continued during the appeal.
    (e) Your spouse's or children's statement of choice. If you request, 
in accordance with paragraph (d) of this section, that benefits also be 
continued for anyone who had been receiving benefits based on your wages 
and self-employment, we will send them a written notice. The notice will 
explain their rights and ask them to complete a statement either 
declining continued benefits, or specifying which benefits they wish to 
have continued, pending the outcome of the request for reconsideration 
or a hearing before an administrative law judge.
    (f) What you must do to receive continued benefits pending notice of 
our reconsideration determination. (1) If you want to receive continued 
benefits pending the outcome of your request for reconsideration, you 
must request reconsideration and continuation of benefits no later than 
10 days after the date you receive the notice of our initial 
determination that your physical or mental impairment(s) has ceased, has 
never existed, or is no longer disabling. Reconsideration must be 
requested as provided in Sec. 404.909, and you must request continued 
benefits using a statement in accordance with paragraph (d) of this 
section.
    (2) If you fail to request reconsideration and continued benefits 
within the 10-day period required by paragraph (f)(1) of this section, 
but later ask that we continue your benefits pending a reconsidered 
determination, we will use the rules in Sec. 404.911 to determine 
whether good cause exists for your failing to request benefit 
continuation within 10 days after receipt of the notice of the initial 
cessation determination. If you request continued benefits after the 10-
day period, we will consider the request to be timely and will pay 
continued benefits only if good cause for delay is established.
    (g) What you must do to receive continued benefits pending an 
administrative law judge's decision. (1) To receive continued benefits 
pending an administrative law judge's decision on our reconsideration 
determination, you must request a hearing and continuation of benefits 
no later than 10 days after the date you receive the notice of our 
reconsideration determination that your physical or mental impairment(s) 
has ceased, has never existed, or is no

[[Page 409]]

longer disabling. A hearing must be requested as provided in 
Sec. 404.933, and you must request continued benefits using a statement 
in accordance with paragraph (d) of this section.
    (2) If you request continued benefits pending an administrative law 
judge's decision but did not request continued benefits while we were 
reconsidering the initial cessation determination, your benefits will 
begin effective the month of the reconsideration determination.
    (3) If you fail to request continued payment of benefits within the 
10-day period required by paragraph (g)(1) of this section, but you 
later ask that we continue your benefits pending an administrative law 
judge's decision on our reconsidered determination, we will use the 
rules as provided in Sec. 404.911 to determine whether good cause exists 
for your failing to request benefit continuation within 10 days after 
receipt of the reconsideration determination. If you request continued 
benefits after the 10-day period, we will consider the request to be 
timely and will pay continued benefits only if good cause for delay is 
established.
    (h) What anyone else must do to receive continued benefits pending 
our reconsideration determination or an administrative law judge's 
decision. (1) When you or another party (see Secs. 404.908(a) and 
404.932(a)) request a reconsideration or a hearing before an 
administrative law judge on our medical cessation determination or when 
your case is sent back (remanded) to an administrative law judge for 
further action, you may choose to have benefits continue for anyone else 
who is receiving benefits based on your wages and self-employment 
income. An eligible individual must also choose whether or not to have 
his or her benefits continue pending your appeal by completing a 
separate statement of election as described in paragraph (e) of this 
section.
    (2) He or she must request continuation of benefits no later than 10 
days after the date he or she receives notice of termination of 
benefits. He or she will then receive continued benefits beginning with 
the later of January 1983, or the first month for which benefits are no 
longer otherwise payable following our initial or reconsideration 
determination that your physical or mental impairment(s) has ceased, has 
never existed, or is no longer disabling. Continued benefits will 
continue until the earlier of:
    (i) The month before the month in which an administrative law 
judge's hearing decision finds that your physical or mental 
impairment(s) has ceased, has never existed, or is no longer disabling 
or the month before the month of the new administrative law judge 
decision (or final action is taken by the Appeals Council on the 
administrative law judge's recommended decision) if your case was sent 
back to an administrative law judge for further action; or
    (ii) The month before the month no timely request for a 
reconsideration or a hearing before an administrative law judge is 
pending. These continued benefits may be stopped or adjusted because of 
certain events (such as work and earnings or payment of worker's 
compensation) which occur while an eligible individual is receiving 
continued benefits and affect his or her right to receive continued 
benefits.


These continued benefits may be stopped or adjusted because of certain 
events (such as work and earnings or payment of workers compensation) 
which occur while an eligible individual is receiving continued benefits 
and affect his or her right to receive continued benefits.
    (3) If he or she fails to request continuation of benefits within 
the 10-day period required by this paragraph, but requests continuation 
of benefits at a later date, we will use the rules as provided in 
Sec. 404.911 to determine whether good cause exists for his or her 
failure to request continuation of benefits within 10 days after receipt 
of the notice of termination of his or her benefits. His or her late 
request will be considered to be timely and we will pay him or her 
continued benefits only if good cause for delay is established.
    (4) If you choose not to have benefits continued for anyone else who 
is receiving benefits based on your wages and self-employment income, 
pending the appeal on our determination, we will not continue benefits 
to him or her.

[[Page 410]]

    (i) What you must do when your case is remanded to an administrative 
law judge. If we send back (remand) your case to an administrative law 
judge for further action under the rules provided in Sec. 404.977, and 
the administrative law judge's decision or dismissal order issued on 
your medical cessation appeal is vacated and is no longer in effect, 
continued benefits are payable pending a new decision by the 
administrative law judge or final action is taken by the Appeals Council 
on the administrative law judge's recommended decision.
    (1) If you (and anyone else receiving benefits based on your wages 
and self-employment income or because of your disability) previously 
elected to receive continued benefits pending the administrative law 
judge's decision, we will automatically start these same continued 
benefits again. We will send you a notice telling you this, and that you 
do not have to do anything to have these same benefits continued until 
the month before the month the new decision of order of dismissal is 
issued by the administrative law judge or until the month before the 
month the Appeals Council takes final action on the administrative law 
judge's recommended decision. These benefits will begin again with the 
first month of nonpayment based on the prior administrative law judge 
hearing decision or dismissal order. Our notice explaining reinstatement 
of continued benefits will also tell you to report to us any changes or 
events that affect your receipt of benefits.
    (2) After we automatically reinstate your continued benefits as 
described in paragraph (h)(1) of this section, we will contact you to 
determine if any adjustment is required to the amount of continued 
benefits payable due to events that affect the right to receive benefits 
involving you, your spouse and/or children. If you have returned to 
work, we will request additional information about this work activity. 
If you are working, your continued benefits will not be stopped while 
your appeal of the medical cessation of disability is still pending 
unless you have completed a trial work period and are engaging in 
substantial gainful activity. In this event, we will suspend your 
continued benefits. If any other changes have occurred which would 
require a reduction in benefit amounts, or nonpayment of benefits, we 
will send an advance notice to advise of any adverse change before the 
adjustment action is taken. The notice will also advise you of the right 
to explain why these benefits should not be adjusted or stopped. You 
will also receive a written notice of our determination. The notice will 
also explain your right to reconsideration if you disagree with this 
determination.
    (3) If the final decision on your appeal of your medical cessation 
is a favorable one, we will send you a written notice in which we will 
advise you of your right to benefits, if any, before you engaged in 
substantial gainful activity and to reentitlement should you stop 
performing substantial gainful activity. If you disagree with our 
determination, you will have the right to appeal this decision.
    (4) If the final decision on your appeal of your medical cessation 
is an unfavorable one (the cessation is affirmed), you will also be sent 
a written notice advising you of our determination, and your right to 
appeal if you think we are wrong.
    (5) If you (or the others receiving benefits based on your wages and 
self-employment income or because of your disability) did not previously 
elect to have benefits continued pending an administrative law judge 
decision, and you now want to elect continued benefits, you must request 
to do so no later than 10 days after you receive our notice telling you 
about continued benefits. If you fail to request continued benefits 
within the 10-day period required by paragraph (f)(1) of this section, 
but later ask that we continue your benefits pending an administrative 
law judge remand decision, we will use the rules in Sec. 404.911 to 
determine whether good cause exists for your failing to request benefit 
continuation within 10 days after receipt of the notice telling you 
about benefit continuation. We will consider the request to be timely 
and will pay continued benefits only if good cause for delay is 
established. If you make this new election, benefits may begin with the 
month of the order sending (remanding) your case back to the 
administrative law judge. Before we begin to pay

[[Page 411]]

you continued benefits as described in paragraph (h)(1) of this section 
we will contact you to determine if any adjustment is required to the 
amount of continued benefits payable due to events which may affect your 
right to benefits. If you have returned to work, we will request 
additional information about this work activity. If you are working, 
continued benefits may be started and will not be stopped because of 
your work while your appeal of the medical cessation of your disability 
is still pending unless you have completed a trial work period and are 
engaging in substantial gainful activity. If any changes have occurred 
which establish a basis for not paying continued benefits or a reduction 
in benefit amount, we will send you a notice explaining the adjustment 
or the reason why we cannot pay continued benefits. The notice will also 
explain your right to reconsideration if you disagree with this 
determination. If the final decision on your appeal of your medical 
cessation is a favorable one, we will send you a written notice in which 
we will advise you of your right to benefits, if any, before you engaged 
in substantial gainful activity and to reentitlement should you stop 
performing substantial gainful activity. If you disagree with our 
determination, you will have the right to appeal this decision. If the 
final decision on your appeal of your medical cessation is an 
unfavorable one (the cessation is affirmed), you will also be sent a 
written notice advising you of our determination, and your right to 
appeal if you think we are wrong.
    (6) If a court orders that your case be sent back to us (remanded) 
and your case is sent to an administrative law judge for further action 
under the rules provided in Sec. 404.983, the administrative law judge's 
decision or dismissal order on your medical cessation appeal is vacated 
and is no longer in effect. Continued benefits are payable to you and 
anyone else receiving benefits based on your wages and self-employment 
income or because of your disability pending a new decision by the 
administrative law judge or final action is taken by the Appeals Council 
on the administrative law judge's recommended decision. In these court-
remanded cases reaching the administrative law judge, we will follow the 
same rules provided in paragraphs (i) (1), (2), (3), (4) and (5) of this 
section.
    (j) Responsibility to pay back continued benefits. (1) If the final 
decision of the Secretary affirms the determination that you are not 
entitled to benefits, you will be asked to pay back any continued 
benefits you receive. However, as described in the overpayment recovery 
and waiver provisions of subpart F of this part, you will have the right 
to ask that you not be required to pay back the benefits. You will not 
be asked to pay back any Medicare benefits you received during the 
appeal.
    (2) Anyone else receiving benefits based on your wages and self-
employment income (or because of your disability) will be asked to pay 
back any continued benefits he or she received if the determination that 
your physical or mental impairment(s) has ceased, has never existed, or 
is no longer disabling, is not changed by the final decision of the 
Secretary. However, he or she will have the right to ask that he or she 
not be required to pay them back, as described in the overpayment 
recovery and waiver provisions of subpart F of this part. He or she will 
not be asked to pay back any Medicare benefits he or she received during 
the appeal.
    (3) Waiver of recovery of an overpayment resulting from the 
continued benefits paid to you or anyone else receiving benefits based 
on your wages and self-employment income (or because of your disability) 
may be considered as long as the determination was appealed in good 
faith. It will be assumed that such appeal is made in good faith and, 
therefore, any overpaid individual has the right to waiver consideration 
unless such individual fails to cooperate in connection with the appeal, 
e.g., if the individual fails (without good reason) to give us medical 
or other evidence we request, or to go for a physical or mental 
examination when requested by us, in connection with the appeal. In 
determining whether an individual has good cause for failure to 
cooperate and, thus, whether an appeal was made in good faith, we will 
take into account any physical, mental, educational, or linguistic 
limitations (including any

[[Page 412]]

lack of facility with the English language) the individual may have 
which may have caused the individual's failure to cooperate.

[53 FR 29020, Aug. 2, 1988; 53 FR 39015, Oct. 4, 1988, as amended at 57 
FR 1383, Jan. 14, 1992; 59 FR 1635, Jan. 12, 1994]



Sec. 404.1598  If you become disabled by another impairment(s).

    If a new severe impairment(s) begins in or before the month in which 
your last impairment(s) ends, we will find that your disability is 
continuing. The new impairment(s) need not be expected to last 12 months 
or to result in death, but it must be severe enough to keep you from 
doing substantial gainful activity, or severe enough so that you are 
still disabled under Sec. 404.1594.

[50 FR 50136, Dec. 6, 1985]



Sec. 404.1599  Work incentive experiments and rehabilitation demonstration projects in the disability program.

    (a) Authority and purpose. Section 505(a) of the Social Security 
Disability Amendments of 1980, Pub. L. 96-265, directs the Secretary to 
develop and conduct experiments and demonstration projects designed to 
provide more cost-effective ways of encouraging disabled beneficiaries 
to return to work and leave benefit rolls. These experiments and 
demonstration projects will test the advantages and disadvantages of 
altering certain limitations and conditions that apply to title II 
disabled beneficiaries. The objective of all work incentive experiments 
or rehabilitation demonstrations is to determine whether the alternative 
requirements will save Trust Fund monies or otherwise improve the 
administration of the disability program established under title II of 
the Act.
    (b) Altering benefit requirements, limitations or conditions. 
Notwithstanding any other provision of this part, the Secretary may 
waive compliance with the entitlement and payment requirements for 
disabled beneficiaries to carry our experiments and demonstration 
projects in the title II disability program. The projects involve 
altering certain limitations and conditions that currently apply to 
applicants and beneficiaries to test their effect on the program.
    (c) Applicability and scope--(1) Participants and nonparticipants. 
If you are selected to participate in an experiment or demonstration 
project, we may temporarily set aside one or more of the current benefit 
entitlement or payment requirements, limitations or conditions and apply 
alternative provisions to you. We may also modify current methods of 
administering the Act as part of a project and apply alternative 
procedures or policies to you. The alternative provisions or methods of 
administration used in the projects will not disadvantage you in 
contrast to current provisions, procedures or policies. If you are not 
selected to participate in the experiments or demonstration projects (or 
if you are placed in a control group which is not subject to alternative 
requirements and methods) we will continue to apply to you the current 
benefit entitlement and payment requirements, limitations and conditions 
and methods of administration in the title II disability program.
    (2) Alternative provisions or methods of administration. The 
alternative provisions or methods of administration that apply to you in 
an experiment or demonstration project may include (but are not limited 
to) one or more of the following:
    (i) Reducing your benefits (instead of not paying) on the basis of 
the amount of your earnings in excess of the SGA amount;
    (ii) Extending your benefit eligibility period that follows 9 months 
of trial work, perhaps coupled with benefit reductions related to your 
earnings;
    (iii) Extending your Medicare benefits if you are severely impaired 
and return to work even though you may not be entitled to monthly cash 
benefits;
    (iv) Altering the 24-month waiting period for Medicare entitlement; 
and
    (v) Stimulating new forms of rehabilitation.
    (d) Selection of participants. We will select a probability sample 
of participants for the work incentive experiments and demonstration 
projects from newly awarded beneficiaries who meet certain pre-selection 
criteria (for example, individuals who are likely to be able to do 
substantial work despite continuing severe impairments). These

[[Page 413]]

criteria are designed to provide larger subsamples of beneficiaries who 
are not likely either to recover medically or die. Participants may also 
be selected from persons who have been receiving DI benefits for 6 
months or more at the time of selection.
    (e) Duration of experiments and demonstration projects. A notice 
describing each experiment or demonstration project will be published in 
the Federal Register before each experiment or project is placed in 
operation. The work incentive experiments and rehabilitation 
demonstrations will be activated in 1982. A final report on the results 
of the experiments and projects is to be completed and transmitted to 
Congress by June 9, 1993. However, the authority for the experiments and 
demonstration projects will not terminate at that time. Some of the 
alternative provisions or methods of administration may continue to 
apply to participants in an experiment or demonstration project beyond 
that date in order to assure the validity of the research. Each 
experiment and demonstration project will have a termination date (up to 
10 years from the start of the experiment or demonstration project).

[48 FR 7575, Feb. 23, 1983, as amended at 52 FR 37605, Oct. 8, 1987; 55 
FR 51687, Dec. 17, 1990]

             Appendix 1 to Subpart P--Listing of Impairments

    The body system listings in parts A and B of the Listing of 
Impairments will no longer be effective on the following dates unless 
extended by the Commissioner or revised and promulgated again.
    1. Growth Impairment (100.00): December 7, 1998.
    2. Musculoskeletal System (1.00 and 101.00): June 6, 1997.
    3. Special Senses and Speech (2.00 and 102.00): December 4, 1998.
    4. Respiratory System (3.00 and 103.00): October 7, 2000.
    5. Cardiovascular System (4.00 and 104.00): February 10, 1998.
    6. Digestive System (5.00 and 105.00): December 5, 1997.
    7. Genito-Urinary System (6.00 and 106.00): December 5, 1997.
    8. Hemic and Lymphatic System (7.00 and 107.00): June 6, 1997.
    9. Skin (8.00): June 6, 1997.
    10. Endocrine System and Obesity (9.00) and Endocrine System 
(109.00): June 6, 1997.
    11. Multiple Body Systems (110.00): July 2, 1998.
    12. Neurological (11.00 and 111.00): June 5, 1998.
    13. Mental Disorders (12.00): August 28, 1997.
    14. Mental Disorders (112.00): June 12, 1997.
    15. Neoplastic Diseases, Malignant (13.00 and 113.00): June 6, 1997.
    16. Immune System (14.00 and 114.00): July 2, 1998.

                                 Part A

    Criteria applicable to individuals age 18 and over and to children 
under age 18 where criteria are appropriate.

Sec.
1.00  Musculoskeletal System.
2.00  Special Senses and Speech.
3.00  Respiratory System.
4.00  Cardiovascular System.
5.00  Digestive System.
6.00  Genito-Urinary System.
7.00  Hemic and Lymphatic System.
8.00  Skin.
9.00  Endocrine System and Obesity.
10.00  [Reserved]
11.00  Neurological.
12.00  Mental Disorders.
13.00  Neoplastic Diseases, Malignant.
14.00  Immune System.

                      1.00  Musculoskeletal System

    A. Loss of function may be due to amputation or deformity. Pain may 
be an important factor in causing functional loss, but it must be 
associated with relevant abnormal signs or laboratory findings. 
Evaluations of musculoskeletal impairments should be supported where 
applicable by detailed descriptions of the joints, including ranges of 
motion, condition of the musculature, sensory or reflex changes, 
circulatory deficits, and X-ray abnormalities.
    B. Disorders of the spine, associated with vertebrogenic disorders 
as in 1.05C, result in impairment because of distortion of the bony and 
ligamentous architecture of the spine or impingement of a herniated 
nucleus pulposus or bulging annulus on a nerve root. Impairment caused 
by such abnormalities usually improves with time or responds to 
treatment. Appropriate abnormal physical findings must be shown to 
persist on repeated examinations despite therapy for a reasonable 
presumption to be made that severe impairment will last for a continuous 
period of 12 months. This may occur in cases with unsuccessful prior 
surgical treatment.
    Evaluation of the impairment caused by disorders of the spine 
requires that a clinical diagnosis of the entity to be evaluated first 
must be established on the basis of adequate history, physical 
examination, and roentgenograms. The specific findings stated in 1.05C 
represent the level required for that impairment; these findings, by 
themselves,

[[Page 414]]

are not intended to represent the basis for establishing the clinical 
diagnosis. Furthermore, while neurological examination findings are 
required, they are not to be interpreted as a basis for evaluating the 
magnitude of any neurological impairment. Neurological impairments are 
to be evaluated under 11.00-11.19.
    The history must include a detailed description of the character, 
location, and radiation of pain; mechanical factors which incite and 
relieve pain; prescribed treatment, including type, dose, and frequency 
of analgesic; and typical daily activities. Care must be taken to 
ascertain that the reported examination findings are consistent with the 
individual's daily activities.
    There must be a detailed description of the orthopedic and 
neurologic examination findings. The findings should include a 
description of gait, limitation of movement of the spine given 
quantitatively in degrees from the vertical position, motor and sensory 
abnormalities, muscle spasm, and deep tendon reflexes. Observations of 
the individual during the examination should be reported; e.g., how he 
or she gets on and off the examining table. Inability to walk on heels 
or toes, to squat, or to arise from a squatting position, where 
appropriate, may be considered evidence of significant motor loss. 
However, a report of atrophy is not acceptable as evidence of 
significant motor loss without circumferential measurements of both 
thighs and lower legs (or upper or lower arms) at a stated point above 
and below the knee or elbow given in inches or centimeters. A specific 
description of atrophy of hand muscles is acceptable without 
measurements of atrophy but should include measurements of grip 
strength.
    These physical examination findings must be determined on the basis 
of objective observations during the examination and not simply a report 
of the individual's allegation, e.g., he says his leg is weak, numb, 
etc. Alternative testing methods should be used to verify the 
objectivity of the abnormal findings, e.g., a seated straight-leg 
raising test in addition to a supine straight-leg raising test. Since 
abnormal findings may be intermittent, their continuous presence over a 
period of time must be established by a record of ongoing treatment. 
Neurological abnormalities may not completely subside after surgical or 
nonsurgical treatment, or with the passage of time. Residual 
neurological abnormalities, which persist after it has been determined 
clinically or by direct surgical or other observation that the ongoing 
or progressive condition is no longer present, cannot be considered to 
satisfy the required findings in 1.05C.
    Where surgical procedures have been performed, documentation should 
include a copy of the operative note and available pathology reports.
    Electrodiagnostic procedures and myelography may be useful in 
establishing the clinical diagnosis, but do not constitute alternative 
criteria to the requirements in 1.05C.
    C. After maximum benefit from surgical therapy has been achieved in 
situations involving fractures of an upper extremity (see 1.12) or soft 
tissue injuries of a lower or upper extremity (see 1.13), i.e., there 
have been no significant changes in physical findings or X-ray findings 
for any 6-month period after the last definitive surgical procedure, 
evaluation should be made on the basis of demonstrable residuals.
    D. Major joints as used herein refer to hip, knee, ankle, shoulder, 
elbow, or wrist and hand. (Wrist and hand are considered together as one 
major joint.)
    E. The measurements of joint motion are based on the techniques 
described in the ``Joint Motion Method of Measuring and Recording,'' 
published by the American Academy of Orthopedic Surgeons in 1965, or the 
``Guides to the Evaluation of Permanent Impairment--The Extremities and 
Back'' (Chapter I); American Medical Association, 1971.
    1.01  Category of Impairments, Musculoskeletal
    1.02  Active rheumatoid arthritis and other inflammatory arthritis.
    With both A and B.
    A. History of persistent joint pain, swelling, and tenderness 
involving multiple major joints (see 1.00D) and with signs of joint 
inflammation (swelling and tenderness) on current physical examination 
despite prescribed therapy for at least 3 months, resulting in 
significant restriction of function of the affected joints, and clinical 
activity expected to last at least 12 months; and
    B. Corroboration of diagnosis at some point in time by either.
    1. Positive serologic test for rheumatoid factor; or
    2. Antinuclear antibodies; or
    3. Elevated sedimentation rate; or
    4. Characteristic histologic changes in biopsy of synovial membrane 
or subcutaneous nodule (obtained independent of Social Security 
disability evaluation).
    1.03  Arthritis of a major weight-bearing joint (due to any cause):
    With history of persistent joint pain and stiffness with signs of 
marked limitation of motion or abnormal motion of the affected joint on 
current physical examination. With:
    A. Gross anatomical deformity of hip or knee (e.g, subluxation, 
contracture, bony or fibrous ankylosis, instability) supported by X-ray 
evidence of either significant joint space narrowing or significant bony 
destruction and markedly limiting ability to walk and stand; or
    B. Reconstructive surgery or surgical arthrodesis of a major weight-
bearing joint and

[[Page 415]]

return to full weight-bearing status did not occur, or is not expected 
to occur, within 12 months of onset.
    1.04  Arthritis of one major joint in each of the upper extremities 
(due to any cause):
    With history of persistent joint pain and stiffness, signs of marked 
limitation of motion of the affected joints on current physical 
examination, and X-ray evidence of either significant joint space 
narrowing or significant bony destruction. With:
    A. Abduction and forward flexion (elevation) of both arms at the 
shoulders, including scapular motion, restricted to less than 90 
degrees; or
    B. Gross anatomical deformity (e.g., subluxation, contracture, bony 
or fibrous ankylosis, instability, ulnar deviation) and enlargement or 
effusion of the affected joints.
    1.05  Disorders of the spine:
    A. Arthritis manifested by ankylosis or fixation of the cervical or 
dorsolumbar spine at 30 deg. or more of flexion measured from the 
neutral postion, with X-ray evidence of:
    1. Calcification of the anterior and lateral ligaments; or
    2. Bilateral ankylosis of the sacroiliac joints with abnormal 
apophyseal articulations; or
    B. Osteoporosis, generalized (established by X-ray) manifested by 
pain and limitation of back motion and paravertebral muscle spasm with 
X-ray evidence of either:
    1. Compression fracture of a vertebral body with loss of at least 50 
percent of the estimated height of the vertebral body prior to the 
compression fracture, with no intervening direct traumatic episode; or
    2. Multiple fractures of vertebrae with no intervening direct 
traumatic episode; or
    C. Other vertebrogenic disorders (e.g., herniated nucleus puplosus, 
spinal stenosis) with the following persisting for at least 3 months 
despite prescribed therapy and expected to last 12 months. With both 1 
and 2:
    1. Pain, muscle spasm, and significant limitation of motion in the 
spine; and
    2. Appropriate radicular distribution of significant motor loss with 
muscle weakness and sensory and reflex loss.
    1.08  Osteomyelitis or septic arthritis (established by X-ray):
    A. Located in the pelvis, vertebra, femur, tibia, or a major joint 
of an upper or lower extremity, with persistent activity or occurrence 
of at least two episodes of acute activity within a 5-month period prior 
to adjudication, manifested by local inflammatory, and systemic signs 
and laboratory findings (e.g., heat, redness, swelling, leucocytosis, or 
increased sedimentation rate) and expected to last at least 12 months 
despite prescribed therapy; or
    B. Multiple localizations and systemic manifestations as in A above.
    1.09  Amputation or anatomical deformity of (i.e., loss of major 
function due to degenerative changes associated with vascular or 
neurological deficits, traumatic loss of muscle mass or tendons and X-
ray evidence of bony ankylosis at an unfavorable angle, joint 
subluxation or instability):
    A. Both hands; or
    B. Both feet; or
    C. One hand and one foot.
    1.10  Amputation of one lower extremity (at or above the tarsal 
region):
    A. Hemipelvectomy or hip disarticulation; or
    B. Amputation at or above the tarsal region due to peripheral 
vascular disease or diabetes mellitus; or
    C. Inability to use a prosthesis effectively, without obligatory 
assistive devices, due to one of the following:
    1. Vascular disease; or
    2. Neurological complications (e.g., loss of position sense); or
    3. Stump too short or stump complications persistent, or are 
expected to persist, for at least 12 months from onset; or
    4. Disorder of contralateral lower extremity which markedly limits 
ability to walk and stand.
    1.11  Fracture of the femur, tibia, tarsal bone of pelvis with solid 
union not evident on X-ray and not clinically solid, when such 
determination is feasible, and return to full weight-bearing status did 
not occur or is not expected to occur within 12 months of onset.
    1.12  Fractures of an upper extremity with non-union of a fracture 
of the shaft of the humerus, radius, or ulna under continuing surgical 
management directed toward restoration of functional use of the 
extremity and such function was not restored or expected to be restored 
within 12 months after onset.
    1.13  Soft tissue injuries of an upper or lower extremity requiring 
a series of staged surgical procedures within 12 months after onset for 
salvage and/or restoration of major function of the extremity, and such 
major function was not restored or expected to be restored within 12 
months after onset.

                     2.00  Special Senses and Speech

    A. Ophthalmology
    1. Causes of impairment. Diseases or injury of the eyes may produce 
loss of central or peripheral vision. Loss of central vision results in 
inability to distinguish detail and prevents reading and fine work. Loss 
of peripheral vision restricts the ability of an individual to move 
about freely. The extent of impairment of sight should be determined by 
visual testing.
    2. Central visual acuity. A loss of central visual acuity may be 
caused by impaired distant and/or near vision. However, for an 
individual to meet the level of severity described in 2.02 and 2.04, 
only the remaining central visual acuity for distance of the better eye 
with best correction based on the Snellen

[[Page 416]]

test chart measurement may be used. Correction obtained by special 
visual aids (e.g., contact lenses) will be considered if the individual 
has the ability to wear such aids.
    3. Field of vision. Impairment of peripheral vision may result if 
there is contraction of the visual fields. The contraction may be either 
symmetrical or irregular. The extent of the remaining peripheral visual 
field will be determined by usual perimetric methods at a distance of 
330 mm. under illumination of not less than 7-foot candles. For the 
phakic eye (the eye with a lens), a 3 mm. white disc target will be 
used, and for the aphakic eye (the eye without the lens), a 6 mm. white 
disc target will be used. In neither instance should corrective 
spectacle lenses be worn during the examination but if they have been 
used, this fact must be stated.
    Measurements obtained on comparable perimetric devices may be used; 
this does not include the use of tangent screen measurements. For 
measurements obtained using the Goldmann perimeter, the object size 
designation III and the illumination designation 4 should be used for 
the phakic eye, and the object size designation IV and illumination 
designation 4 for the aphakic eye.
    Field measurements must be accompanied by notated field charts, a 
description of the type and size of the target and the test distance. 
Tangent screen visual fields are not acceptable as a measurement of 
peripheral field loss.
    Where the loss is predominantly in the lower visual fields, a system 
such as the weighted grid scale for perimetric fields described by B. 
Esterman (see Grid for Scoring Visual Fields, II. Perimeter, Archives of 
Ophthalmology, 79:400, 1968) may be used for determining whether the 
visual field loss is comparable to that described in Table 2.
    4. Muscle function. Paralysis of the third cranial nerve producing 
ptosis, paralysis of accommodation, and dilation and immobility of the 
pupil may cause significant visual impairment. When all the muscle of 
the eye are paralyzed including the iris and ciliary body (total 
ophthalmoplegia), the condition is considered a severe impairment 
provided it is bilateral. A finding of severe impairment based primarily 
on impaired muscle function must be supported by a report of an actual 
measurement of ocular motility.
    5. Visual efficiency. Loss of visual efficiency may be caused by 
disease or injury resulting in a reduction of central visual acuity or 
visual field. The visual efficiency of one eye is the product of the 
percentage of central visual efficiency and the percentage of visual 
field efficiency. (See Tables No. 1 and 2, following 2.09.)
    6. Special situations. Aphakia represents a visual handicap in 
addition to the loss of central visual acuity. The term monocular 
aphakia would apply to an individual who has had the lens removed from 
one eye, and who still retains the lens in his other eye, or to an 
individual who has only one eye which is aphakic. The term binocular 
aphakia would apply to an individual who has had both lenses removed. In 
cases of binocular aphakia, the central efficiency of the better eye 
will be accepted as 75 percent of its value. In cases of monocular 
aphakia, where the better eye is aphakic, the central visual efficiency 
will be accepted as 50 percent of the value. (If an individual has 
binocular aphakia, and the central visual acuity in the poorer eye can 
be corrected only to 20/200, or less, the central visual efficiency of 
the better eye will be accepted as 50 percent of its value.)
    Ocular symptoms of systemic disease may or may not produce a 
disabling visual impairement. These manifestations should be evaluated 
as part of the underlying disease entity by reference to the particular 
body system involved.
    7. Statutory blindness. The term ``statutory blindness'' refers to 
the degree of visual impairment which defines the term ``blindness'' in 
the Social Security Act. Both 2.02 and 2.03 A and B denote statutory 
blindness.
    B. Otolaryngology
    1. Hearing impairment. Hearing ability should be evaluated in terms 
of the person's ability to hear and distinguish speech.
    Loss of hearing can be quantitatively determined by an audiometer 
which meets the standards of the American National Standards Institute 
(ANSI) for air and bone conducted stimuli (i.e., ANSI S 3.6-1969 and 
ANSI S 3.13-1972, or subsequent comparable revisions) and performing all 
hearing measurements in an environment which meets the ANSI standard for 
maximal permissible background sound (ANSI S 3.1-1977).
    Speech discrimination should be determined using a standardized 
measure of speech discrimination ability in quiet at a test presentation 
level sufficient to ascertain maximum discrimination ability. The speech 
discrimination measure (test) used, and the level at which testing was 
done, must be reported.
    Hearing tests should be preceded by an otolaryngologic examination 
and should be performed by or under the supervision of an 
otolaryngologist or audiologist qualified to perform such tests.
    In order to establish an independent medical judgment as to the 
level of impairment in a claimant alleging deafness, the following 
examinations should be reported: Otolaryngologic examination, pure tone 
air and bone audiometry, speech reception threshold (SRT), and speech 
discrimination testing. A copy of reports of medical examination and 
audiologic evaluations must be submitted.
    Cases of alleged ``deaf mutism'' should be documented by a hearing 
evaluation. Records obtained from a speech and hearing

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rehabilitation center or a special school for the deaf may be 
acceptable, but if these reports are not available, or are found to be 
inadequate, a current hearing evaluation should be submitted as outlined 
in the preceding paragraph.
    2. Vertigo associated with disturbances of labyrinthine-vestibular 
function, including Meniere's disease. These disturbances of balance are 
characterized by an hallucination of motion or loss of position sense 
and a sensation of dizziness which may be constant or may occur in 
paroxysmal attacks. Nausea, vomiting, ataxia, and incapacitation are 
frequently observed, particularly during the acute attack. It is 
important to differentiate the report of rotary vertigo from that of 
``dizziness'' which is described as lightheadedness, unsteadiness, 
confusion, or syncope.
    Meniere's disease is characterized by paroxysmal attacks of vertigo, 
tinnitus, and fluctuating hearing loss. Remissions are unpredictable and 
irregular, but may be longlasting; hence, the severity of impairment is 
best determined after prolonged observation and serial reexaminations.
    The diagnosis of a vestibular disorder requires a comprehensive 
neuro-otolaryngologic examination with a detailed description of the 
vertiginous episodes, including notation of frequency, severity, and 
duration of the attacks. Pure tone and speech audiometry with the 
appropriate special examinations, such as Bekesy audiometry, are 
necessary. Vestibular functions is assessed by positional and caloric 
testing, preferably by electronystagmography. When polytograms, contrast 
radiography, or other special tests have been performed, copies of the 
reports of these tests should be obtained in addition to reports of 
skull and temporal bone X-rays.
    3. Organic loss of speech. Glossectomy or laryngectomy or 
cicatricial laryngeal stenosis due to injury or infection results in 
loss of voice production by normal means. In evaluating organic loss of 
speech (see 2.09), ability to produce speech by any means includes the 
use of mechanical or electronic devices. Impairment of speech due to 
neurologic disorders should be evaluated under 11.00-11.19.
    2.01  Category of Impairments, Special Senses and Speech
    2.02  Impairment of central visual acuity. Remaining vision in the 
better eye after best correction is 20/200 or less.
    2.03  Contraction of peripheral visual fields in the better eye.
    A. To 10 deg. or less from the point of fixation; or
    B. So the widest diameter subtends an angle no greater than 20 deg.; 
or
    C. To 20 percent or less visual field efficiency.
    2.04  Loss of visual efficiency. Visual efficiency of better eye 
after best correction 20 percent or less. (The percent of remaining 
visual efficiency=the product of the percent of remaining central visual 
efficiency and the percent of remaining visual field efficiency.)
    2.05  Complete homonymous hemianopsia (with or without macular 
sparing). Evaluate under 2.04.
    2.06  Total bilateral ophthalmoplegia. 
    2.07  Disturbance of labyrinthine-vestibular function (including 
Meniere's disease), characterized by a history of frequent attacks of 
balance disturbance, tinnitus, and progressive loss of hearing. With 
both A and B:
    A. Disturbed function of vestibular labyrinth demonstrated by 
caloric or other vestibular tests; and
    B. Hearing loss established by audiometry.
    2.08  Hearing impairments (hearing not restorable by a hearing aid) 
manifested by:
    A. Average hearing threshold sensitivity for air conduction of 90 
decibels or greater and for bone conduction to corresponding maximal 
levels, in the better ear, determined by the simple average of hearing 
threshold levels at 500, 1000 and 2000 hz. (see 2.00B1); or
    B. Speech discrimination scores of 40 percent or less in the better 
ear;
    2.09  Organic loss of speech due to any cause with inability to 
produce by any means speech which can be heard, understood, and 
sustained.

  Table No. 1--Percentage of Central Visual Efficiency Corresponding to 
 Central Visual Acuity Notations for Distance in the Phakic and Aphakic 
                            Eye (Better Eye)                            
------------------------------------------------------------------------
         Snellen                 Percent central visual efficiency      
------------------------------------------------------------------------
                                            Aphakic          Aphakic    
  English       Metric     Phakic \1\    monocular \2\    binocular \3\ 
------------------------------------------------------------------------
20/16......         6/5          100              50               75   
20/20......         6/6          100              50               75   
20/25......       6/7.5           95              47               71   
20/32......        6/10           90              45               67   
20/40......        6/12           85              42               64   
20/50......        6/15           75              37               56   
20/64......        6/20           65              32               49   
20/80......        6/24           60              30               45   
20/100.....        6/30           50              25               37   
20/125.....        6/38           40              20               30   
20/160.....        6/48           30    ...............            22   
20/200.....        6/60           20    ...............  ...............
------------------------------------------------------------------------
Column and Use.                                                         
\1\ Phakic.--1. A lens is present in both eyes. 2. A lens is present in 
  the better eye and absent in the poorer eye. 3. A lens is present in  
  one eye and the other eye is enucleated.                              
\2\ Monocular.--1. A lens is absent in the better eye and present in the
  poorer eye. 2. The lenses are absent in both eyes; however, the       
  central visual acuity in the poorer eye after best correction in 20/  
  200 or less. 3. A lens is absent from one eye and the other eye is    
  enucleated.                                                           
\3\ Binocular.--1. The lenses are absent from both eyes and the central 
  visual acuity in the poorer eye after best correction is greater than 
  20/200.                                                               


[[Page 418]]

[GRAPHIC] [TIFF OMITTED] TR01FE93.040

 Table No. 2--Chart of Visual Field Showing Extent of Normal Field and 
         Method of Computing Percent of Visual Field Efficiency
    1. Diagram of right eye illustrates extent of normal visual field as 
tested on standard perimeter at 3/330 (3 mm. white disc at a distance of 
330 mm.) under 7 foot-candles illumination. The sum of the eight 
principal meridians of this field total 500 deg..
    2. The percent of visual field efficiency is obtained by adding the 
number of degrees of the eight principal meridians of the contracted 
field and dividing by 500. Diagram of left eye illustrates visual field 
contracted to 30 deg. in the temporal and down and out meridians and to 
20 deg. in the remaining six meridians. The percent of visual field 
efficiency of this field is: 6 x 20+2 x 30    =180500=0.36 or 36 
percent remaining visual field efficiency, or 64 percent loss.

                        3.00  Respiratory System

    A. Introduction. The listings in this section describe impairments 
resulting from respiratory disorders based on symptoms, physical signs, 
laboratory test abnormalities, and response to a regimen of treatment 
prescribed by a treating source. Respiratory disorders along with any 
associated impairment(s) must be established by medical evidence. 
Evidence must be provided in sufficient detail to permit an independent 
reviewer to evaluate the severity of the impairment.
    Many individuals, especially those who have listing-level 
impairments, will have received the benefit of medically prescribed 
treatment. Whenever there is evidence of such treatment, the 
longitudinal clinical record must include a description of the treatment 
prescribed by the treating source and response in addition to 
information about the nature and severity of the impairment. It is 
important to document any prescribed treatment and response, because 
this medical management may have improved the individual's functional 
status. The longitudinal record should provide information regarding 
functional recovery, if any.
    Some individuals will not have received ongoing treatment or have an 
ongoing relationship with the medical community, despite the existence 
of a severe impairment(s). An individual who does not receive treatment 
may or may not be able to show the existence of an impairment that meets 
the criteria of these listings. Even if an individual does not show that 
his or her impairment meets the criteria of these listings, the 
individual may have an impairment(s) equivalent in severity to one of 
the listed impairments or be disabled because of a limited residual 
functional capacity. Unless the claim can be decided favorably on the 
basis of the current evidence, a longitudinal record is still important 
because it will provide information about such things as the ongoing 
medical severity of the impairment, the level of the individual's 
functioning, and the

[[Page 419]]

frequency, severity, and duration of symptoms. Also, the asthma listing 
specifically includes a requirement for continuing signs and symptoms 
despite a regimen of prescribed treatment.
    Impairments caused by chronic disorders of the respiratory system 
generally produce irreversible loss of pulmonary function due to 
ventilatory impairments, gas exchange abnormalities, or a combination of 
both. The most common symptoms attributable to these disorders are 
dyspnea on exertion, cough, wheezing, sputum production, hemoptysis, and 
chest pain. Because these symptoms are common to many other diseases, a 
thorough medical history, physical examination, and chest x-ray or other 
appropriate imaging technique are required to establish chronic 
pulmonary disease. Pulmonary function testing is required to assess the 
severity of the respiratory impairment once a disease process is 
established by appropriate clinical and laboratory findings.
    Alterations of pulmonary function can be due to obstructive airway 
disease (e.g., emphysema, chronic bronchitis, asthma), restrictive 
pulmonary disorders with primary loss of lung volume (e.g., pulmonary 
resection, thoracoplasty, chest cage deformity as in kyphoscoliosis or 
obesity), or infiltrative interstitial disorders (e.g., diffuse 
pulmonary fibrosis). Gas exchange abnormalities without significant 
airway obstruction can be produced by interstitial disorders. Disorders 
involving the pulmonary circulation (e.g., primary pulmonary 
hypertension, recurrent thromboembolic disease, primary or secondary 
pulmonary vasculitis) can produce pulmonary vascular hypertension and, 
eventually, pulmonary heart disease (cor pulmonale) and right heart 
failure. Persistent hypoxemia produced by any chronic pulmonary disorder 
also can result in chronic pulmonary hypertension and right heart 
failure. Chronic infection, caused most frequently by mycobacterial or 
mycotic organisms, can produce extensive and progressive lung 
destruction resulting in marked loss of pulmonary function. Some 
disorders, such as bronchiectasis, cystic fibrosis, and asthma, can be 
associated with intermittent exacerbations of such frequency and 
intensity that they produce a disabling impairment, even when pulmonary 
function during periods of relative clinical stability is relatively 
well-maintained.
    Respiratory impairments usually can be evaluated under these 
listings on the basis of a complete medical history, physical 
examination, a chest x-ray or other appropriate imaging techniques, and 
spirometric pulmonary function tests. In some situations, most typically 
with a diagnosis of diffuse interstitial fibrosis or clinical findings 
suggesting cor pulmonale, such as cyanosis or secondary polycythemia, an 
impairment may be underestimated on the basis of spirometry alone. More 
sophisticated pulmonary function testing may then be necessary to 
determine if gas exchange abnormalities contribute to the severity of a 
respiratory impairment. Additional testing might include measurement of 
diffusing capacity of the lungs for carbon monoxide or resting arterial 
blood gases. Measurement of arterial blood gases during exercise is 
required infrequently. In disorders of the pulmonary circulation, right 
heart catheterization with angiography and/or direct measurement of 
pulmonary artery pressure may have been done to establish a diagnosis 
and evaluate severity. When performed, the results of the procedure 
should be obtained. Cardiac catheterization will not be purchased.
    These listings are examples of common respiratory disorders that are 
severe enough to prevent a person from engaging in any gainful activity. 
When an individual has a medically determinable impairment that is not 
listed, an impairment which does not meet a listing, or a combination of 
impairments no one of which meets a listing, we will consider whether 
the individual's impairment or combination of impairments is medically 
equivalent in severity to a listed impairment. Individuals who have an 
impairment(s) with a level of severity which does not meet or equal the 
criteria of the listings may or may not have the residual functional 
capacity (RFC) which would enable them to engage in substantial gainful 
activity. Evaluation of the impairment(s) of these individuals will 
proceed through the final steps of the sequential evaluation process.
    B. Mycobacterial, mycotic, and other chronic persistent infections 
of the lung. These disorders are evaluated on the basis of the resulting 
limitations in pulmonary function. Evidence of chronic infections, such 
as active mycobacterial diseases or mycoses with positive cultures, drug 
resistance, enlarging parenchymal lesions, or cavitation, is not, by 
itself, a basis for determining that an individual has a disabling 
impairment expected to last 12 months. In those unusual cases of 
pulmonary infection that persist for a period approaching 12 consecutive 
months, the clinical findings, complications, therapeutic 
considerations, and prognosis must be carefully assessed to determine 
whether, despite relatively well-maintained pulmonary function, the 
individual nevertheless has an impairment that is expected to last for 
at least 12 consecutive months and prevent gainful activity.
    C. Episodic respiratory disease. When a respiratory impairment is 
episodic in nature, as can occur with exacerbations of asthma, cystic 
fibrosis, bronchiectasis, or chronic

[[Page 420]]

asthmatic bronchitis, the frequency and intensity of episodes that occur 
despite prescribed treatment are often the major criteria for 
determining the level of impairment. Documentation for these 
exacerbations should include available hospital, emergency facility and/
or physician records indicating the dates of treatment; clinical and 
laboratory findings on presentation, such as the results of spirometry 
and arterial blood gas studies (ABGS); the treatment administered; the 
time period required for treatment; and the clinical response. Attacks 
of asthma, episodes of bronchitis or pneumonia or hemoptysis (more than 
blood-streaked sputum), or respiratory failure as referred to in 
paragraph B of 3.03, 3.04, and 3.07, are defined as prolonged 
symptomatic episodes lasting one or more days and requiring intensive 
treatment, such as intravenous bronchodilator or antibiotic 
administration or prolonged inhalational bronchodilator therapy in a 
hospital, emergency room or equivalent setting. Hospital admissions are 
defined as inpatient hospitalizations for longer than 24 hours. The 
medical evidence must also include information documenting adherence to 
a prescribed regimen of treatment as well as a description of physical 
signs. For asthma, the medical evidence should include spirometric 
results obtained between attacks that document the presence of baseline 
airflow obstruction.
    D. Cystic fibrosis is a disorder that affects either the respiratory 
or digestive body systems or both and is responsible for a wide and 
variable spectrum of clinical manifestations and complications. 
Confirmation of the diagnosis is based upon an elevated sweat sodium 
concentration or chloride concentration accompanied by one or more of 
the following: the presence of chronic obstructive pulmonary disease, 
insufficiency of exocrine pancreatic function, meconium ileus, or a 
positive family history. The quantitative pilocarpine iontophoresis 
procedure for collection of sweat content must be utilized. Two methods 
are acceptable: the ``Procedure for the Quantitative Iontophoretic Sweat 
Test for Cystic Fibrosis'' published by the Cystic Fibrosis Foundation 
and contained in, ``A Test for Concentration of Electrolytes in Sweat in 
Cystic Fibrosis of the Pancreas Utilizing Pilocarpine Iontophoresis,'' 
Gibson, I.E., and Cooke, R.E., Pediatrics, Vol. 23: 545, 1959; or the 
``Wescor Macroduct System.'' To establish the diagnosis of cystic 
fibrosis, the sweat sodium or chloride content must be analyzed 
quantitatively using an acceptable laboratory technique. Another 
diagnostic test is the ``CF gene mutation analysis'' for homozygosity of 
the cystic fibrosis gene. The pulmonary manifestations of this disorder 
should be evaluated under 3.04. The nonpulmonary aspects of cystic 
fibrosis should be evaluated under the digestive body system (5.00). 
Because cystic fibrosis may involve the respiratory and digestive body 
systems, the combined effects of the involvement of these body systems 
must be considered in case adjudication.
    E. Documentation of pulmonary function testing. The results of 
spirometry that are used for adjudication under paragraphs A and B of 
3.02 and paragraph A of 3.04 should be expressed in liters (L), body 
temperature and pressure saturated with water vapor (BTPS). The reported 
one-second forced expiratory volume (FEV1) and forced vital 
capacity (FVC) should represent the largest of at least three 
satisfactory forced expiratory maneuvers. Two of the satisfactory 
spirograms should be reproducible for both pre-bronchodilator tests and, 
if indicated, post-bronchodilator tests. A value is considered 
reproducible if it does not differ from the largest value by more than 5 
percent or 0.1 L, whichever is greater. The highest values of the 
FEV1 and FVC, whether from the same or different tracings, 
should be used to assess the severity of the respiratory impairment. 
Peak flow should be achieved early in expiration, and the spirogram 
should have a smooth contour with gradually decreasing flow throughout 
expiration. The zero time for measurement of the FEV1 and 
FVC, if not distinct, should be derived by linear back-extrapolation of 
peak flow to zero volume. A spirogram is satisfactory for measurement of 
the FEV1 if the expiratory volume at the back-extrapolated 
zero time is less than 5 percent of the FVC or 0.1 L, whichever is 
greater. The spirogram is satisfactory for measurement of the FVC if 
maximal expiratory effort continues for at least 6 seconds, or if there 
is a plateau in the volume-time curve with no detectable change in 
expired volume (VE) during the last 2 seconds of maximal expiratory 
effort.
    Spirometry should be repeated after administration of an aerosolized 
bronchodilator under supervision of the testing personnel if the pre-
bronchodilator FEV1 value is less than 70 percent of the 
predicted normal value. Pulmonary function studies should not be 
performed unless the clinical status is stable (e.g., the individual is 
not having an asthmatic attack or suffering from an acute respiratory 
infection or other chronic illness). Wheezing is common in asthma, 
chronic bronchitis, or chronic obstructive pulmonary disease and does 
not preclude testing. The effect of the administered bronchodilator in 
relieving bronchospasm and improving ventilatory function is assessed by 
spirometry. If a bronchodilator is not administered, the reason should 
be clearly stated in the report. Pulmonary function studies performed to 
assess airflow obstruction without testing after bronchodilators cannot 
be used to assess levels of impairment in the range that prevents any 
gainful work activity, unless the use of bronchodilators is 
contraindicated. Post-

[[Page 421]]

bronchodilator testing should be performed 10 minutes after 
bronchodilator administration. The dose and name of the bronchodilator 
administered should be specified. The values in paragraphs A and B of 
3.02 must only be used as criteria for the level of ventilatory 
impairment that exists during the individual's most stable state of 
health (i.e., any period in time except during or shortly after an 
exacerbation).
    The appropriately labeled spirometric tracing, showing the 
claimant's name, date of testing, distance per second on the abscissa 
and distance per liter (L) on the ordinate, must be incorporated into 
the file. The manufacturer and model number of the device used to 
measure and record the spirogram should be stated. The testing device 
must accurately measure both time and volume, the latter to within 1 
percent of a 3 L calibrating volume. If the spirogram was generated by 
any means other than direct pen linkage to a mechanical displacement-
type spirometer, the spirometric tracing must show a recorded 
calibration of volume units using a mechanical volume input such as a 3 
L syringe.
    If the spirometer directly measures flow, and volume is derived by 
electronic integration, the linearity of the device must be documented 
by recording volume calibrations at three different flow rates of 
approximately 30 L/min (3 L/6 sec), 60 L/min (3 L/3 sec), and 180 L/min 
(3 L/sec). The volume calibrations should agree to within 1 percent of a 
3 L calibrating volume. The proximity of the flow sensor to the 
individual should be noted, and it should be stated whether or not a 
BTPS correction factor was used for the calibration recordings and for 
the individual's actual spirograms.
    The spirogram must be recorded at a speed of at least 20 mm/sec, and 
the recording device must provide a volume excursion of at least 10 mm/
L. If reproductions of the original spirometric tracings are submitted, 
they must be legible and have a time scale of at least 20 mm/sec and a 
volume scale of at least 10 mm/L to permit independent measurements. 
Calculation of FEV1 from a flow-volume tracing is not 
acceptable, i.e., the spirogram and calibrations must be presented in a 
volume-time format at a speed of at least 20 mm/sec and a volume 
excursion of at least 10 mm/L to permit independent evaluation.
    A statement should be made in the pulmonary function test report of 
the individual's ability to understand directions as well as his or her 
effort and cooperation in performing the pulmonary function tests.
    The pulmonary function tables in 3.02 and 3.04 are based on 
measurement of standing height without shoes. If an individual has 
marked spinal deformities (e.g., kyphoscoliosis), the measured span 
between the fingertips with the upper extremities abducted 90 degrees 
should be substituted for height when this measurement is greater than 
the standing height without shoes.
    F. Documentation of chronic impairment of gas exchange.
    1. Diffusing capacity of the lungs for carbon monoxide (DLCO). A 
diffusing capacity of the lungs for carbon monoxide study should be 
purchased in cases in which there is documentation of chronic pulmonary 
disease, but the existing evidence, including properly performed 
spirometry, is not adequate to establish the level of functional 
impairment. Before purchasing DLCO measurements, the medical history, 
physical examination, reports of chest x-ray or other appropriate 
imaging techniques, and spirometric test results must be obtained and 
reviewed because favorable decisions can often be made based on 
available evidence without the need for DLCO studies. Purchase of a DLCO 
study may be appropriate when there is a question of whether an 
impairment meets or is equivalent in severity to a listing, and the 
claim cannot otherwise be favorably decided.
    The DLCO should be measured by the single breath technique with the 
individual relaxed and seated. At sea level, the inspired gas mixture 
should contain approximately 0.3 percent carbon monoxide (CO), 10 
percent helium (He), 21 percent oxygen (O2), and the balance 
nitrogen. At altitudes above sea level, the inspired O2 
concentration may be raised to provide an inspired O2 tension 
of approximately 150 mm Hg. Alternatively, the sea level mixture may be 
employed at altitude and the measured DLCO corrected for ambient 
barometric pressure. Helium may be replaced by another inert gas at an 
appropriate concentration. The inspired volume (VI) during the DLCO 
maneuver should be at least 90 percent of the previously determined 
vital capacity (VC). The inspiratory time for the VI should be less than 
2 seconds, and the breath-hold time should be between 9 and 11 seconds. 
The washout volume should be between 0.75 and 1.00 L, unless the VC is 
less than 2 L. In this case, the washout volume may be reduced to 0.50 
L; any such change should be noted in the report. The alveolar sample 
volume should be between 0.5 and 1.0 L and be collected in less than 3 
seconds. At least 4 minutes should be allowed for gas washout between 
repeat studies.
    A DLCO should be reported in units of ml CO, standard temperature, 
pressure, dry (STPD)/min/mm Hg uncorrected for hemoglobin concentration 
and be based on a single-breath alveolar volume determination. Abnormal 
hemoglobin or hematocrit values, and/or carboxyhemoglobin levels should 
be reported along with diffusing capacity.
    The DLCO value used for adjudication should represent the mean of at 
least two acceptable measurements, as defined above. In addition, two 
acceptable tests should be within 10 percent of each other or 3 ml

[[Page 422]]

CO(STPD)/min/mm Hg, whichever is larger. The percent difference should 
be calculated as 100 x (test 1-test 2)/average DLCO.
    The ability of the individual to follow directions and perform the 
test properly should be described in the written report. The report 
should include tracings of the VI, breath-hold maneuver, and VE 
appropriately labeled with the name of the individual and the date of 
the test. The time axis should be at least 20 mm/sec and the volume axis 
at least 10 mm/L. The percentage concentrations of inspired 
O2, and inspired and expired CO and He for each of the 
maneuvers should be provided, and the algorithm used to calculate test 
results noted. Sufficient data must be provided to permit independent 
calculation of results (and, if necessary, calculation of corrections 
for anemia and/or carboxyhemoglobin).
    2. Arterial blood gas studies (ABGS). An ABGS performed at rest 
(while breathing room air, awake and sitting or standing) or during 
exercise should be analyzed in a laboratory certified by a State or 
Federal agency. If the laboratory is not certified, it must submit 
evidence of participation in a national proficiency testing program as 
well as acceptable quality control at the time of testing. The report 
should include the altitude of the facility and the barometric pressure 
on the date of analysis.
    Purchase of resting ABGS may be appropriate when there is a question 
of whether an impairment meets or is equivalent in severity to a 
listing, and the claim cannot otherwise be favorably decided. If the 
results of a DLCO study are greater than 40 percent of predicted normal 
but less than 60 percent of predicted normal, purchase of resting ABGS 
should be considered. Before purchasing resting ABGS, a program 
physician, preferably one experienced in the care of patients with 
pulmonary disease, must review all clinical and laboratory data short of 
this procedure, including spirometry, to determine whether obtaining the 
test would present a significant risk to the individual.
    3. Exercise testing. Exercise testing with measurement of arterial 
blood gases during exercise may be appropriate in cases in which there 
is documentation of chronic pulmonary disease, but full development, 
short of exercise testing, is not adequate to establish if the 
impairment meets or is equivalent in severity to a listing, and the 
claim cannot otherwise be favorably decided. In this context, ``full 
development'' means that results from spirometry and measurement of DLCO 
and resting ABGS have been obtained from treating sources or through 
purchase. Exercise arterial blood gas measurements will be required 
infrequently and should be purchased only after careful review of the 
medical history, physical examination, chest x-ray or other appropriate 
imaging techniques, spirometry, DLCO, electrocardiogram (ECG), 
hematocrit or hemoglobin, and resting blood gas results by a program 
physician, preferably one experienced in the care of patients with 
pulmonary disease, to determine whether obtaining the test would 
presents a significant risk to the individual. Oximetry and capillary 
blood gas analysis are not acceptable substitutes for the measurement of 
arterial blood gases. Arterial blood gas samples obtained after the 
completion of exercise are not acceptable for establishing an 
individual's functional capacity.
    Generally, individuals with a DLCO greater than 60 percent of 
predicted normal would not be considered for exercise testing with 
measurement of blood gas studies. The exercise test facility must be 
provided with the claimant's clinical records, reports of chest x-ray or 
other appropriate imaging techniques, and any spirometry, DLCO, and 
resting blood gas results obtained as evidence of record. The testing 
facility must determine whether exercise testing present a significant 
risk to the individual; if it does, the reason for not performing the 
test must be reported in writing.
    4. Methodology. Individuals considered for exercise testing first 
should have resting arterial blood partial pressure of oxygen 
(PO2), resting arterial blood partial pressure of carbon 
dioxide (PCO2) and negative log of hydrogen ion concentration 
(pH) determinations by the testing facility. The sample should be 
obtained in either the sitting or standing position. The individual 
should then perform exercise under steady state conditions, preferably 
on a treadmill, breathing room air, for a period of 4 to 6 minutes at a 
speed and grade providing an oxygen consumption of approximately 17.5 
ml/kg/min (5 METs). If a bicycle ergometer is used, an exercise 
equivalent of 5 METs (e.g., 450 kpm/min, or 75 watts, for a 176 pound 
(80 kilogram) person) should be used. If the individual is able to 
complete this level of exercise without achieving listing-level 
hypoxemia, then he or she should be exercised at higher workloads to 
determine exercise capacity. A warm-up period of treadmill walking or 
cycling may be performed to acquaint the individual with the exercise 
procedure. If during the warm-up period the individual cannot achieve an 
exercise level of 5 METs, a lower workload may be selected in keeping 
with the estimate of exercise capacity. The individual should be 
monitored by ECG throughout the exercise and in the immediate post-
exercise period. Blood pressure and an ECG should be recorded during 
each minute of exercise. During the final 2 minutes of a specific level 
of steady state exercise, an arterial blood sample should be drawn and 
analyzed for oxygen pressure (or tension) (PO2), carbon 
dioxide pressure (or tension) (PCO2), and pH. At the 
discretion of the testing facility, the

[[Page 423]]

sample may be obtained either from an indwelling arterial catheter or by 
direct arterial puncture. If possible, in order to evaluate exercise 
capacity more accurately, a test site should be selected that has the 
capability to measure minute ventilation, O2 consumption, and 
carbon dioxide (CO2) production. If the claimant fails to 
complete 4 to 6 minutes of steady state exercise, the testing laboratory 
should comment on the reason and report the actual duration and levels 
of exercise performed. This comment is necessary to determine if the 
individual's test performance was limited by lack of effort or other 
impairment (e.g., cardiac, peripheral vascular, musculoskeletal, 
neurological).
    The exercise test report should contain representative ECG strips 
taken before, during and after exercise; resting and exercise arterial 
blood gas values; treadmill speed and grade settings, or, if a bicycle 
ergometer was used, exercise levels expressed in watts or kpm/min; and 
the duration of exercise. Body weight also should be recorded. If 
measured, O2 consumption (STPD), minute ventilation (BTPS), 
and CO2 production (STPD) also should be reported. The 
altitude of the test site, its normal range of blood gas values, and the 
barometric pressure on the test date must be noted.
    G. Chronic cor pulmonale and pulmonary vascular disease. The 
establishment of an impairment attributable to irreversible cor 
pulmonale secondary to chronic pulmonary hypertension requires 
documentation by signs and laboratory findings of right ventricular 
overload or failure (e.g., an early diastolic right-sided gallop on 
auscultation, neck vein distension, hepatomegaly, peripheral edema, 
right ventricular outflow tract enlargement on x-ray or other 
appropriate imaging techniques, right ventricular hypertrophy on ECG, 
and increased pulmonary artery pressure measured by right heart 
catheterization available from treating sources). Cardiac 
catheterization will not be purchased. Because hypoxemia may accompany 
heart failure and is also a cause of pulmonary hypertension, and may be 
associated with hypoventilation and respiratory acidosis, arterial blood 
gases may demonstrate hypoxemia (decreased PO2), 
CO2 retention (increased PCO2), and acidosis 
(decreased pH). Polycythemia with an elevated red blood cell count and 
hematocrit may be found in the presence of chronic hypoxemia.
    P-pulmonale on the ECG does not establish chronic pulmonary 
hypertension or chronic cor pulmonale. Evidence of florid right heart 
failure need not be present at the time of adjudication for a listing 
(e.g., 3.09) to be satisfied, but the medical evidence of record should 
establish that cor pulmonale is chronic and irreversible.
    H. Sleep-related breathing disorders. Sleep-related breathing 
disorders (sleep apneas) are caused by periodic cessation of respiration 
associated with hypoxemia and frequent arousals from sleep. Although 
many individuals with one of these disorders will respond to prescribed 
treatment, in some, the disturbed sleep pattern and associated chronic 
nocturnal hypoxemia cause daytime sleepiness with chronic pulmonary 
hypertension and/or disturbances in cognitive function. Because daytime 
sleepiness can affect memory, orientation, and personality, a 
longitudinal treatment record may be needed to evaluate mental 
functioning. Not all individuals with sleep apnea develop a functional 
impairment that affects work activity. When any gainful work is 
precluded, the physiologic basis for the impairment may be chronic cor 
pulmonale. Chronic hypoxemia due to episodic apnea may cause pulmonary 
hypertension (see 3.00G and 3.09). Daytime somnolence may be associated 
with disturbance in cognitive vigilance. Impairment of cognitive 
function may be evaluated under organic mental disorders (12.02). If the 
disorder is associated with gross obesity, it should be evaluated under 
the applicable obesity listing.
    3.01  Category of Impairments, Respiratory System.
    3.02  Chronic pulmonary insufficiency.
    A. Chronic obstructive pulmonary disease, due to any cause, with the 
FEV1 equal to or less than the values specified in table I 
corresponding to the person's height without shoes. (In cases of marked 
spinal deformity, see 3.00E.);

                                 Table I                                
------------------------------------------------------------------------
                                                                  FEV1  
                                                                equal to
 Height without shoes (centimeters)     Height without shoes    or less 
                                              (inches)          than (L,
                                                                 BTPS)  
------------------------------------------------------------------------
154 or less.........................  60 or less.............       1.05
155-160.............................  61-63..................       1.15
161-165.............................  64-65..................       1.25
166-170.............................  66-67..................       1.35
171-175.............................  68-69..................       1.45
176-180.............................  70-71..................       1.55
181 or more.........................  72 or more.............       1.65
                                                                        
------------------------------------------------------------------------

Or

    B. Chronic restrictive ventilatory disease, due to any cause, with 
the FVC equal to or less than the values specified in Table II 
corresponding to the person's height without shoes. (In cases of marked 
spinal deformity, see 3.00E.);

                                Table II                                
------------------------------------------------------------------------
                                                               FVC equal
                                        Height without shoes     to or  
 Height without shoes (centimeters)           (inches)         less than
                                                               (L, BTPS)
------------------------------------------------------------------------
154 or less.........................  60 or less.............       1.25
155-160.............................  61-63..................       1.35

[[Page 424]]

                                                                        
161-165.............................  64-65..................       1.45
166-170.............................  66-67..................       1.55
171-175.............................  68-69..................       1.65
176-180.............................  70-71..................       1.75
181 or more.........................  72 or more.............       1.85
                                                                        
------------------------------------------------------------------------

Or

    C. Chronic impairment of gas exchange due to clinically documented 
pulmonary disease. With:
    1. Single breath DLCO (see 3.00F1) less than 10.5 ml/min/mm Hg or 
less than 40 percent of the predicted normal value. (Predicted values 
must either be based on data obtained at the test site or published 
values from a laboratory using the same technique as the test site. The 
source of the predicted values should be reported. If they are not 
published, they should be submitted in the form of a table or nomogram); 
or
    2. Arterial blood gas values of PO2 and simultaneously 
determined PCO2 measured while at rest (breathing room air, 
awake and sitting or standing) in a clinically stable condition on at 
least two occasions, three or more weeks apart within a 6-month period, 
equal to or less than the values specified in the applicable table III-A 
or III-B or III-C:

                              Table III.--A                             
     [Applicable at test sites less than 3,000 feet above sea level]    
------------------------------------------------------------------------
                                                           Arterial PO2 
                                                            equal to or 
               Arterial PCO2 (mm. Hg) and                 less than (mm.
                                                                Hg)     
------------------------------------------------------------------------
30 or below.............................................              65
31......................................................              64
32......................................................              63
33......................................................              62
34......................................................              61
35......................................................              60
36......................................................              59
37......................................................              58
38......................................................              57
39......................................................              56
40 or above.............................................              55
------------------------------------------------------------------------


                              Table III.--B                             
   [Applicable at test sites 3,000 through 6,000 feet above sea level]  
------------------------------------------------------------------------
                                                           Arterial PO2 
                                                            equal to or 
               Arterial PCO2 (mm. Hg) and                 less than (mm.
                                                                Hg)     
------------------------------------------------------------------------
30 or below.............................................              60
31......................................................              59
32......................................................              58
33......................................................              57
34......................................................              56
35......................................................              55
36......................................................              54
37......................................................              53
38......................................................              52
39......................................................              51
40 or above.............................................              50
------------------------------------------------------------------------


                              Table III.--C                             
       [Applicable at test sites over 6,000 feet above sea level]       
------------------------------------------------------------------------
                                                           Arterial PO2 
                                                          or equal to or
               Arterial PCO2 (mm. Hg) and                 less than (mm.
                                                                Hg)     
------------------------------------------------------------------------
30 or below.............................................              55
31......................................................              54
32......................................................              53
33......................................................              52
34......................................................              51
35......................................................              50
36......................................................              49
37......................................................              48
38......................................................              47
39......................................................              46
40 or above.............................................              45
                                                                        
------------------------------------------------------------------------

Or

    3. Arterial blood gas values of PO2 and simultaneously 
determined PCO2 during steady state exercise breathing room 
air (level of exercise equivalent to or less than 17.5 ml O2 
consumption/kg/min or 5 METs) equal to or less than the values specified 
in the applicable table III-A or III-B or III-C in 3.02C2.
    3.03  Asthma. With:
    A. Chronic asthmatic bronchitis. Evaluate under the criteria for 
chronic obstructive pulmonary disease in 3.02A;

Or

    B. Attacks (as defined in 3.00C), in spite of prescribed treatment 
and requiring physician intervention, occurring at least once every 2 
months or at least six times a year. Each in-patient hospitalization for 
longer than 24 hours for control of asthma counts as two attacks, and an 
evaluation period of at least 12 consecutive months must be used to 
determine the frequency of attacks.
    3.04  Cystic fibrosis. With:
    A. An FEV1 equal to or less than the appropriate value 
specified in table IV corresponding to the individual's height without 
shoes. (In cases of marked spinal deformity, see 3.00E.);

Or

    B. Episodes of bronchitis or pneumonia or hemoptysis (more than 
blood-streaked sputum) or respiratory failure (documented according to 
3.00C), requiring physician intervention, occurring at least once every 
2

[[Page 425]]

months or at least six times a year. Each inpatient hospitalization for 
longer than 24 hours for treatment counts as two episodes, and an 
evaluation period of at least 12 consecutive months must be used to 
determine the frequency of episodes;

Or

    C. Persistent pulmonary infection accompanied by superimposed, 
recurrent, symptomatic episodes of increased bacterial infection 
occurring at least once every 6 months and requiring intravenous or 
nebulization antimicrobial therapy.

                                Table IV                                
      [Applicable only for evaluation under 3.04A--cystic fibrosis]     
------------------------------------------------------------------------
                                                                  FEV1  
                                                                equal to
 Height without shoes (centimeters)     Height without shoes    or less 
                                              (inches)          than (L,
                                                                 BTPS)  
------------------------------------------------------------------------
154 or less.........................  60 or less.............       1.45
155-159.............................  61-62..................       1.55
160-164.............................  63-64..................       1.65
165-169.............................  65-66..................       1.75
170-174.............................  67-68..................       1.85
175-179.............................  69-70..................       1.95
180 or more.........................  71 or more.............       2.05
------------------------------------------------------------------------

    3.05  [Reserved]
    3.06  Pneumoconiosis (demonstrated by appropriate imaging 
techniques). Evaluate under the appropriate criteria in 3.02.
    3.07  Bronchiectasis (demonstrated by appropriate imaging 
techniques). With:
    A. Impairment of pulmonary function due to extensive disease. 
Evaluate under the appropriate criteria in 3.02;

Or

    B. Episodes of bronchitis or pneumonia or hemoptysis (more than 
blood-streaked sputum) or respiratory failure (documented according to 
3.00C), requiring physician intervention, occurring at least once every 
2 months or at least six times a year. Each in-patient hospitalization 
for longer than 24 hours for treatment counts as two episodes, and an 
evaluation of at least 12 consecutive months must be used to determine 
the frequency of episodes.
    3.08  Mycobacterial, mycotic, and other chronic persistent 
infections of the lung (see 3.00B). Evaluate under the appropriate 
criteria in 3.02.
    3.09  Cor pulmonale secondary to chronic pulmonary vascular 
hypertension. Clinical evidence of cor pulmonale (documented according 
to 3.00G) with:
    A. Mean pulmonary artery pressure greater than 40 mm Hg;

Or

    B. Arterial hypoxemia. Evaluate under the criteria in 3.02C2;

Or

    C. Evaluate under the applicable criteria in 4.02.
    3.10  Sleep-related breathing disorders. Evaluate under 3.09 
(chronic cor pulmonale), 9.09 (obesity), or 12.02 (organic mental 
disorders).

                       4.00  Cardiovascular System

    A. Introduction. The listings in this section describe impairments 
resulting from cardiovascular disease based on symptoms, physical signs, 
laboratory test abnormalities, and response to a regimen of therapy 
prescribed by a treating source. A longitudinal clinical record covering 
a period of not less than 3 months of observations and therapy is 
usually necessary for the assessment of severity and expected duration 
of cardiovascular impairment, unless the claim can be decided favorably 
on the basis of the current evidence. All relevant evidence must be 
considered in assessing disability.
    Many individuals, especially those who have listing-level 
impairments, will have received the benefit of medically prescribed 
treatment. Whenever there is evidence of such treatment, the 
longitudinal clinical record must include a description of the therapy 
prescribed by the treating source and response, in addition to 
information about the nature and severity of the impairment. It is 
important to document any prescribed therapy and response because this 
medical management may have improved the individual's functional status. 
The longitudinal record should provide information regarding functional 
recovery, if any.
    Some individuals will not have received ongoing treatment or have an 
ongoing relationship with the medical community despite the existence of 
a severe impairment(s). Unless the claim can be decided favorably on the 
basis of the current evidence, a longitudinal record is still important 
because it will provide information about such things as the ongoing 
medical severity of the impairment, the degree of recovery from cardiac 
insult, the level of the individual's functioning, and the frequency, 
severity, and duration of symptoms. Also, several listings include a 
requirement for continuing signs and symptoms despite a regimen of 
prescribed treatment. Even though an individual who does not receive 
treatment may not be able to show an impairment that meets the criteria 
of these listings, the individual may have an impairment(s) equivalent 
in severity to one of the listed impairments or be disabled because of a 
limited residual functional capacity.
    Indeed, it must be remembered that these listings are only examples 
of common cardiovascular disorders that are severe enough to prevent a 
person from engaging in gainful activity. Therefore, in any case in 
which an individual has a medically determinable

[[Page 426]]

impairment that is not listed, or a combination of impairments no one of 
which meets a listing, we will make a medical equivalence determination. 
Individuals who have an impairment(s) with a level of severity which 
does not meet or equal the criteria of the cardiovascular listings may 
or may not have the residual functional capacity (RFC) which would 
enable them to engage in substantial gainful activity. Evaluation of the 
impairment(s) of these individuals should proceed through the final 
steps of the sequential evaluation process (or, as appropriate, the 
steps in the medical improvement review standard).
    B. Cardiovascular impairment results from one or more of four 
consequences of heart disease:
    1. Chronic heart failure or ventricular dysfunction.
    2. Discomfort or pain due to myocardial ischemia, with or without 
necrosis of heart muscle.
    3. Syncope, or near syncope, due to inadequate cerebral perfusion 
from any cardiac cause such as obstruction of flow or disturbance in 
rhythm or conduction resulting in inadequate cardiac output.
    4. Central cyanosis due to right-to-left shunt, arterial 
desaturation, or pulmonary vascular disease.
    Impairment from diseases of arteries and veins may result from 
disorders of the vasculature in the central nervous system (11.04A, B), 
eyes (2.02-2.04), kidney (6.02), and other organs.
    C. Documentation. Each individual's file must include sufficiently 
detailed reports on history, physical examinations, laboratory studies, 
and any prescribed therapy and response to allow an independent reviewer 
to assess the severity and duration of the cardiovascular impairment.

                         1. Electrocardiography

    a. An original or legible copy of the 12-lead electrocardiogram 
(ECG) obtained at rest must be submitted, appropriately dated and 
labeled, with the standardization inscribed on the tracing. Alteration 
in standardization of specific leads (such as to accommodate large QRS 
amplitudes) must be identified on those leads.
    (1) Detailed descriptions or computer-averaged signals without 
original or legible copies of the ECG as described in subsection 4.00Cla 
are not acceptable.
    (2) The effects of drugs or electrolyte abnormalities must be 
considered as possible noncoronary causes of ECG abnormalities of 
ventricular repolarization, i.e., those involving the ST segment and T 
wave. If available, the predrug (especially digitalis glycoside) ECG 
should be submitted.
    (3) The term ``ischemic'' is used in 4.04A to describe an abnormal 
ST segment deviation. Nonspecific repolarization abnormalities should 
not be confused with ``ischemic'' changes.
    b. ECGs obtained in conjunction with treadmill, bicycle, or arm 
exercise tests should meet the following specifications:
    (1) ECGs must include the original calibrated ECG tracings or a 
legible copy.
    (2) A 12-lead baseline ECG must be recorded in the upright position 
before exercise.
    (3) A 12-lead ECG should be recorded at the end of each minute of 
exercise, including at the time the ST segment abnormalities reach or 
exceed the criteria for abnormality described in 4.04A or the individual 
experiences chest discomfort or other abnormalities, and also when the 
exercise test is terminated.
    (4) If ECG documentation of the effects of hyperventilation is 
obtained, the exercise test should be deferred for at least 10 minutes 
because metabolic changes of hyperventilation may alter the physiologic 
and ECG response to exercise.
    (5) Post-exercise ECGs should be recorded using a generally accepted 
protocol consistent with the prevailing state of medical knowledge and 
clinical practice.
    (6) All resting, exercise, and recovery ECG strips must have a 
standardization inscribed on the tracing. The ECG strips should be 
labeled to indicate the times recorded and the relationship to the stage 
of the exercise protocol. The speed and grade (treadmill test) or work 
rate (bicycle or arm ergometric test) should be recorded. The highest 
level of exercise achieved, blood pressure levels during testing, and 
the reason(s) for terminating the test (including limiting signs or 
symptoms) must be recorded.

                      2. Purchasing Exercise Tests

    a. It is well recognized by medical experts that exercise testing is 
the best tool currently available for estimating maximal aerobic 
capacity in individuals with cardiovascular impairments. Purchase of an 
exercise test may be appropriate when there is a question whether an 
impairment meets or is equivalent in severity to one of the listings, or 
when there is insufficient evidence in the record to evaluate aerobic 
capacity, and the claim cannot otherwise be favorably decided. Before 
purchasing an exercise test, a program physician, preferably one with 
experience in the care of patients with cardiovascular disease, must 
review the pertinent history, physical examinations, and laboratory 
tests to determine whether obtaining the test would present a 
significant risk to the individual (see 4.00C2c). Purchase may be 
indicated when there is no significant risk to exercise testing and 
there is no timely test of record. An exercise test is generally 
considered timely for 12 months after the date performed, provided there 
has been no

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change in clinical status that may alter the severity of the cardiac 
impairment.
    b. Methodology.
    (1) When an exercise test is purchased, it should be a ``sign-or 
symptom-limited'' test characterized by a progressive multistage 
regimen. A purchased exercise test must be performed using a generally 
accepted protocol consistent with the prevailing state of medical 
knowledge and clinical practice. A description of the protocol that was 
followed must be provided, and the test must meet the requirements of 
4.00C1b and this section. A pre-exercise posthyperventilation tracing 
may be essential for the proper evaluation of an ``abnormal'' test in 
certain circumstances, such as in women with evidence of mitral valve 
prolapse.
    (2) The exercise test should be paced to the capabilities of the 
individual and be supervised by a physician. With a treadmill test, the 
speed, grade (incline) and duration of exercise must be recorded for 
each exercise test stage performed. Other exercise test protocols or 
techniques that are used should utilize similar workloads.
    (3) Levels of exercise should be described in terms of workload and 
duration of each stage, e.g., treadmill speed and grade, or bicycle 
ergometer work rate in kpm/min or watts.
    (4) Normally, systolic blood pressure and heart rate increase 
gradually with exercise. A decrease in systolic blood pressure during 
exercise below the usual resting level is often associated with 
ischemia-induced left ventricular dysfunction resulting in decreased 
cardiac output. Some individuals (because of deconditioning or 
apprehension) with increased sympathetic responses may increase their 
systolic blood pressure and heart rate above their usual resting level 
just before and early into exercise. This occurrence may limit the 
ability to assess the significance of an early decrease in systolic 
blood pressure and heart rate if exercise is discontinued shortly after 
initiation. In addition, isolated systolic hypertension may be a 
manifestation of arteriosclerosis.
    (5) The exercise laboratory's physical environment, staffing, and 
equipment should meet the generally accepted standards for adult 
exercise test laboratories.
    c. Risk factors in exercise testing. The following are examples of 
situations in which exercise testing will not be purchased: unstable 
progressive angina pectoris, a history of acute myocardial infarction 
within the past 3 months, New York Heart Association (NYHA) class IV 
heart failure, cardiac drug toxicity, uncontrolled serious arrhythmia 
(including uncontrolled atrial fibrillation, Mobitz II, and third-degree 
block), Wolff-Parkinson-White syndrome, uncontrolled severe systemic 
arterial hypertension, marked pulmonary hypertension, unrepaired aortic 
dissection, left main stenosis of 50 percent or greater, marked aortic 
stenosis, chronic or dissecting aortic aneurysm, recent pulmonary 
embolism, hypertrophic cardiomyopathy, limiting neurological or 
musculoskeletal impairments, or an acute illness. In addition, an 
exercise test should not be purchased for individuals for whom the 
performance of the test is considered to constitute a significant risk 
by a program physician, preferably one experienced in the care of 
patients with cardiovascular disease, even in the absence of any of the 
above risk factors. In defining risk, the program physician, in 
accordance with the regulations and other instructions on consultative 
examinations, will generally give great weight to the treating 
physicians' opinions and will generally not override them. In the rare 
situation in which the program physician does override the treating 
source's opinion, a written rationale must be prepared documenting the 
reasons for overriding the opinion.
    d. In order to permit maximal, attainable restoration of functional 
capacity, exercise testing should not be purchased until 3 months after 
an acute myocardial infarction, surgical myocardial revascularization, 
or other open-heart surgical procedures. Purchase of an exercise test 
should also be deferred for 3 months after percutaneous transluminal 
coronary angioplasty because restenosis with ischemic symptoms may occur 
within a few months of angioplasty (see 4.00D). Also, individuals who 
have had a period of bedrest or inactivity (e.g., 2 weeks) that results 
in a reversible deconditioned state may do poorly if exercise testing is 
performed at that time.
    e. Evaluation.
    (1) Exercise testing is evaluated on the basis of the work level at 
which the test becomes abnormal, as documented by onset of signs or 
symptoms and any ECG abnormalities listed in 4.04A. The ability or 
inability to complete an exercise test is not, by itself, evidence that 
a person is free from ischemic heart disease. The results of an exercise 
test must be considered in the context of all of the other evidence in 
the individual's case record. If the individual is under the care of a 
treating physician for a cardiac impairment, and this physician has not 
performed an exercise test and there are no reported significant risks 
to testing (see 4.00C2c), a statement should be requested from the 
treating physician explaining why it was not done or should not be done 
before deciding whether an exercise test should be purchased. In those 
rare situations in which the treating source's opinion is overridden, 
follow 4.00C2c. If there is no treating physician, the program physician 
will be responsible for assessing the risk to exercise testing.
    (2) Limitations to exercise test interpretation include the presence 
of noncoronary or nonischemic factors that may influence the

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hemodynamic and ECG response to exercise, such as hypokalemia or other 
electrolyte abnormality, hyperventilation, vasoregulatory 
deconditioning, prolonged periods of physical inactivity (e.g., 2 weeks 
of bedrest), significant anemia, left bundle branch block pattern on the 
ECG (and other conduction abnormalities that do not preclude the 
purchase of exercise testing), and other heart diseases or abnormalities 
(particularly valvular heart disease). Digitalis glycosides may cause ST 
segment abnormalities at rest, during, and after exercise. Digitalis or 
other drug-related ST segment displacement, present at rest, may become 
accentuated with exercise and make ECG interpretation difficult, but 
such drugs do not invalidate an otherwise normal exercise test. 
Diuretic-induced hypokalemia and left ventricular hypertrophy may also 
be associated with repolarization changes and behave similarly. Finally, 
treatment with beta blockers slows the heart rate more at near-maximal 
exertion than at rest; this limits apparent chronotropic capacity.

                            3. Other Studies

    Information from two-dimensional and Doppler echocardiographic 
studies of ventricular size and function as well as radionuclide 
(thallium 201) myocardial ``perfusion'' or radionuclide 
(technetium 99m) ventriculograms (RVG or MUGA) may be useful. These 
techniques can provide a reliable estimate of ejection fraction. In 
selected cases, these tests may be purchased after a medical history and 
physical examination, report of chest x-rays, ECGs, and other 
appropriate tests have been evaluated, preferably by a program physician 
with experience in the care of patients with cardiovascular disease. 
Purchase should be considered when other information available is not 
adequate to assess whether the individual may have severe ventricular 
dysfunction or myocardial ischemia and there is no significant risk 
involved (follow 4.00C2a guides), and the claim cannot be favorably 
decided on any other basis.
    Exercise testing with measurement of maximal oxygen uptake (VO 
2) provides an accurate determination of aerobic capacity. An 
exercise test without measurement of oxygen uptake provides an estimate 
of aerobic capacity. When the results of tests with measurement of 
oxygen uptake are available, every reasonable effort should be made to 
obtain them.
    The recording of properly calibrated ambulatory ECGs for analysis of 
ST segment signals with a concomitantly recorded symptom and treatment 
log may permit more adequate evaluation of chest discomfort during 
activities of daily living, but the significance of these data for 
disability evaluation has not been established in the absence of 
symptoms (e.g., silent ischemia). This information (including selected 
segments of both the ECG recording and summary report of the patient 
diary) may be submitted for the record.
    4. Cardiac catheterization will not be purchased by the Social 
Security Administration.
    a. Coronary arteriography. If results of such testing are available, 
the report should be obtained and considered as to the quality and type 
of data provided and its relevance to the evaluation of the impairment. 
A copy of the report of the cardiac catheterization and ancillary 
studies should also be obtained. The report should provide information 
citing the method of assessing coronary arterial lumen diameter and the 
nature and location of obstructive lesions. Drug treatment at baseline 
and during the procedure should be reported. Coronary artery spasm 
induced by intracoronary catheterization is not to be considered 
evidence of ischemic disease. Some individuals with significant coronary 
atherosclerotic obstruction have collateral vessels that supply the 
myocardium distal to the arterial obstruction so that there is no 
evidence of myocardial damage or ischemia, even with exercise. When 
available, quantitative computer measurements and analyses should be 
considered in the interpretation of severity of stenotic lesions.
    b. Left ventriculography (by angiography). The report should 
describe the wall motion of the myocardium with regard to any areas of 
hypokinesis, akinesis, or dyskinesis, and the overall contraction of the 
ventricle as measured by the ejection fraction. Measurement of chamber 
volumes and pressures may be useful. When available, quantitative 
computer analysis provides precise measurement of segmental left 
ventricular wall thickness and motion. There is often a poor correlation 
between left ventricular function at rest and functional capacity for 
physical activity.
    D. Treatment and relationship to functional status.
    1. In general, conclusions about the severity of a cardiovascular 
impairment cannot be made on the basis of type of treatment rendered or 
anticipated. The overall clinical and laboratory evidence, including the 
treatment plan(s) or results, should be persuasive that a listing-level 
impairment exists. The amount of function restored and the time required 
for improvement after treatment (medical, surgical, or a prescribed 
program of progressive physical activity) vary with the nature and 
extent of the disorder, the type of treatment, and other factors. 
Depending upon the timing of this treatment in relation to the alleged 
onset date of disability, impairment evaluation may need to be deferred 
for a period of up to 3 months from the date of treatment to permit 
consideration of treatment effects. Evaluation should

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not be deferred if the claim can be favorably decided based upon the 
available evidence.
    2. The usual time after myocardial infarction, valvular and/or 
revascularization surgery for adequate assessment of the results of 
treatment is considered to be 3 months. If an exercise test is performed 
by a treating source within a week or two after angioplasty, and there 
is no significant change in clinical status during the 3-month period 
after the angioplasty that would invalidate the implications of the 
exercise test results, the exercise test results may be used to reflect 
functional capacity during the period in question. However, if the test 
was done immediately following an acute myocardial infarction or during 
a period of protracted inactivity, the results should not be projected 
to 3 months even if there is no change in clinical status.
    3. An individual who has undergone cardiac transplantation will be 
considered under a disability for 1 year following the surgery because, 
during the first year, there is a greater likelihood of rejection of the 
organ and recurrent infection. After the first year posttransplantation, 
continuing disability evaluation will be based upon residual impairment 
as shown by symptoms, signs, and laboratory findings. Absence of 
symptoms, signs, and laboratory findings indicative of cardiac 
dysfunction will be included in the consideration of whether medical 
improvement (as defined in Secs. 404.1579(b)(1) and (c)(1), 
404.1594(b)(1) and (c)(1), or 416.994(b)(1)(i) and (b)(2)(i), as 
appropriate) has occurred.
    E. Clinical syndromes.
    1. Chronic heart failure (ventricular dysfunction) is considered in 
these listings as one category whatever its etiology, i.e., 
atherosclerotic, hypertensive, rheumatic, pulmonary, congenital or other 
organic heart disease. Chronic heart failure may manifest itself by:
    a. Pulmonary or systemic congestion, or both; or
    b. Symptoms of limited cardiac output, such as weakness, fatigue, or 
intolerance of physical activity.
    For the purpose of 4.02A, pulmonary and systemic congestion are not 
considered to have been established unless there is or has been evidence 
of fluid retention, such as hepatomegaly or ascites, or peripheral or 
pulmonary edema of cardiac origin. The findings of fluid retention need 
not be present at the time of adjudication because congestion may be 
controlled with medication. Chronic heart failure due to limited cardiac 
output is not considered to have been established for the purpose of 
4.02B unless symptoms occur with ordinary daily activities, i.e., 
activity restriction as manifested by a need to decrease activity or 
pace, or to rest intermittently, and are associated with one or more 
physical signs or abnormal laboratory studies listed in 4.02B. These 
studies include exercise testing with ECG and blood pressure recording 
and/or appropriate imaging techniques, such as two-dimensional 
echocardiography or radionuclide or contrast ventriculography. The 
exercise criteria are outlined in 4.02B1. In addition, other abnormal 
symptoms, signs, or laboratory test results that lend credence to the 
impression of ventricular dysfunction should be considered.
    2. For the purposes of 4.03, hypertensive cardiovascular disease is 
evaluated by reference to the specific organ system involved (heart, 
brain, kidneys, or eyes). The presence of organic impairment must be 
established by appropriate physical signs and laboratory test 
abnormalities as specified in 4.02 or 4.04, or for the body system 
involved.
    3. Ischemic (coronary) heart disease may result in an impairment due 
to myocardial ischemia and/or ventricular dysfunction or infarction. For 
the purposes of 4.04, the clinical determination that discomfort of 
myocardial ischemic origin (angina pectoris) is present must be 
supported by objective evidence as described under 4.00Cl, 2, 3, or 4.
    a. Discomfort of myocardial ischemic origin (angina pectoris) is 
discomfort that is precipitated by effort and/or emotion and promptly 
relieved by sublingual nitroglycerin, other rapidly acting nitrates, or 
rest. Typically the discomfort is located in the chest (usually 
substernal) and described as crushing, squeezing, burning, aching, or 
oppressive. Sharp, sticking, or cramping discomfort is considered less 
common or atypical. Discomfort occurring with activity or emotion should 
be described specifically as to timing and usual inciting factors (type 
and intensity), character, location, radiation, duration, and response 
to nitrate therapy or rest.
    b. So-called anginal equivalent may be localized to the neck, 
jaw(s), or hand(s) and has the same precipitating and relieving factors 
as typical chest discomfort. Isolated shortness of breath (dyspnea) is 
not considered an anginal equivalent for purposes of adjudication.
    c. Variant angina of the Prinzmetal type, i.e., rest angina with 
transitory ST segment elevation on ECG, may have the same significance 
as typical angina, described in 4.00E3a.
    d. If there is documented evidence of silent ischemia or restricted 
activity to prevent chest discomfort, this information must be 
considered along with all available evidence to determine if an 
equivalence decision is appropriate.
    e. Chest discomfort of myocardial ischemic origin is usually caused 
by coronary artery disease. However, ischemic discomfort may be caused 
by noncoronary artery conditions, such as critical aortic stenosis, 
hypertrophic cardiomyopathy, pulmonary hypertension,

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or anemia. These conditions should be distinguished from coronary artery 
disease, because the evaluation criteria, management, and prognosis 
(duration) may differ from that of coronary artery disease.
    f. Chest discomfort of nonischemic origin may result from other 
cardiac conditions such as pericarditis and mitral valve prolapse. 
Noncardiac conditions may also produce symptoms mimicking that of 
myocardial ischemia. These conditions include gastrointestinal tract 
disorders, such as esophageal spasm, esophagitis, hiatal hernia, biliary 
tract disease, gastritis, peptic ulcer, and pancreatitis, and 
musculoskeletal syndromes, such as chest wall muscle spasm, chest wall 
syndrome (especially after coronary bypass surgery), costochondritis, 
and cervical or dorsal arthritis. Hyperventilation may also mimic 
ischemic discomfort. Such disorders should be considered before 
concluding that chest discomfort is of myocardial ischemic origin.

                     4. Peripheral Arterial Disease

    The level of impairment is based on the symptomatology, physical 
findings, Doppler studies before and after a standard exercise test, or 
angiographic findings.
    The requirements for evaluating peripheral arterial disease in 4.12B 
are based on the ratio of the systolic blood pressure at the ankle to 
the systolic blood pressure at the brachial artery, determined in the 
supine position at the same time. Techniques for obtaining ankle 
systolic blood pressures include Doppler, plethysmographic studies, or 
other techniques.
    Listing 4.12B1 is met when the resting ankle/brachial systolic blood 
pressure ratio is less than 0.50. Listing 4.12B2 provides additional 
criteria for evaluating peripheral arterial impairment on the basis of 
exercise studies when the resting ankle/brachial systolic blood pressure 
ratio is 0.50 or above. The decision to obtain exercise studies should 
be based on an evaluation of the existing clinical evidence, but 
exercise studies are rarely warranted when the resting ankle-over-
brachial systolic blood pressure ratio is 0.80 or above. The results of 
exercise studies should describe the level of exercise, e.g., speed and 
grade of the treadmill settings, the duration of exercise, symptoms 
during exercise, the reasons for stopping exercise if the expected level 
of exercise was not attained, blood pressures at the ankle and other 
pertinent sites measured after exercise, and the time required to return 
the systolic blood pressure toward or to the pre-exercise level. When an 
exercise Doppler study is purchased by the Social Security 
Administration, the requested exercise must be on a treadmill at 2 mph 
on a 10 or 12 percent grade for 5 minutes. Exercise studies should not 
be performed on individuals for whom exercise poses a significant risk.
    Application of the criteria in 4.12B may be limited in individuals 
who have marked calcific (Monckeberg's) sclerosis of the peripheral 
arteries or marked small vessel disease associated with diabetes 
mellitus.

          4.01  Category of Impairments, Cardiovascular System

    4.02  Chronic heart failure while on a regimen of prescribed 
treatment (see 4.00A if there is no regimen of prescribed treatment). 
With one of the following:
    A. Documented cardiac enlargement by appropriate imaging techniques 
(e.g., a cardiothoracic ratio of greater than 0.50 on a PA chest x-ray 
with good inspiratory effort or left ventricular diastolic diameter of 
greater than 5.5 cm on two-dimensional echocardiography), resulting in 
inability to carry on any physical activity, and with symptoms of 
inadequate cardiac output, pulmonary congestion, systemic congestion, or 
anginal syndrome at rest (e.g., recurrent or persistent fatigue, 
dyspnea, orthopnea, anginal discomfort);

OR

    B. Documented cardiac enlargement by appropriate imaging techniques 
(see 4.02A) or ventricular dysfunction manifested by S3, abnormal wall 
motion, or left ventricular ejection fraction of 30 percent or less by 
appropriate imaging techniques; and
    1. Inability to perform on an exercise test at a workload equivalent 
to 5 METs or less due to symptoms of chronic heart failure, or, in rare 
instances, a need to stop exercise testing at less than this level of 
work because of:
    a. Three or more consecutive ventricular premature beats or three or 
more multiform beats; or
    b. Failure to increase systolic blood pressure by 10 mmHg, or 
decrease in systolic pressure below the usual resting level (see 
4.00C2b); or
    c. Signs attributable to inadequate cerebral perfusion, such as 
ataxic gait or mental confusion; and
    2. Resulting in marked limitation of physical activity, as 
demonstrated by fatigue, palpitation, dyspnea, or anginal discomfort on 
ordinary physical activity, even though the individual is comfortable at 
rest;

OR

    C. Cor pulmonale fulfilling the criteria in 4.02A or B.
    4.03  Hypertensive cardiovascular disease. Evaluate under 4.02 or 
4.04, or under the criteria for the affected body system (2.02 through 
2.04, 6.02, or 11.04A or B).
    4.04  Ischemic heart disease, with chest discomfort associated with 
myocardial ischemia, as described in 4.00E3, while on a regimen of 
prescribed treatment (see 4.00A if there is no regimen of prescribed 
treatment). With one of the following:

[[Page 431]]

    A. Sign- or symptom-limited exercise test demonstrating at least one 
of the following manifestations at a workload equivalent to 5 METs or 
less:
    1. Horizontal or downsloping depression, in the absence of digitalis 
glycoside therapy and/or hypokalemia, of the ST segment of at least 
-0.10 millivolts (-1.0 mm) in at least 3 consecutive complexes that are 
on a level baseline in any lead (other than aVR) and that have a typical 
ischemic time course of development and resolution (progression of 
horizontal or downsloping ST depression with exercise, and persistence 
of depression of at least -0.10 millivolts for at least 1 minute of 
recovery); or
    2. An upsloping ST junction depression, in the absence of digitalis 
glycoside therapy and/or hypokalemia, in any lead (except aVR) of at 
least -0.2 millivolts or more for at least 0.08 seconds after the J 
junction and persisting for at least 1 minute of recovery; or
    3. At least 0.1 millivolt (1 mm) ST elevation above resting baseline 
during both exercise and 3 or more minutes of recovery in ECG leads with 
low R and T waves in the leads demonstrating the ST segment 
displacement; or
    4. Failure to increase systolic pressure by 10 mmHg, or decrease in 
systolic pressure below usual clinical resting level (see 4.00C2b); or
    5. Documented reversible radionuclide ``perfusion'' 
(thallium201) defect at an exercise level equivalent to 5 
METs or less;

OR

    B. Impaired myocardial function, documented by evidence (as outlined 
under 4.00C3 or 4.00C4b) of hypokinetic, akinetic, or dyskinetic 
myocardial free wall or septal wall motion with left ventricular 
ejection fraction of 30 percent or less, and an evaluating program 
physician, preferably one experienced in the care of patients with 
cardiovascular disease, has concluded that performance of exercise 
testing would present a significant risk to the individual, and 
resulting in marked limitation of physical activity, as demonstrated by 
fatigue, palpitation, dyspnea, or anginal discomfort on ordinary 
physical activity, even though the individual is comfortable at rest;

OR

    C. Coronary artery disease, demonstrated by angiography (obtained 
independent of Social Security disability evaluation), and an evaluating 
program physician, preferably one experienced in the care of patients 
with cardiovascular disease, has concluded that performance of exercise 
testing would present a significant risk to the individual, with both 1 
and 2:
    1. Angiographic evidence revealing:
    a. 50 percent or more narrowing of a nonbypassed left main coronary 
artery; or
    b. 70 percent or more narrowing of another nonbypassed coronary 
artery; or
    c. 50 percent or more narrowing involving a long (greater than 1 cm) 
segment of a nonbypassed coronary artery; or
    d. 50 percent or more narrowing of at least 2 nonbypassed coronary 
arteries; or
    e. Total obstruction of a bypass graft vessel; and
    2. Resulting in marked limitation of physical activity, as 
demonstrated by fatigue, palpitation, dyspnea, or anginal discomfort on 
ordinary physical activity, even though the individual is comfortable at 
rest.
    4.05  Recurrent arrhythmias, not related to reversible causes such 
as electrolyte abnormalities or digitalis glycoside or antiarrhythmic 
drug toxicity, resulting in uncontrolled repeated episodes of cardiac 
syncope or near syncope and arrhythmia despite prescribed treatment (see 
4.00A if there is no prescribed treatment), documented by resting or 
ambulatory (Holter) electrocardiography coincident with the occurrence 
of syncope or near syncope.
    4.06  Symptomatic congenital heart disease (cyanotic or acyanotic), 
documented by appropriate imaging techniques (as outlined under 4.00C3) 
or cardiac catheterization. With one of the following:
    A. Cyanosis at rest, and:
    1. Hematocrit of 55 percent or greater, or
    2. Arterial O2 saturation of less than 90 percent in room 
air, or resting arterial PO2 of 60 Torr or less;

OR

    B. Intermittent right-to-left shunting resulting in cyanosis on 
exertion (e.g., Eisenmenger's physiology) and with arterial 
PO2 of 60 Torr or less at a workload equivalent to 5 METs or 
less;

OR

    C. Chronic heart failure with evidence of ventricular dysfunction, 
as described in 4.02;

OR

    D. Recurrent arrhythmias as described in 4.05;

OR

    E. Secondary pulmonary vascular obstructive disease with a mean 
pulmonary arterial pressure elevated to at least 70 percent of the mean 
systemic arterial pressure.
    4.07  Valvular heart disease or other stenotic defects, or valvular 
regurgitation, documented by appropriate imaging techniques or cardiac 
catheterization. Evaluate under the criteria in 4.02, 4.04, 4.05, or 
11.04.
    4.08  Cardiomyopathies, documented by appropriate imaging techniques 
or cardiac catheterization. Evaluate under the criteria in 4.02, 4.04, 
4.05, or 11.04.
    4.09  Cardiac transplantation. Consider under a disability for 1 
year following surgery; thereafter, reevaluate residual impairment under 
4.02 to 4.08.

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    4.10  Aneurysm of aorta or major branches, due to any cause (e.g., 
atherosclerosis, cystic medial necrosis, Marfan syndrome, trauma), 
demonstrated by an appropriate imaging technique. With one of the 
following:
    A. Acute or chronic dissection not controlled by prescribed medical 
or surgical treatment;

OR

    B. Chronic heart failure as described under 4.02;

OR

    C. Renal failure as described under 6.02;

OR

    D. Neurological complications as described under 11.04.
    4.11  Chronic venous insufficiency of a lower extremity. With 
incompetency or obstruction of the deep venous system and one of the 
following:
    A. Extensive brawny edema;

OR

    B. Superficial varicosities, stasis dermatitis, and recurrent or 
persistent ulceration which has not healed following at least 3 months 
of prescribed medical or surgical therapy.
    4.12  Peripheral arterial disease. With one of the following:
    A. Intermittent claudication with failure to visualize (on 
arteriogram obtained independent of Social Security disability 
evaluation) the common femoral or deep femoral artery in one extremity;

OR

    B. Intermittent claudication with marked impairment of peripheral 
arterial circulation as determined by Doppler studies showing:
    1. Resting ankle/brachial systolic blood pressure ratio of less than 
0.50; or
    2. Decrease in systolic blood pressure at the ankle on exercise (see 
4.00E4) of 50 percent or more of pre-exercise level at the ankle, and 
requiring 10 minutes or more to return to pre-exercise level;

OR

    C. Amputation at or above the tarsal region due to peripheral 
vascular disease.

                         5.00  Digestive System

    A. Disorders of the digestive system which result in a marked 
impairment usually do so because of interference with nutrition, 
multiple recurrent inflammatory lesions, or complications of disease, 
such as fistulae, abscesses, or recurrent obstruction. Such 
complications usually respond to treatment. These complications must be 
shown to persist on repeated examinations despite therapy for a 
reasonable presumption to be made that a marked impairment will last for 
a continuous period of at least 12 months.
    B. Malnutrition or weight loss from gastrointestinal disorders. When 
the primary disorder of the digestive tract has been established (e.g. 
enterocolitis, chronic pancreatitis, postgastrointestinal resection, or 
esophageal stricture, stenosis, or obstruction), the resultant 
interference with nutrition will be considered under the criteria in 
5.08. This will apply whether the weight loss is due to primary or 
secondary disorders of malabsorption, malassimilation or obstruction. 
However, weight loss not due to diseases of the digestive tract, but 
associated with psychiatric or primary endocrine or other disorders, 
should be evaluated under the appropriate criteria for the underlying 
disorder.
    C. Surgical diversion of the intestinal tract, including colostomy 
or ileostomy, are not listed since they do not represent impairments 
which preclude all work activity if the individual is able to maintain 
adequate nutrition and function of the stoma. Dumping syndrome which may 
follow gastric resection rarely represents a marked impairment which 
would continue for 12 months. Peptic ulcer disease with recurrent 
ulceration after definitive surgery ordinarily responds to treatment. A 
recurrent ulcer after definitive surgery must be demonstrated on 
repeated upper gastrointestinal roentgenograms or gastroscopic 
examinations despite therapy to be considered a severe impairmentich 
will last for at least 12 months. Definitive surgical procedures are 
those designed to control the ulcer disease process (i.e., vagotomy and 
pyloroplasty, subtotal gastrectomy, etc.). Simple closure of a 
perforated ulcer does not constitute definitive surgical therapy for 
peptic ulcer disease.
    5.01  Category of Impairments, Digestive System
    5.02  Recurrent upper gastrointestinal hemorrhage from undetermined 
cause with anemia manifested by hematocrit of 30 percent or less on 
repeated examinations.
    5.03  Stricture, stenosis, or obstruction of the esophagus 
(demonstrated by X-ray or endoscopy) with weight loss as described under 
Sec. 5.08.
    5.04  Peptic ulcer disease (demonstrated by X-ray or endoscopy). 
With:
    A. Recurrent ulceration after definitive surgery persistent despite 
therapy; or
    B. Inoperable fistula formation; or
    C. Recurrent obstruction demonstrated by X-ray or endoscopy. or
    D. Weight loss as described under Sec. 5.08.
    5.05  Chronic liver disease (e.g., portal, postnecrotic, or biliary 
cirrhosis; chronic active hepatitis; Wilson's disease). With:
    A. Esophageal varices (demonstrated by X-ray or endoscopy) with a 
documented history of massive hemorrhage attributable to these varices. 
Consider under a disability for 3 years following the last massive 
hemorrhage; thereafter, evaluate the residual impairment; or

[[Page 433]]

    B. Performance of a shunt operation for esophageal varices. Consider 
under a disability for 3 years following surgery; thereafter, evaluate 
the residual impairment; or
    C. Serum bilirubin of 2.5 mg. per deciliter (100 ml.) or greater 
persisting on repeated examinations for at least 5 months; or
    D. Ascites, not attributable to other causes, recurrent or 
persisting for at least 5 months, demonstrated by abdominal paracentesis 
or associated with persistent hypoalbuminemia of 3.0 gm. per deciliter 
(100 ml.) or less; or
    E. Hepatic encephalopathy. Evaluate under the criteria in listing 
12.02; or
    F. Confirmation of chronic liver disease by liver biopsy (obtained 
independent of Social Security disability evaluation) and one of the 
following:
    1. Ascites not attributable to other causes, recurrent or persisting 
for at least 3 months, demonstrated by abdominal paracentesis or 
associated with persistent hypoalbuminemia of 3.0 gm. per deciliter (100 
ml.) or less; or
    2. Serum bilirubin of 2.5 mg. per deciliter (100 ml) or greater on 
repeated examinations for at least 3 months; or
    3. Hepatic cell necrosis or inflammation, persisting for at least 3 
months, documented by repeated abnormalities of prothrombin time and 
enzymes indicative of hepatic dysfunction.
    5.06  Chronic ulcerative or granulomatous colitis (demonstrated by 
endoscopy, barium enema, biopsy, or operative findings). With:
    A. Recurrent bloody stools documented on repeated examinations and 
anemia manifested by hematocrit of 30 percent or less on repeated 
examinations; or
    B. Persistent or recurrent systemic manifestations, such as 
arthritis, iritis, fever, or liver dysfunction, not attributable to 
other causes; or
    C. Intermittent obstruction due to intractable abscess, fistula 
formation, or stenosis; or
    D. Recurrence of findings of A, B, or C above after total colectomy; 
or
    E. Weight loss as described under Sec. 5.08.
    5.07  Regional enteritis (demonstrated by operative findings, barium 
studies, biopsy, or endoscopy). With:
    A. Persistent or recurrent intestinal obstruction evidenced by 
abdominal pain, distention, nausea, and vomiting and accompanied by 
stenotic areas of small bowel with proximal intestinal dilation; or
    B. Persistent or recurrent systemic manifestations such as 
arthritis, iritis, fever, or liver dysfunction, not attributable to 
other causes; or
    C. Intermittent obstruction due to intractable abscess or fistula 
formation; or
    D. Weight loss as described under Sec. 5.08.
    5.08  Weight loss due to any persisting gastrointestinal disorder: 
(The following weights are to be demonstrated to have persisted for at 
least 3 months despite prescribed therapy and expected to persist at 
this level for at least 12 months.) With:
    A. Weight equal to or less than the values specified in Table I or 
II; or
    B. Weight equal to or less than the values specified in Table III or 
IV and one of the following abnormal findings on repeated examinations:
    1. Serum albumin of 3.0 gm. per deciliter (100 ml.) or less; or
    2. Hematocrit of 30 percent or less; or
    3. Serum calcium of 8.0 mg. per deciliter (100 ml.) (4.0 mEq./L) or 
less; or
    4. Uncontrolled diabetes mellitus due to pancreatic dysfunction with 
repeated hyperglycemia, hypoglycemia, or ketosis; or
    5. Fat in stool of 7 gm. or greater per 24-hour stool specimen; or
    6. Nitrogen in stool of 3 gm, or greater per 24-hour specimen; or
    7. Persistent or recurrent ascites or edema not attributable to 
other causes.
    Tables of weight reflecting malnutrition scaled according to height 
and sex--To be used only in connection with 5.08.

                              Table I--Men                              
------------------------------------------------------------------------
                                                                 Weight 
                      Height (inches) \1\                       (pounds)
------------------------------------------------------------------------
61............................................................        90
62............................................................        92
63............................................................        94
64............................................................        97
65............................................................        99
66............................................................       102
67............................................................       106
68............................................................       109
69............................................................       112
70............................................................       115
71............................................................       118
72............................................................       122
73............................................................       125
74............................................................       128
75............................................................       131
76............................................................       134
------------------------------------------------------------------------
\1\ Height measured without shoes.                                      


                             Table II--Women                            
------------------------------------------------------------------------
                                                                 Weight 
                      Height (inches) \1\                       (pounds)
------------------------------------------------------------------------
58............................................................        77
59............................................................        79
60............................................................        82
61............................................................        84
62............................................................        86
63............................................................        89
64............................................................        91
65............................................................        94
66............................................................        98
67............................................................       101
68............................................................       104
69............................................................       107
70............................................................       110
71............................................................       114
72............................................................       117
73............................................................       120
------------------------------------------------------------------------
\1\ Height measured without shoes.                                      

[[Page 434]]

                                                                        


                             Table III--Men                             
------------------------------------------------------------------------
                                                                 Weight 
                      Height (inches) \1\                       (pounds)
------------------------------------------------------------------------
61............................................................        95
62............................................................        98
63............................................................       100
64............................................................       103
65............................................................       106
66............................................................       109
67............................................................       112
68............................................................       116
69............................................................       119
70............................................................       122
71............................................................       126
72............................................................       129
73............................................................       133
74............................................................       136
75............................................................       139
76............................................................       143
------------------------------------------------------------------------
\1\ Height measured without shoes.                                      


                             Table IV--Women                            
------------------------------------------------------------------------
                                                                 Weight 
                      Height (inches) \1\                       (pounds)
------------------------------------------------------------------------
58............................................................        82
59............................................................        84
60............................................................        87
61............................................................        89
62............................................................        92
63............................................................        94
64............................................................        97
65............................................................       100
66............................................................       104
67............................................................       107
68............................................................       111
69............................................................       114
70............................................................       117
71............................................................       121
72............................................................       124
73............................................................       128
------------------------------------------------------------------------
\1\ Height measured without shoes.                                      

                       6.00  Genito-Urinary System

    A. Determination of the presence of chronic renal disease will be 
based upon (1) a history, physical examination, and laboratory evidence 
of renal disease, and (2) indications of its progressive nature or 
laboratory evidence of deterioration of renal function.
    B. Nephrotic Syndrome. The medical evidence establishing the 
clinical diagnosis must include the description of extent of tissue 
edema, including pretibial, periorbital, or presacral edema. The 
presence of ascites, pleural effusion, pericardial effusion, and 
hydroarthrosis should be described if present. Results of pertinent 
laboratory tests must be provided. If a renal biopsy has been performed, 
the evidence should include a copy of the report of microscopic 
examination of the specimen. Complications such as severe orthostatic 
hypotension, recurrent infections or venous thromboses should be 
evaluated on the basis of resultant impairment.
    C. Hemodialysis, peritioneal dialysis, and kidney transplantation. 
When an individual is undergoing periodic dialysis because of chronic 
renal disease, severity of impairment is reflected by the renal function 
prior to the institution of dialysis.
    The amount of function restored and the time required to effect 
improvement in an individual treated by renal transplant depend upon 
various factors, including adequacy of post transplant renal function, 
incidence and severity of renal infection, occurrence of rejection 
crisis, the presence of systemic complications (anemia, neunropathy, 
etc.) and side effects of corticosteroids or immuno-suppressive agents. 
A convalesent period of at least 12 months is required before it can be 
reasonably determined whether the individual has reached a point of 
stable medical improvement.
    D. Evaluate associated disorders and complications according to the 
appropriate body system Listing.
    6.01  Category of Impairments, Genito-Urinary System
    6.02  Impairment of renal function, due to any chronic renal disease 
expected to last 12 months (e.g., hypertensive vascular disease, chronic 
nephritis, nephrolithiasis, polycystic disease, bilateral 
hydronephrosis, etc.) With:
    A. Chronic hemodialysis or peritoneal dialysis necessitated by 
irreversible renal failure; or
    B. Kidney transplant. Consider under a disability for 12 months 
following surgery; thereafter, evaluate the residual impairment (see 
6.00C); or
    C. Persistent elevation of serum creatine in to 4 mg. per deciliter 
(100 ml.) or greater or reduction of creatinine clearance to 20 ml. per 
minute (29 liters/24 hours) or less, over at least 3 months, with one of 
the following:
    1. Renal osteodystrophy manifested by severe bone pain and 
appropriate radiographic abnormalities (e.g., osteitis fibrosa, marked 
osteoporosis, pathologic fractures); or
    2. A clinical episode of pericarditis; or
    3. Persistent motor or sensory neuropathy; or
    4. Intractable pruritus; or
    5. Persistent fluid overload syndrome resulting in diastolic 
hypertension (110 mm. or above) or signs of vascular congestion; or
    6. Persistent anorexia with recent weight loss and current weight 
meeting the values in 5.08, Table III or IV; or
    7. Persistent hematocrits of 30 percent or less.
    6.06  Nephrotic syndrome, with significant anasarca, persistent for 
at least 3 months despite prescribed therapy. With:
    A. Serum albumin of 3.0 gm. per deciler (100 ml.) or less and 
protenuria of 3.5 gm. per 24 hours or greater; or
    B. Proteinuria of 10.0 gm. per 24 hours or greater.

[[Page 435]]

                    7.00  Hemic and Lymphatic System

    A. Impairment caused by anemia should be evaluated according to the 
ability of the individual to adjust to the reduced oxygen carrying 
capacity of the blood. A gradual reduction in red cell mass, even to 
very low values, is often well tolerated in individuals with a healthy 
cardiovascular system.
    B. Chronicity is indicated by persistence of the condition for at 
least 3 months. The laboratory findings cited must reflect the values 
reported on more than one examination over that 3-month period.
    C. Sickle cell disease refers to a chronic hemolytic anemia 
associated with sickle cell hemoglobin, either homozygous or in 
combination with thalassemia or with another abnormal hemoglobin (such 
as C or F).
    Appropriate hematologic evidence for sickle cell disease, such as 
hemoglobin electrophoresis, must be included. Vasoocclusive or aplastic 
episodes should be documented by description of severity, frequency, and 
duration.
    Major visceral episodes include meningitis, osteomyelitis, pulmonary 
infections or infarctions, cerebrovascular accidents, congestive heart 
failure, genito-urinary involvement, etc.
    D. Coagulation defects. Chronic inherited coagulation disorders must 
be documented by appropriate laboratory evidence. Prophylactic therapy 
such as with antihemophilic globulin (AHG) concentrate does not in 
itself imply severity.
    E. Acute leukemia. Initial diagnosis of acute leukemia must be based 
upon definitive bone marrow pathologic evidence. Recurrent disease may 
be documented by peripheral blood, bone marrow, or cerebrospinal fluid 
examination. The pathology report must be included.
    The acute phase of chronic myelocytic (granulocytic) leukemia should 
be considered under the requirements for acute leukemia.
    The criteria in 7.11 contain the designated duration of disability 
implicit in the finding of a listed impairment. Following the designated 
time period, a documented diagnosis itself is no longer sufficient to 
establish a marked impairment. The level of any remaining impairment 
must be evaluated on the basis of the medical evidence.
    7.01  Category of Impairments, Hemic and Lymphatic System
    7.02  Chronic anemia (hematocrit persisting at 30 percent or less 
due to any cause). With:
    A. Requirement of one or more blood transfusions on an average of at 
least once every 2 months; or
    B. Evaluation of the resulting impairment under criteria for the 
affected body system.
    7.05  Sickle cell disease, or one of its variants. With:
    A. Documented painful (thrombotic) crises occurring at least three 
times during the 5 months prior to adjudication; or
    B. Requiring extended hospitalization (beyond emergency care) at 
least three times during the 12 months prior to adjudication; or
    C. Chronic, severe anemia with persistence of hematocrit of 26 
percent or less; or
    D. Evaluate the resulting impairment under the criteria for the 
affected body system.
    7.06  Chronic thrombocytopenia (due to any cause) with platelet 
counts repeatedly below 40,000/cubic millimeter. With:
    A. At least one spontaneous hemorrhage, requiring transfusion, 
within 5 months prior to adjudication; or
    B. Intracranial bleeding within 12 months prior to adjudication.
    7.07  Hereditary telangiectasia with hemorrhage requiring 
transfusion at least three times during the 5 months prior to 
adjudication.
    7.08  Coagulation defects (hemophilia or a similar disorder) with 
spontaneous hemorrhage requiring transfusion at least three times during 
the 5 months prior to adjudication.
    7.09  Polycythemia vera (with erythrocytosis, splenomegaly, and 
leukocytosis or thrombocytosis). Evaluate the resulting impairment under 
the criteria for the affected body system.
    7.10  Myelofibrosis (myeloproliferative syndrome). With:
    A. Chronic anemia. Evaluate according to the criteria of Sec. 7.02; 
or
    B. Documented recurrent systemic bacterial infections occurring at 
least 3 times during the 5 months prior to adjudication; or
    C. Intractable bone pain with radiologic evidence of osteosclerosis.
    7.11  Acute leukemia. Consider under a disability for 2\1/2\ years 
from the time of initial diagnosis.
    7.12  Chronic leukemia. Evaluate according to the criteria of 7.02, 
7.06, 7.10B, 7.11, 7.17, or 13.06A.
    7.13  Lymphomas. Evaluate under the criteria in 13.06A.
    7.14  Macroglobulinemia or heavy chain disease, confirmed by serum 
or urine protein electrophoresis or immunoelectrophoresias. Evaluate 
impairment under criteria for affected body system or under 7.02, 7.06, 
or 7.08.
    7.15  Chronic granulocytopenia (due to any cause). With both A and 
B:
    A. Absolute neutrophil counts repeatedly below 1,000 cells/cubic 
millimeter; and
    B. Documented recurrent systemic bacterial infections occurring at 
least 3 times during the 5 months prior to adjudication.
    7.16  Myeloma (confirmed by appropriate serum or urine protein 
electrophoresis and bone marrow findings). With:

[[Page 436]]

    A. Radiologic evidence of bony involvement with intractable bone 
pain; or
    B. Evidence of renal impairment as described in 6.02; or
    C. Hypercalcemia with serum calcium levels persistently greater than 
11 mg. per deciliter (100 ml.) for at least 1 month despite prescribed 
therapy; or
    D. Plasma cells (100 or more cells/cubic millimeter) in the 
peripheral blood.
    7.17  Aplastic anemias or hematologic malignancies (excluding acute 
leukemia): With bone marrow transplantation. Consider under a disability 
for 12 months following transplantation; thereafter, evaluate according 
to the primary characteristics of the residual impairment.

                               8.00  Skin

    A. Skin lesions may result in a marked, long-lasting impairment if 
they involve extensive body areas or critical areas such as the hands or 
feet and become resistant to treatment. These lesions must be shown to 
have persisted for a sufficient period of time despite therapy for a 
reasonable presumption to be made that a marked impairment will last for 
a continuous period of at least 12 months. The treatment for some of the 
skin diseases listed in this section may require the use of high dosage 
of drugs with possible serious side effects; these side effects should 
be considered in the overall evaluation of impairment.
    B. When skin lesions are associated with systemic disease and where 
that is the predominant problems, evaluation should occur according to 
the criteria in the appropriate section. Disseminated (systemic) lupus 
erythematosus and scleroderma usually involve more than one body system 
and should be evaluated under 14.02 and 14.04. Neoplastic skin lesions 
should be evaluated under 13.00ff. When skin lesions (including burns) 
are associated with contractures or limitation of joint motion, that 
impairment should be evaluated under 1.00ff.
    8.01  Category of Impairments, Skin
    8.02  Exfoliative dermatitis, ichthyosis, ichthyosiform 
erythroderma. With extensive lesions not responding to prescribed 
treatment.
    8.03  Pemphigus, erythema multiforme bullosum, bullous pemphigoid, 
dermatitis herpetiformis. With extensive lesions not responding to 
prescribed treatment.
    8.04  Deep mycotic infections. With extensive fungating, ulcerating 
lesions not responding to prescribed treatment.
    8.05  Psoriasis, atopic dermatitis, dyshidrosis. With extensive 
lesions, including involvement of the hands or feet which impose a 
marked limitation of function and which are not responding to prescribed 
treatment.
    8.06  Hydradenitis suppurative, acne conglobata. With extensive 
lesions involving the axillae or perineum not responding to prescribed 
medical treatment and not amendable to surgical treatment.

                   9.00  Endocrine System and Obesity

    Cause of impairment. Impairment is caused by overproduction or 
underproduction of hormones, resulting in structural or functional 
changes in the body. Where involvement of other organ systems has 
occurred as a result of a primary endocrine disorder, these impairments 
should be evaluated according to the criteria under the appropriate 
sections.
    Long-term massive obesity will usually be associated with disorders 
of the musculoskeletal, cardiovascular, peripheral vascular, and 
pulmonary systems, and the occurrence of these disorders is the major 
cause of disability at the listing level. Extreme obesity results in 
restrictions imposed by body weight and the additional restrictions 
imposed by disturbances in other body systems.
    The weight-bearing criterion in 9.09A refers to the lumbosacral 
spine. The cervical and thoracic spines are not considered weight-
bearing.
    9.01  Category of Impairments, Endocrine System and Obesity
    9.02  Thyroid Disorders. With:
    A. Progressive exophthalmos as measured by exophthalmometry; or
    B. Evaluate the resulting impairment under the criteria for the 
affected body system.
    9.03  Hyperparathyroidism. With:
    A. Generalized decalcification of bone on X-ray study and elevation 
of plasma calcium to 11 mg. per deciliter (100 ml.) or greater; or
    B. A resulting impairment. Evaluate according to the criteria in the 
affected body system.
    9.04  Hypoparathyroidism. With:
    A. Severe recurrent tetany; or
    B. Recurrent generalized convulsions; or
    C. Lenticular cataracts. Evaluate under the criteria in 2.00ff.
    9.05  Neurohypophyseal insufficiency (diabetes insipidus). With 
urine specific gravity of 1.005 or below, persistent for at least 3 
months and recurrent dehydration.
    9.06  Hyperfunction of the adrenal cortex. Evaluate the resulting 
impairment under the criteria for the affected body system.
    9.08  Diabetes mellitus. With:
    A. Neuropathy demonstrated by significant and persistent 
disorganization of motor function in two extremities resulting in 
sustained disturbance of gross and dexterous movements, or gait and 
station (see 11.00C); or
    B. Acidosis occurring at least on the average of once every 2 months 
documented by appropriate blood chemical tests (pH or pCO2 or 
bicarbonate levels); or
    C. Amputation at, or above, the tarsal region due to diabetic 
necrosis or peripheral arterial disease; or

[[Page 437]]

    D. Retinitis proliferans; evaluate the visual impairment under the 
criteria in 2.02, 2.03, or 2.04.
    9.09  Obesity. Weight equal to or greater than the values specified 
in Table I for males, Table II for females (100 percent above desired 
level), and one of the following:
    A. History of pain and limitation of motion in any weight-bearing 
joint or the lumbosacral spine (on physical examination) associated with 
findings on medically acceptable imaging techniques of arthritis in the 
affected joint or lumbosacral spine; or
    B. Hypertension with diastolic blood pressure persistently in excess 
of 100 mm. Hg measured with appropriate size cuff; or
    C. History of congestive heart failure manifested by past evidence 
of vascular congestion such as hepatomegaly, peripheral or pulmonary 
edema; or
    D. Chronic venous insufficiency with superficial varicosities in a 
lower extremity with pain on weight bearing and persistent edema; or
    E. Respiratory disease with total forced vital capacity equal to or 
less than 2.0 L. or a level of hypoxemia at rest equal to or less than 
the values specified in Table III-A or III-B or III-C.

                              Table I.--Men                             
                                [Metric]                                
------------------------------------------------------------------------
                                                               Weight   
            Height without shoes (centimeters)               (kilograms)
------------------------------------------------------------------------
152.......................................................           112
155.......................................................           115
157.......................................................           117
160.......................................................           120
163.......................................................           123
165.......................................................           125
168.......................................................           129
170.......................................................           134
173.......................................................           137
175.......................................................           141
178.......................................................           145
180.......................................................           149
183.......................................................           153
185.......................................................           157
188.......................................................           162
190.......................................................           165
193.......................................................           170
------------------------------------------------------------------------


                              Table I.--Men                             
------------------------------------------------------------------------
                                                               Weight   
               Height without shoes (inches)                  (pounds)  
------------------------------------------------------------------------
60........................................................           246
61........................................................           252
62........................................................           258
63........................................................           264
64........................................................           270
65........................................................           276
66........................................................           284
67........................................................           294
68........................................................           302
69........................................................           310
70........................................................           318
71........................................................           328
72........................................................           336
73........................................................           346
74........................................................           356
75........................................................           364
76........................................................           374
------------------------------------------------------------------------


                            Table II.--Women                            
                                [Metric]                                
------------------------------------------------------------------------
                                                               Weight   
            Height without shoes (centimeters)               (kilograms)
------------------------------------------------------------------------
142.......................................................            95
145.......................................................            96
147.......................................................            99
150.......................................................           102
152.......................................................           105
155.......................................................           107
157.......................................................           110
160.......................................................           114
163.......................................................           117
165.......................................................           121
168.......................................................           125
170.......................................................           128
173.......................................................           132
175.......................................................           135
178.......................................................           139
180.......................................................           143
183.......................................................           146
------------------------------------------------------------------------


                            Table II.--Women                            
------------------------------------------------------------------------
                                                               Weight   
               Height without shoes (inches)                  (pounds)  
------------------------------------------------------------------------
56........................................................           208
57........................................................           212
58........................................................           218
59........................................................           224
60........................................................           230
61........................................................           236
62........................................................           242
63........................................................           250
64........................................................           258
65........................................................           266
66........................................................           274
67........................................................           282
68........................................................           290
69........................................................           298
70........................................................           306
71........................................................           314
72........................................................           322
------------------------------------------------------------------------


                              Table III--A                              
     [Applicable at test sites less than 3,000 feet above sea level]    
------------------------------------------------------------------------
                                                                Arterial
                                                               PO2 equal
                  Arterial PCO2 (mm. Hg) and                     to or  
                                                               less than
                                                                (mm. Hg)
------------------------------------------------------------------------
30 or below..................................................         65
31...........................................................         64
32...........................................................         63
33...........................................................         62
34...........................................................         61

[[Page 438]]

                                                                        
35...........................................................         60
36...........................................................         59
37...........................................................         58
38...........................................................         57
39...........................................................         56
40 or above..................................................         55
------------------------------------------------------------------------


                              Table III--B                              
   [Applicable at test sites 3,000 through 6,000 feet above sea level]  
------------------------------------------------------------------------
                                                                Arterial
                                                               PO2 equal
                  Arterial PCO2 (mm. Hg) and                     to or  
                                                               less than
                                                                (mm. Hg)
------------------------------------------------------------------------
30 or below..................................................         60
31...........................................................         59
32...........................................................         58
33...........................................................         57
34...........................................................         56
35...........................................................         55
36...........................................................         54
37...........................................................         53
38...........................................................         52
39...........................................................         51
40 or above..................................................         50
------------------------------------------------------------------------


                              Table III--C                              
       [Applicable at test sites over 6,000 feet above sea level]       
------------------------------------------------------------------------
                                                                Arterial
                                                               PO2 equal
                  Arterial PCO2 (mm. Hg) and                     to or  
                                                               less than
                                                                (mm. Hg)
------------------------------------------------------------------------
30 or below..................................................         55
31...........................................................         54
32...........................................................         53
33...........................................................         52
34...........................................................         51
35...........................................................         50
36...........................................................         49
37...........................................................         48
38...........................................................         47
39...........................................................         46
40 or above..................................................         45
------------------------------------------------------------------------

                            10.00  [Reserved]

                           11.00  Neurological

    A. Convulsive disorders. In convulsive disorders, regardless of 
etiology degree of impairment will be determined according to type, 
frequency, duration, and sequelae of seizures. At least one detailed 
description of a typical seizure is required. Such description includes 
the presence or absence of aura, tongue bites, sphincter control, 
injuries associated with the attack, and postictal phenomena. The 
reporting physician should indicate the extent to which description of 
seizures reflects his own observations and the source of ancillary 
information. Testimony of persons other than the claimant is essential 
for description of type and frequency of seizures if professional 
observation is not available.
    Documentation of epilepsy should include at least one 
electroencephalogram (EEG).
    Under 11.02 and 11.03, the criteria can be applied only if the 
impairment persists despite the fact that the individual is following 
prescribed anticonvulsive treatment. Adherence to prescribed 
anticonvulsive therapy can ordinarily be determined from objective 
clinical findings in the report of the physician currently providing 
treatment for epilepsy. Determination of blood levels of phenytoin 
sodium or other anticonvulsive drugs may serve to indicate whether the 
prescribed medication is being taken. When seizures are occurrring at 
the frequency stated in 11.02 or 11.03, evalution of the severity of the 
impairment must include consideration of the serum drug levels. Should 
serum drug levels appear therapeutically inadequate, consideration 
should be given as to whether this is caused by individual idiosyncrasy 
in absorption of metabolism of the drug. Blood drug levels should be 
evaluated in conjunction with all the other evidence to determine the 
extent of compliance. When the reported blood drug levels are low, 
therefore, the information obtained from the treating source should 
include the physician's statement as to why the levels are low and the 
results of any relevant diagnostic studies concerning the blood levels. 
Where adequate seizure control is obtained only with unusually large 
doses, the possibility of impairment resulting from the side effects of 
this medication must be also assessed. Where documentation shows that 
use of alcohol or drugs affects adherence to prescribed therapy or may 
play a part in the precipitation of seizures, this must also be 
considered in the overall assessment of impairment level.
    B. Brain tumors. The diagnosis of malignant brain tumors must be 
established, and the persistence of the tumor should be evaluated, under 
the criteria described in 13.00B and C for neoplastic disease.
    In histologically malignant tumors, the pathological diagnosis alone 
will be the decisive criterion for severity and expected duration (see 
11.05A). For other tumors of the brain, the severity and duration of the 
impairment will be determined on the basis of symptoms, signs, and 
pertinent laboratory findings (11.05B).
    C. Persistent disorganization of motor function in the form of 
paresis or paralysis, tremor or other involuntary movements, ataxia and 
sensory distrubances (any or all of which may be due to cerebral 
cerbellar, brain stem,

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spinal cord, or peripheral nerve dysfunction) which occur singly or in 
various combination, frequently provides the sole or partial basis for 
decision in cases of neurological impairment. The assessment of 
impairment depends on the degree of interference with locomotion and/or 
interference with the use of fingers, hands, and arms.
    D. In conditions which are episodic in character, such as multiple 
sclerosis or myasthenia gravis, consideration should be given to 
frequency and duration of exacerbations, length of remissions, and 
permanent residuals.
    E. Multiple sclerosis. The major criteria for evaluating impairment 
caused by multiple sclerosis are discussed in listing 11.09. Paragraph A 
provides criteria for evaluating disorganization of motor function and 
gives reference to 11.04B (11.04B then refers to 11.00C). Paragraph B 
provides references to other listings for evaluating visual or mental 
impairments caused by multiple sclerosis. Paragraph C provides criteria 
for evaluating the impairment of individuals who do not have muscle 
weakness or other significant disorganization of motor function at rest, 
but who do develop muscle weakness on activity as a result of fatigue.
    Use of the criteria in 11.09C is dependent upon (1) documenting a 
diagnosis of multiple sclerosis, (2) obtaining a description of fatigue 
considered to be characteristic of multiple sclerosis, and (3) obtaining 
evidence that the system has actually become fatigued. The evaluation of 
the magnitude of the impairment must consider the degree of exercise and 
the severity of the resulting muscle weakness.
    The criteria in 11.09C deals with motor abnormalities which occur on 
activity. If the disorganization of motor function is present at rest, 
paragraph A must be used, taking into account any further increase in 
muscle weakness resulting from activity.
    Sensory abnormalities may occur, particularly involving central 
visual acuity. The decrease in visual acuity may occur after brief 
attempts at activity involving near vision, such as reading. This 
decrease in visual acuity may not persist when the specific activity is 
terminated, as with rest, but is predictably reproduced with resumption 
of the activity. The impairment of central visual acuity in these cases 
should be evaluated under the criteria in listing 2.02, taking into 
account the fact that the decrease in visual acuity will wax and wane.
    Clarification of the evidence regarding central nervous system 
dysfunction responsible for the symptoms may require supporting 
technical evidence of functional impairment such as evoked response 
tests during exercise.
    11.01  Category of Impairments, Neurological
    11.02  Epilepsy--major motor seizures, (grand mal or psychomotor), 
documented by EEG and by detailed description of a typical seizure 
pattern, including all associated phenomena; occurring more frequently 
than once a month, in spite of at least 3 months of prescribed 
treatment. With:
    A. Daytime episodes (loss of consciousness and convulsive seizures) 
or
    B. Nocturnal episodes manifesting residuals which interfere 
significantly with activity during the day.
    11.03  Epilepsy--Minor motor seizures (petit mal, psychomotor, or 
focal), documented by EEG and by detailed description of a typical 
seizure pattern, including all associated phenomena; occurring more 
frequently than once weekly in spite of at least 3 months of prescribed 
treatment. With alteration of awareness or loss of consciousness and 
transient postictal manifestations of unconventional behavior or 
significant interference with activity during the day.
    11.04  Central nervous system vascular accident. With one of the 
following more than 3 months post-vascular accident:
    A. Sensory or motor aphasia resulting in ineffective speech or 
communication; or
    B. Significant and persistent disorganization of motor function in 
two extremities, resulting in sustained disturbance of gross and 
dexterous movements, or gait and station (see 11.00C).
    11.05  Brain tumors.
    A. Malignant gliomas (astrocytoma--grades III and IV, glioblastoma 
multiforme), medulloblastoma, ependymoblastoma, or primary sarcoma; or
    B. Astrocytoma (grades I and II), meningioma, pituitary tumors, 
oligodendroglioma, ependymoma, clivus chordoma, and benign tumors. 
Evaluate under 11.02, 11.03, 11.04 A, or B, or 12.02.
    11.06  Parkinsonian syndrome with the following signs: Significant 
rigidity, brady kinesia, or tremor in two extremities, which, singly or 
in combination, result in sustained disturbance of gross and dexterous 
movements, or gait and station.
    11.07  Cerebral palsy. With:
    A. IQ of 70 or less; or
    B. Abnormal behavior patterns, such as destructiveness or emotional 
instability: or
    C. Significant interference in communication due to speech, hearing, 
or visual defect; or
    D. Disorganization of motor function as described in 11.04B.
    11.08  Spinal cord or nerve root lesions, due to any cause with 
disorganization of motor function as described in 11.04B.
    11.09  Multiple sclerosis. With:
    A. Disorganization of motor function as described in 11.04B; or
    B. Visual or mental impairment as described under the criteria in 
2.02, 2.03, 2.04, or 12.02; or

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    C. Significant, reproducible fatigue of motor function with 
substantial muscle weakness on repetitive activity, demonstrated on 
physical examination, resulting from neurological dysfunction in areas 
of the central nervous system known to be pathologically involved by the 
multiple sclerosis process.
    11.10  Amyotrophic lateral sclerosis. With:
    A. Significant bulbar signs; or
    B. Disorganization of motor function as described in 11.04B.
    11.11  Anterior poliomyelitis. With:
    A. Persistent difficulty with swallowing or breathing; or
    B. Unintelligible speech; or
    C. Disorganization of motor function as described in 11.04B.
    11.12  Myasthenia gravis. With:
    A. Significant difficulty with speaking, swallowing, or breathing 
while on prescribed therapy; or
    B. Significant motor weakness of muscles of extremities on 
repetitive activity against resistance while on prescribed therapy.
    11.13  Muscular dystrophy with disorganization of motor function as 
described in 11.04B.
    11.14  Peripheral neuropathies.
    With disorganization of motor function as described in 11.04B, in 
spite of prescribed treatment.
    11.15  Tabes dorsalis.
    With:
    A. Tabetic crises occurring more frequently than once monthly; or
    B. Unsteady, broad-based or ataxic gait causing significant 
restriction of mobility substantiated by appropriate posterior column 
signs.
    11.16  Subacute combined cord degeneration (pernicious anemia) with 
disorganization of motor function as decribed in 11.04B or 11.15B, not 
significantly improved by prescribed treatment.
    11.17  Degenerative disease not elsewhere such as Huntington's 
chorea, Friedreich's ataxia, and spino-cerebellar degeneration. With:
    A. Disorganization of motor function as described in 11.04B or 
11.15B; or
    B. Chronic brain syndrome. Evaluate under 12.02.
    11.18  Cerebral trauma:
    Evaluate under the provisions of 11.02, 11.03, 11.04 and 12.02, as 
applicable.
    11.19  Syringomyelia.
    With:
    A. Significant bulbar signs; or
    B. Disorganization of motor function as described in 11.04B.

                         12.00  Mental Disorders

    The mental disorders listings in 12.00 of the Listing of Impairments 
will no longer be effective on August 28, 1997, unless extended by the 
Commissioner or revised and promulgated again.
    A. Introduction: The evaluation of disability on the basis of mental 
disorders requires the documentation of a medically determinable 
impairment(s) as well as consideration of the degree of limitation such 
impairment(s) may impose on the individual's ability to work and whether 
these limitations have lasted or are expected to last for a continuous 
period of at least 12 months. The listings for mental disorders are 
arranged in eight diagnostic categories: organic mental disorders 
(12.02); schizophrenic, paranoid and other psychotic disorders (12.03); 
affective disorders (12.04); mental retardation and autism (12.05); 
anxiety related disorders (12.06); somatoform disorders (12.07); 
personality disorders (12.08); and substance addiction disorders 
(12.09). Each diagnostic group, except listings 12.05 and 12.09, 
consists of a set of clinical findings (paragraph A criteria), one or 
more of which must be met, and which, if met, lead to a test of 
functional restrictions (paragraph B criteria), two or three of which 
must also be met. There are additional considerations (paragraph C 
criteria) in listings 12.03 and 12.06, discussed therein.
    The purpose of including the criteria in paragraph A of the listings 
for mental disorders is to medically substantiate the presence of a 
mental disorder. Specific signs and symptoms under any of the listings 
12.02 through 12.09 cannot be considered in isolation from the 
description of the mental disorder contained at the beginning of each 
listing category. Impairments should be analyzed or reviewed under the 
mental category(ies) which is supported by the individual's clinical 
findings.
    The purpose of including the criteria in paragraphs B and C of the 
listings for mental disorders is to describe those functional 
limitations associated with mental disorders which are incompatible with 
the ability to work. The restrictions listed in paragraphs B and C must 
be the result of the mental disorder which is manifested by the clinical 
findings outlined in paragraph A. The criteria included in paragraphs B 
and C of the listings for mental disorders have been chosen because they 
represent functional areas deemed essential to work. An individual who 
is severely limited in these areas as the result of an impairment 
identified in paragraph A is presumed to be unable to work.
    The structure of the listing for substance addiction disorders, 
listing 12.09, is different from that for the other mental disorder 
listings. Listing 12.09 is structured as a reference listing; that is, 
it will only serve to indicate which of the other listed mental or 
physical impairments must be used to evaluate the behavioral or physical 
changes resulting from regular use of addictive substances.
    The listings for mental disorders are so constructed that an 
individual meeting or

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equaling the criteria could not reasonably be expected to engage in 
gainful work activity.
    Individuals who have an impairment with a level of severity which 
does not meet the criteria of the listings for mental disorders may or 
may not have the residual functional capacity (RFC) which would enable 
them to engage in substantial gainful work activity. The determination 
of mental RFC is crucial to the evaluation of an individual's capacity 
to engage in substantial gainful work activity when the criteria of the 
listings for mental disorders are not met or equaled but the impairment 
is nevertheless severe.
    RFC may be defined as a multidimensional description of the work-
related abilities which an individual retains in spite of medical 
impairments. RFC complements the criteria in paragraphs B and C of the 
listings for mental disorders by requiring consideration of an expanded 
list of work-related capacities which may be impaired by mental disorder 
when the impairment is severe but does not meet or equal a listed mental 
disorder.
    B. Need for Medical Evidence: The existence of a medically 
determinable impairment of the required duration must be established by 
medical evidence consisting of clinical signs, symptoms and/or 
laboratory or psychological test findings. These findings may be 
intermittent or persistent depending on the nature of the disorder. 
Clinical signs are medically demonstrable phenomena which reflect 
specific abnormalities of behavior, affect, thought, memory, 
orientation, or contact with reality. These signs are typically assessed 
by a psychiatrist or psychologist and/or documented by psychological 
tests. Symptoms are complaints presented by the individual. Signs and 
symptoms generally cluster together to constitute recognizable clinical 
syndromes (mental disorders). Both symptoms and signs which are part of 
any diagnosed mental disorder must be considered in evaluating severity.
    C. Assessment of Severity: For mental disorders, severity is 
assessed in terms of the functional limitations imposed by the 
impairment. Functional limitations are assessed using the criteria in 
paragraph B of the listings for mental disorders (descriptions of 
restrictions of activities of daily living; social functioning; 
concentration, persistence, or pace; and ability to tolerate increased 
mental demands associated with competitive work). Where ``marked'' is 
used as a standard for measuring the degree of limitation, it means more 
than moderate, but less than extreme. A marked limitation may arise when 
several activities or functions are impaired or even when only one is 
impaired, so long as the degree of limitation is such as to seriously 
interfere with the ability to function independently, appropriately and 
effectively. Four areas are considered.
    1. Activities of daily living include adaptive activities such as 
cleaning, shopping, cooking, taking public transportation, paying bills, 
maintaining a residence, caring appropriately for one's grooming and 
hygiene, using telephones and directories, using a post office, etc. In 
the context of the individual's overall situation, the quality of these 
activities is judged by their independence, appropriateness and 
effectiveness. It is necessary to define the extent to which the 
individual is capable of initiating and participating in activities 
independent of supervision or direction.
    ``Marked'' is not the number of activities which are restricted but 
the overall degree of restriction or combination of restrictions which 
must be judged. For example, a person who is able to cook and clean 
might still have marked restrictions of daily activities if the person 
were too fearful to leave the immediate environment of home and 
neighborhood, hampering the person's ability to obtain treatment or to 
travel away from the immediate living environment.
    2. Social functioning refers to an individual's capacity to interact 
appropriately and communicate effectively with other individuals. Social 
functioning includes the ability to get along with others, e.g., family 
members, friends, neighbors, grocery clerks, landlords, bus drivers, 
etc. Impaired social functioning may be demonstrated by a history of 
altercations, evictions, firings, fear of strangers, avoidance of 
interpersonal relationships, social isolation, etc. Strength in social 
functioning may be documented by an individual's ability to initiate 
social contacts with others, communicate clearly with others, interact 
and actively participate in group activities, etc. Cooperative 
behaviors, consideration for others, awareness of others' feelings, and 
social maturity also need to be considered. Social functioning in work 
situations may involve interactions with the public, responding 
appropriately to persons in authority, e.g., supervisors, or cooperative 
behaviors involving coworkers.
    ``Marked'' is not the number of areas in which social functioning is 
impaired, but the overall degree of interference in a particular area or 
combination of areas of functioning. For example, a person who is highly 
antagonistic, uncooperative or hostile but is tolerated by local 
storekeepers may nevertheless have marked restrictions in social 
functioning because that behavior is not acceptable in other social 
contexts.
    3. Concentration, persistence and pace refer to the ability to 
sustain focused attention sufficiently long to permit the timely 
completion of tasks commonly found in work settings. In activities of 
daily living, concentration may be reflected in terms of ability to 
complete tasks in everyday household routines. Deficiencies in 
concentration, persistence and pace are best observed in work

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and work-like settings. Major impairment in this area can often be 
assessed through direct psychiatric examination and/or psychological 
testing, although mental status examination or psychological test data 
alone should not be used to accurately describe concentration and 
sustained ability to adequately perform work-like tasks. On mental 
status examinations, concentration is assessed by tasks such as having 
the individual subtract serial sevens from 100. In psychological tests 
of intelligence or memory, concentration is assessed through tasks 
requiring short-term memory or through tasks that must be completed 
within established time limits. In work evaluations, concentration, 
persistence, and pace are assessed through such tasks as filing index 
cards, locating telephone numbers, or disassembling and reassembling 
objects. Strengths and weaknesses in areas of concentration can be 
discussed in terms of frequency of errors, time it takes to complete the 
task, and extent to which assistance is required to complete the task.
    4. Deterioration or decompensation in work or work-like settings 
refers to repeated failure to adapt to stressful circumstances which 
cause the individual either to withdraw from that situation or to 
experience exacerbation of signs and symptoms (i.e., decompensation) 
with an accompanying difficulty in maintaining activities of daily 
living, social relationships, and/or maintaining concentration, 
persistence, or pace (i.e., deterioration which may include 
deterioration of adaptive behaviors). Stresses common to the work 
environment include decisions, attendance, schedules, completing tasks, 
interactions with supervisors, interactions with peers, etc.
    D. Documentation: The presence of a mental disorder should be 
documented primarily on the basis of reports from individual providers, 
such as psychiatrists and psychologists, and facilities such as 
hospitals and clinics. Adequate descriptions of functional limitations 
must be obtained from these or other sources which may include programs 
and facilities where the individual has been observed over a 
considerable period of time.
    Information from both medical and nonmedical sources may be used to 
obtain detailed descriptions of the individual's activities of daily 
living; social functioning; concentration, persistance and pace; or 
ability to tolerate increased mental demands (stress). This information 
can be provided by programs such as community mental health centers, day 
care centers, sheltered workshops, etc. It can also be provided by 
others, including family members, who have knowledge of the individual's 
functioning. In some cases descriptions of activities of daily living or 
social functioning given by individuals or treating sources may be 
insufficiently detailed and/or may be in conflict with the clinical 
picture otherwise observed or described in the examinations or reports. 
It is necessary to resolve any inconsistencies or gaps that may exist in 
order to obtain a proper understanding of the individual's functional 
restrictions.
    An individual's level of functioning may vary considerably over 
time. The level of functioning at a specific time may seem relatively 
adequate or, conversely, rather poor. Proper evaluation of the 
impairment must take any variations in level of functioning into account 
in arriving at a determination of impairment severity over time. Thus, 
it is vital to obtain evidence from relevant sources over a sufficiently 
long period prior to the date of adjudication in order to establish the 
individual's impairment severity. This evidence should include treatment 
notes, hospital discharge summaries, and work evaluation or 
rehabilitation progress notes if these are available.
    Some individuals may have attempted to work or may actually have 
worked during the period of time pertinent to the determination of 
disability. This may have been an independent attempt at work, or it may 
have been in conjunction with a community mental health or other 
sheltered program which may have been of either short or long duration. 
Information concerning the individual's behavior during any attempt to 
work and the circumstances surrounding termination of the work effort 
are particularly useful in determining the individual's ability or 
inability to function in a work setting.
    The results of well-standardized psychological tests such as the 
Wechsler Adult Intelligence Scale (WAIS), the Minnesota Multiphasic 
Personality Inventory (MMPI), the Rorschach, and the Thematic 
Apperception Test (TAT), may be useful in establishing the existence of 
a mental disorder. For example, the WAIS is useful in establishing 
mental retardation, and the MMPI, Rorschach, and TAT may provide data 
supporting several other diagnoses. Broad-based neuropsychological 
assessments using, for example, the Halstead-Reitan or the Luria-
Nebraska batteries may be useful in determining brain function 
deficiencies, particularly in cases involving subtle findings such as 
may be seen in traumatic brain injury. In addition, the process of 
taking a standardized test requires concentration, persistence and pace; 
performance on such tests may provide useful data. Test results should, 
therefore, include both the objective data and a narrative description 
of clinical findings. Narrative reports of intellectual assessment 
should include a discussion of whether or not obtained IQ scores are 
considered valid and consistent with the individual's developmental 
history and degree of functional restriction.
    In cases involving impaired intellectual functioning, a standardized 
intelligence test, e.g., the WAIS, should be administered and

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interpreted by a psychologist or psychiatrist qualified by training and 
experience to perform such an evaluation. In special circumstances, 
nonverbal measures, such as the Raven Progressive Matrices, the Leiter 
international scale, or the Arthur adaptation of the Leiter may be 
substituted.
    Identical IQ scores obtained from different tests do not always 
reflect a similar degree of intellectual functioning. In this 
connection, it must be noted that on the WAIS, for example, IQs of 70 
and below are characteristic of approximately the lowest 2 percent of 
the general population. In instances where other tests are administered, 
it would be necessary to convert the IQ to the corresponding percentile 
rank in the general population in order to determine the actual degree 
of impairment reflected by those IQ scores.
    In cases where more than one IQ is customarily derived from the test 
administered, i.e., where verbal, performance, and full-scale IQs are 
provided as on the WAIS, the lowest of these is used in conjunction with 
listing 12.05.
    In cases where the nature of the individual's intellectual 
impairment is such that standard intelligence tests, as described above, 
are precluded, medical reports specifically describing the level of 
intellectual, social, and physical function should be obtained. Actual 
observations by Social Security Administration or State agency 
personnel, reports from educational institutions and information 
furnished by public welfare agencies or other reliable objective sources 
should be considered as additional evidence.
    E. Chronic Mental Impairments: Particular problems are often 
involved in evaluating mental impairments in individuals who have long 
histories of repeated hospitalizations or prolonged outpatient care with 
supportive therapy and medication. Individuals with chronic psychotic 
disorders commonly have their lives structured in such a way as to 
minimize stress and reduce their signs and symptoms. Such individuals 
may be much more impaired for work than their signs and symptoms would 
indicate. The results of a single examination may not adequately 
describe these individuals' sustained ability to function. It is, 
therefore, vital to review all pertinent information relative to the 
individual's condition, especially at times of increased stress. It is 
mandatory to attempt to obtain adequate descriptive information from all 
sources which have treated the individual either currently or in the 
time period relevant to the decision.
    F. Effects of Structured Settings: Particularly in cases involving 
chronic mental disorders, overt symptomatology may be controlled or 
attenuated by psychosocial factors such as placement in a hospital, 
board and care facility, or other environment that provides similar 
structure. Highly structured and supportive settings may greatly reduce 
the mental demands placed on an individual. With lowered mental demands, 
overt signs and symptoms of the underlying mental disorder may be 
minimized. At the same time, however, the individual's ability to 
function outside of such a structured and/or supportive setting may not 
have changed. An evaluation of individuals whose symptomatology is 
controlled or attenuated by psychosocial factors must consider the 
ability of the individual to function outside of such highly structured 
settings. (For these reasons the paragraph C criteria were added to 
Listings 12.03 and 12.06.)
    G. Effects of Medication: Attention must be given to the effect of 
medication on the individual's signs, symptoms and ability to function. 
While psychotropic medications may control certain primary 
manifestations of a mental disorder, e.g., hallucinations, such 
treatment may or may not affect the functional limitations imposed by 
the mental disorder. In cases where overt symptomatology is attenuated 
by the psychotropic medications, particular attention must be focused on 
the functional restrictions which may persist. These functional 
restrictions are also to be used as the measure of impairment severity. 
(See the paragraph C criteria in Listings 12.03 and 12.06.)
    Neuroleptics, the medicines used in the treatment of some mental 
illnesses, may cause drowsiness, blunted affect, or other side effects 
involving other body systems. Such side effects must be considered in 
evaluating overall impairment severity. Where adverse effects of 
medications contribute to the impairment severity and the impairment 
does not meet or equal the listings but is nonetheless severe, such 
adverse effects must be considered in the assessment of the mental 
residual functional capacity.
    H. Effect of Treatment: It must be remembered that with adequate 
treatment some individuals suffering with chronic mental disorders not 
only have their symptoms and signs ameliorated but also return to a 
level of function close to that of their premorbid status. Our 
discussion here in 12.00H has been designed to reflect the fact that 
present day treatment of a mentally impaired individual may or may not 
assist in the achievement of an adequate level of adaptation required in 
the work place. (See the paragraph C criteria in Listings 12.03 and 
12.06.)
    I. Technique for Reviewing the Evidence in Mental Disorders Claims 
to Determine Level of Impairment Severity: A special technique has been 
developed to ensure that all evidence needed for the evaluation of 
impairment severity in claims involving mental impairment is obtained, 
considered and properly evaluated. This technique, which is used in 
connection with the sequential evaluation process, is explained in 
Sec. 404.1520a and Sec. 416.920a.

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    12.01  Category of Impairments-Mental
    12.02  Organic Mental Disorders: Psychological or behaviorial 
abnormalities associated with a dysfunction of the brain. History and 
physical examination or laboratory tests demonstrate the presence of a 
specific organic factor judged to be etiologically related to the 
abnormal mental state and loss of previously acquired functional 
abilities.
    The required level of severity for these disorders is met when the 
requirements in both A and B are satisfied.
    A. Demonstration of a loss of specific cognitive abilities or 
affective changes and the medically documented persistence of at least 
one of the following:
    1. Disorientation to time and place; or
    2. Memory impairment, either short-term (inability to learn new 
information), intermediate, or long-term (inability to remember 
information that was known sometime in the past); or
    3. Perceptual or thinking disturbances (e.g., hallucinations, 
delusions); or
    4. Change in personality; or
    5. Disturbance in mood; or
    6. Emotional lability (e.g., explosive temper outbursts, sudden 
crying, etc.) and impairment in impulse control; or
    7. Loss of measured intellectual ability of at least 15 I.Q. points 
from premorbid levels or overall impairment index clearly within the 
severely impaired range on neuropsychological testing, e.g., the Luria-
Nebraska, Halstead-Reitan, etc.;

AND

    B. Resulting in at least two of the following:
    1. Marked restriction of activities of daily living; or
    2. Marked difficulties in maintaining social functioning; or
    3. Deficiencies of concentration, persistence or pace resulting in 
frequent failure to complete tasks in a timely manner (in work settings 
or elsewhere); or
    4. Repeated episodes of deterioration or decompensation in work or 
work-like settings which cause the individual to withdraw from that 
situation or to experience exacerbation of signs and symptoms (which may 
include deterioration of adaptive behaviors).
    12.03  Schizophrenic, Paranoid and Other Psychotic Disorders: 
Characterized by the onset of psychotic features with deterioration from 
a previous level of functioning.
    The required level of severity for these disorders is met when the 
requirements in both A and B are satisfied, or when the requirements in 
C are satisfied.
    A. Medically documented persistence, either continuous or 
intermittent, of one or more of the following:
    1. Delusions or hallucinations; or
    2. Catatonic or other grossly disorganized behavior; or
    3. Incoherence, loosening of associations, illogical thinking, or 
poverty of content of speech if associated with one of the following:
    a. Blunt affect; or
    b. Flat affect; or
    c. Inappropriate affect;

or

    4. Emotional withdrawal and/or isolation;

AND

    B. Resulting in at least two of the following:
    1. Marked restriction of activities of daily living; or
    2. Marked difficulties in maintaining social functioning; or
    3. Deficiencies of concentration, persistence or pace resulting in 
frequent failure to complete tasks in a timely manner (in work settings 
or elsewhere); or
    4. Repeated episodes of deterioration or decompensation in work or 
work-like settings which cause the individual to withdraw from that 
situation or to experience exacerbation of signs and symptoms (which may 
include deterioration of adaptive behaviors);

OR

    C. Medically documented history of one or more episodes of acute 
symptoms, signs and functional limitations which at the time met the 
requirements in A and B of this listing, although these symptoms or 
signs are currently attenuated by medication or psychosocial support, 
and one of the following:
    1. Repeated episodes of deterioration or decompensation in 
situations which cause the individual to withdraw from that situation or 
to experience exacerbation of signs or symptoms (which may include 
deterioration of adaptive behaviors); or
    2. Documented current history of two or more years of inability to 
function outside of a highly supportive living situation.
    12.04 Affective Disorders: Characterized by a disturbance of mood, 
accompanied by a full or partial manic or depressive syndrome. Mood 
refers to a prolonged emotion that colors the whole psychic life; it 
generally involves either depression or elation.
    The required level of severity for these disorders is met when the 
requirements in both A and B are satisfied.
    A. Medically documented persistence, either continuous or 
intermittent, of one of the following:
    1. Depressive syndrome characterized by at least four of the 
following:
    a. Anhedonia or pervasive loss of interest in almost all activites; 
or
    b. Appetite disturbance with change in weight; or
    c. Sleep disturbance; or
    d. Psychomotor agitation or retardation; or

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    e. Decreased energy; or
    f. Feelings of guilt or worthlessness; or
    g. Difficulty concentrating or thinking; or
    h. Thoughts of suicide; or
    i. Hallucinations, delusions, or paranoid thinking; or
    2. Manic syndrome characterized by at least three of the following:
    a. Hyperactivity; or
    b. Pressure of speech; or
    c. Flight of ideas; or
    d. Inflated self-esteem; or
    e. Decreased need for sleep; or
    f. Easy distractability; or
    g. Involvement in activities that have a high probability of painful 
consequences which are not recognized; or
    h. Hallucinations, delusions or paranoid thinking;

or

    3. Bipolar syndrome with a history of episodic periods manifested by 
the full symptomatic picture of both manic and depressive syndromes (and 
currently characterized by either or both syndromes);

AND

    B. Resulting in at least two of the following:
    1. Marked restriction of activities of daily living; or
    2. Marked difficulties in maintaining social functioning; or
    3. Deficiencies of concentration, persistence or pace resulting in 
frequent failure to complete tasks in a timely manner (in work settings 
or elsewhere); or
    4. Repeated episodes of deterioration or decompensation in work or 
work-like settings which cause the individual to withdraw from that 
situation or to experience exacerbation of signs and symptoms (which may 
include deterioration of adaptive behaviors).
    12.05  Mental Retardation and Autism: Mental retardation refers to a 
significantly subaverage general intellectual functioning with deficits 
in adaptive behavior initially manifested during the developmental 
period (before age 22). (Note: The scores specified below refer to those 
obtained on the WAIS, and are used only for reference purposes. Scores 
obtained on other standardized and individually administered tests are 
acceptable, but the numerical values obtained must indicate a similar 
level of intellectual functioning.) Autism is a pervasive developmental 
disorder characterized by social and significant communication deficits 
originating in the developmental period.
    The required level of severity for this disorder is met when the 
requirements in A, B, C, or D are satisfied.
    A. Mental incapacity evidenced by dependence upon others for 
personal needs (e.g., toileting, eating, dressing, or bathing) and 
inability to follow directions, such that the use of standardized 
measures of intellectual functioning is precluded;

OR

    B. A valid verbal, performance, or full scale IQ of 59 or less;

OR

    C. A valid verbal, performance, or full scale IQ of 60 through 70 
and a physical or other mental impairment imposing additional and 
significant work-related limitation of function;

OR

    D. A valid verbal, performance, or full scale IQ of 60 through 70, 
or in the case of autism, gross deficits of social and communicative 
skills, with either condition resulting in two of the following:
    1. Marked restriction of activities of daily living; or
    2. Marked difficulties in maintaining social functioning; or
    3. Deficiencies of concentration, persistence or pace resulting in 
frequent failure to complete tasks in a timely manner (in work settings 
or eleswhere); or
    4. Repeated episodes of deterioration or decompensation in work or 
work-like settings which cause the individual to withdraw from that 
situation or to experience exacerbation of signs and symptoms (which may 
include deterioration of adaptive behaviors).
    12.06  Anxiety Related Disorders: In these disorders anxiety is 
either the predominant disturbance or it is experienced if the 
individual attempts to master symptoms; for example, confronting the 
dreaded object or situation in a phobic disorder or resisting the 
obsessions or compulsions in obsessive compulsive disorders.
    The required level of severity for these disorders is met when the 
requirements in both A and B are satisfied, or when the requirements in 
both A and C are satisfied.
    A. Medically documented findings of at least one of the following:
    1. Generalized persistent anxiety accompanied by three out of four 
of the following signs or symptoms:
    a. Motor tension; or
    b. Autonomic hyperactivity; or
    c. Apprehensive expectation; or
    d. Vigilance and scanning;

or

    2. A persistent irrational fear of a specific object, activity, or 
situation which results in a compelling desire to avoid the dreaded 
object, activity, or situation; or
    3. Recurrent severe panic attacks manifested by a sudden 
unpredictable onset of intense apprehension, fear, terror and sense of 
impending doom occurring on the average of at least once a week; or
    4. Recurrent obsessions or compulsions which are a source of marked 
distress; or

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    5. Recurrent and intrusive recollections of a traumatic experience, 
which are a source of marked distress;

AND

    B. Resulting in at least two of the following:
    1. Marked restriction of activities of daily living; or
    2. Marked difficulties in maintaining social functioning; or
    3. Deficiencies of concentration, persistence or pace resulting in 
frequent failure to complete tasks in a timely manner (in work settings 
or eleswhere); or
    4. Repeated episodes of deterioration or decompensation in work or 
work-like settings which cause the individual to withdraw from that 
situation or to experience exacerbation of signs and symptoms (which may 
include deterioration of adaptive behaviors);

OR

    C. Resulting in complete inability to function independently outside 
the area of one's home.
    12.07  Somatoform Disorders: Physical symptoms for which there are 
no demonstrable organic findings or known physiological mechanisms.
    The required level of severity for these disorders is met when the 
requirements in both A and B are satisfied.
    A. Medically documented by evidence of one of the following:
    1. A history of multiple physical symptoms of several years 
duration, beginning before age 30, that have caused the individual to 
take medicine frequently, see a physician often and alter life patterns 
significantly; or
    2. Persistent nonorganic disturbance of one of the following:
    a. Vision; or
    b. Speech; or
    c. Hearing; or
    d. Use of a limb; or
    e. Movement and its control (e.g., coordination disturbance, 
psychogenic seizures, akinesia, dyskinesia; or
    f. Sensation (e.g., diminished or heightened).
    3. Unrealistic interpretation of physical signs or sensations 
associated with the preoccupation or belief that one has a serious 
disease or injury;

AND

    B. Resulting in three of the following:
    1. Marked restriction of activities of daily living; or
    2. Marked difficulties in maintaining social functioning; or
    3. Deficiencies of concentration, persistence or pace resulting in 
frequent failure to complete tasks in a timely manner (in work settings 
or elsewhere); or
    4. Repeated episodes of deterioration or decompensation in work or 
work-like settings which cause the individual to withdraw from that 
situation or to experience exacerbation of signs and symptoms (which may 
include deterioration of adaptive behavior).
    12.08  Personality Disorders: A personality disorder exists when 
personality traits are inflexible and maladaptive and cause either 
significant impairment in social or occupational functioning or 
subjective distress. Characteristic features are typical of the 
individual's long-term functioning and are not limited to discrete 
episodes of illness.
    The required level of severity for these disorders is met when the 
requirements in both A and B are satisfied.
    A. Deeply ingrained, maladaptive patterns of behavior associated 
with one of the following:
    1. Seclusiveness or autistic thinking; or
    2. Pathologically inappropriate suspiciousness or hostility; or
    3. Oddities of thought, perception, speech and behavior; or
    4. Persistent disturbances of mood or affect; or
    5. Pathological dependence, passivity, or aggressivity; or
    6. Intense and unstable interpersonal relationships and impulsive 
and damaging behavior;

AND

    B. Resulting in three of the following:
    1. Marked restriction of activities of daily living; or
    2. Marked difficulties in maintaining social functioning; or
    3. Deficiencies of concentration, persistence or pace resulting in 
frequent failure to complete tasks in a timely manner (in work settings 
or elsewhere); or
    4. Repeated episodes of deterioration or decompensation in work or 
work-like settings which cause the individual to withdraw from that 
situation or to experience exacerbation of signs and symptoms (which may 
include deterioration of adaptive behaviors).
    12.09  Substance Addiction Disorders: Behavioral changes or physical 
changes associated with the regular use of substances that affect the 
central nervous system.
    The required level of severity for these disorders is met when the 
requirements in any of the following (A through I) are satisfied.
    A. Organic mental disorders. Evaluate under 12.02.
    B. Depressive syndrome. Evaluate under 12.04.
    C. Anxiety disorders. Evaluate under 12.06.
    D. Personality disorders. Evaluate under 12.08.
    E. Peripheral neuropathies. Evaluate under 11.14.
    F. Liver damage. Evaluate under 5.05.
    G. Gastritis. Evaluate under 5.04.
    H. Pancreatitis. Evaluate under 5.08.
    I. Seizures. Evaluate under 11.02 or 11.03.

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                  13.00  Neoplastic Diseases, Malignant

    A. Introduction: The determination of the level of impairment 
resulting from malignant tumors is made from a consideration of the site 
of the lesion, the histogenesis of the tumor, the extent of involvement, 
the apparent adequacy and response to therapy (surgery, irradiation, 
hormones, chemotherapy, etc.), and the magnitude of the post therapeutic 
residuals.
    B. Documentation: The diagnosis of malignant tumors should be 
established on the basis of symptoms, signs, and laboratory findings. 
The site of the primary, recurrent, and metastatic lesion must be 
specified in all cases of malignant neoplastic diseases. If an operative 
procedure has been performed, the evidence should include a copy of the 
operative note and the report of the gross and microscopic examination 
of the surgical specimen. If these documents are not obtainable, then 
the summary of hospitalization or a report from the treating physician 
must include details of the findings at surgery and the results of the 
pathologist's gross and microscopic examination of the tissues.
    For those cases in which a disabling impairment was not established 
when therapy was begun but progression of the disease is likely, current 
medical evidence should include a report of a recent examination 
directed especially at local or regional recurrence, soft part or 
skeletal metastases, and significant posttherapeutic residuals.
    C. Evaluation. Usually, when the malignant tumor consists of a local 
lesion with metastases to the regional lymph nodes which apparently has 
been completely excised, imminent recurrence or metastases is not 
anticipated. A number of exceptions are noted in the specific Listings. 
For adjudicative purposes, ``distant metastases'' or ``metastases beyond 
the regional lymph nodes'' refers to metastasis beyond the lines of the 
usual radical en bloc resection.
    Local or regional recurrence after radical surgery or pathological 
evidence of incomplete excision by radical surgery is to be equated with 
unresectable lesions (except for carcinoma of the breast, 13.09C) and, 
for the purposes of our program, may be evaluated as ``inoperable.''
    Local or regional recurrence after incomplete excision of a 
localized and still completely resectable tumor is not to be equated 
with recurrence after radical surgery. In the evaluation of lymphomas, 
the tissue type and site of involvement are not necessarily indicators 
of the degree of impairment.
    When a malignant tumor has metastasized beyond the regional lymph 
nodes, the impairment will usually be found to meet the requirements of 
a specific listing. Exceptions are hormone-dependent tumors, isotope-
sensitive metastases, and metastases from seminoma of the testicles 
which are controlled by definitive therapy.
    When the original tumor and any metastases have apparently 
disappeared and have not been evident for 3 or more years, the 
impairment does not meet the criteria under this body system.
    D. Effects of therapy. Significant posttherapeutic residuals, not 
specifically included in the category of impairments for malignant 
neoplasms, should be evaluated according to the affected body system.
    Where the impairment is not listed in the Listing of Impairments and 
is not medically equivalent to a listed impairment, the impact of any 
residual impairment including that caused by therapy must be considered. 
The therapeutic regimen and consequent adverse response to therapy may 
vary widely; therefore, each case must be considered on an individual 
basis. It is essential to obtain a specific description of the 
therapeutic regimen, including the drugs given, dosage, frequency of 
drug administration, and plans for continued drug administration. It is 
necessary to obtain a description of the complications or any other 
adverse response to therapy such as nausea, vomiting, diarrhea, 
weakness, dermatologic disorders, or reactive mental disorders. Since 
the severity of the adverse effects of anticancer chemotherapy may 
change during the period of drug administration, the decision regarding 
the impact of drug therapy should be based on a sufficient period of 
therapy to permit proper consideration.
    E. Onset. To establish onset of disability prior to the time a 
malignancy is first demonstrated to be inoperable or beyond control by 
other modes of therapy (and prior evidence is nonexistent) requires 
medical judgment based on medically reported symptoms, the type of the 
specific malignancy, its location, and extent of involvement when first 
demonstrated.
    13.01  Category of Impairments, Neoplastic Diseases--Malignant
    13.02   Head and neck (except salivary glands--13.07, thyroid 
gland--13.08, and mandible, maxilla, orbit, or temporal fossa-- 13.11):
    A. Inoperable; or
    B. Not controlled by prescribed therapy; or
    C. Recurrent after radical surgery or irradiation; or
    D. With distant metastases; or
    E. Epidermoid carcinoma occurring in the pyriform sinus or posterior 
third of the tongue.
    13.03  Sarcoma of skin:
    A. Angiosarcoma with metastases to regional lymph nodes or beyond; 
or
    B. Mycosis fungoides with metastases to regional lymph nodes, or 
with visceral involvement.
    13.04  Sarcoma of soft parts: Not controlled by prescribed therapy.

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    13.05  Malignant melanoma:
    A. Recurrent after wide excision; or
    B. With metastases to adjacent skin (satellite lesions) or 
elsewhere.
    13.06  Lymph nodes:
    A. Hodgkin's disease or non-Hodgkin's lymphoma with progressive 
disease not controlled by prescribed therapy; or
    B. Metastatic carcinoma in a lymph node (except for epidermoid 
carcinoma in a lymph node in the neck) where the primary site is not 
determined after adequate search; or
    C. Epidermoid carcinoma in a lymph node in the neck not responding 
to prescribed therapy.
    13.07  Salivary glands-- carcinoma or sarcoma with metastases beyond 
the regional lymph nodes.
    13.08  Thyroid gland--carcinoma with metastases beyond the regional 
lymph nodes, not controlled by prescribed therapy.
    13.09  Breast:
    A. Inoperable carcinoma; or
    B. Inflammatory carcinoma; or
    C. Recurrent carcinoma, except local recurrence controlled by 
prescribed therapy; or
    D. Distant metastases from breast carcinoma (bilateral breast 
carcinoma, synchronous or metachronous is usually primary in each 
breast); or
    E. Sarcoma with metastases anywhere.
    13.10  Skeletal system (exclusive of the jaw):
    A. Malignant primary tumors with evidence of metastases and not 
controlled by prescribed therapy; or
    B. Metastatic carcinoma to bone where the primary site is not 
determined after adequate search.
    13.11  Mandible, maxilla, orbit, or temporal fossa:
    A. Sarcoma of any type with metastases; or
    B. Carcinoma of the antrum with extension into the orbit or ethmoid 
or sphenoid sinus, or with regional or distant metastases; or
    C. Orbital tumors with intracranial extension; or
    D. Tumors of the temporal fossa with perforation of skull and 
meningeal involvement; or
    E. Adamantinoma with orbital or intracranial infiltration; or
    F. Tumors of Rathke's pouch with infiltration of the base of the 
skull or metastases.
    13.12  Brain or spinal cord:
    A. Metastatic carcinoma to brain or spinal cord.
    B. Evaluate other tumors under the criteria described in 11.05 and 
11.08.
    13.13  Lungs.
    A. Unresectable or with incomplete excision; or
    B. Recurrence or metastases after resection; or
    C. Oat cell (small cell) carcinoma; or
    D. Squamous cell carcinoma, with metastases beyond the hilar lymph 
nodes; or
    E. Other histologic types of carcinoma, including undifferentiated 
and mixed-cell types (but excluding oat cell carcinoma, 13.13C, and 
squamous cell carcinoma, 13.13D), with metastases to the hilar lymph 
nodes.
    13.14  Pleura or mediastinum:
    A. Malignant mesothelioma of pleura; or
    B. Malignant tumors, metastatic to pleura; or
    C. Malignant primary tumor of the mediastinum not controlled by 
prescribed therapy.
    13.15  Abdomen:
    A. Generalized carcinomatosis; or
    B. Retroperitoneal cellular sarcoma not controlled by prescribed 
therapy; or
    C. Ascites with demonstrated malignant cells.
    13.16  Esophagus or stomach:
    A. Carcinoma or sarcoma of the esophagus; or
    B. Carcinoma of the stomach with metastases to the regional lymph 
nodes or extension to surrounding structure; or
    C. Sarcoma of stomach not controlled by prescribed therapy; or
    D. Inoperable carcinoma; or
    E. Recurrence or metastases after resection.
    13.17  Small intestine:
    A. Carcinoma, sarcoma, or carcinoid tumor with metastases beyond the 
regional lymph nodes; or
    B. Recurrence of carcinoma, sarcoma, or carcinoid tumor after 
resection; or
    C. Sarcoma, not controlled by prescribed therapy.
    13.18  Large intestine (from ileocecal valve to and including anal 
canal)--carcinoma or sarcoma.
    A. Unresectable; or
    B. Metastases beyond the regional lymph nodes; or
    C. Recurrence or metastases after resection.
    13.19  Liver or gallbladder:
    A. Primary or metastatic malignant tumors of the liver; or
    B. Carcinoma of the gallbladder; or
    C. Carcinoma of the bile ducts.
    13.20  Pancreas:
    A. Carcinoma except islet cell carcinoma; or
    B. Islet cell carcinoma which is unresectable and physiologically 
active.
    13.21  Kidneys, adrenal glands, or ureters--carcinoma:
    A. Unresectable; or
    B. With hematogenous spread to distant sites; or
    C. With metastases to regional lymph nodes.
    13.22  Urinary bladder--carcinoma. With:
    A. Infiltration beyond the bladder wall; or
    B. Metastases to regional lymph nodes; or
    C. Unresectable; or
    D. Recurrence after total cystectomy; or

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    E. Evaluate renal impairment after total cystectomy under the 
criteria in 6.02.
    13.23  Prostate gland--carcinoma not controlled by prescribed 
therapy.
    13.24  Testicles:
    A. Choriocarcinoma; or
    B. Other malignant primary tumors with progressive disease not 
controlled by prescribed therapy.
    13.25  Uterus--carcinoma or sarcoma (corpus or cervix).
    A. Inoperable and not controlled by prescribed therapy; or
    B. Recurrent after total hysterectomy; or
    C. Total pelvic exenteration
    13.26  Ovaries--all malignant, primary or recurrent tumors. With:
    A. Ascites with demonstrated malignant cells; or
    B. Unresectable infiltration; or
    C. Unresectable metastases to omentum or elsewhere in the peritoneal 
cavity; or
    D. Distant metastases.
    13.27  Leukemia: Evaluate under the criteria of 7.00ff, Hemic and 
Lymphatic Sytem.
    13.28  Uterine (Fallopian) tubes--carcinoma or sarcoma:
    A. Unresectable, or
    B. Metastases to regional lymph nodes.
    13.29  Penis--carcinoma with metastases to regional lymph nodes.
    13.30  Vulva--carcinoma, with distant metastases.

                          14.00  Immune System

    A. Listed disorders include impairments involving deficiency of one 
or more components of the immune system (i.e., antibody-producing B 
cells; a number of different types of cells associated with cell-
mediated immunity including T-lymphocytes, macrophages and monocytes; 
and components of the complement system).
    B. Dysregulation of the immune system may result in the development 
of a connective tissue disorder. Connective tissue disorders include 
several chronic multisystem disorders that differ in their clinical 
manifestation, course, and outcome. They generally evolve and persist 
for months or years, may result in loss of functional abilities, and may 
require long-term, repeated evaluation and management.
    The documentation needed to establish the existence of a connective 
tissue disorder is medical history, physical examination, selected 
laboratory studies, medically acceptable imaging techniques and, in some 
instances, tissue biopsy. However, the Social Security Administration 
will not purchase diagnostic tests or procedures that may involve 
significant risk, such as biopsies or angiograms. Generally, the 
existing medical evidence will contain this information.
    A longitudinal clinical record of at least 3 months demonstrating 
active disease despite prescribed treatment during this period with the 
expectation that the disease will remain active for 12 months is 
necessary for assessment of severity and duration of impairment.
    To permit appropriate application of a listing, the specific 
diagnostic features that should be documented in the clinical record for 
each of the disorders are summarized for systemic lupus erythematosus 
(SLE), systemic vasculitis, systemic sclerosis and scleroderma, 
polymyositis or dermatomyositis, and undifferentiated connective tissue 
disorders.
    In addition to the limitations caused by the connective tissue 
disorder per se, the chronic adverse effects of treatment (e.g., 
corticosteroid-related ischemic necrosis of bone) may result in 
functional loss.
    These disorders may preclude performance of any gainful activity by 
reason of severe loss of function in a single organ or body system, or 
lesser degrees of functional loss in two or more organs/body systems 
associated with significant constitutional symptoms and signs of severe 
fatigue, fever, malaise, and weight loss. We use the term ``severe'' in 
these listings to describe medical severity; the term does not have the 
same meaning as it does when we use it in connection with a finding at 
the second step of the sequential evaluation processes in 
Secs. 404.1520, 416.920, and 416.924.
    1. Systemic lupus erythematosus (14.02)--This disease is 
characterized clinically by constitutional symptoms and signs (e.g., 
fever, fatigability, malaise, weight loss), multisystem involvement and, 
frequently, anemia, leukopenia, or thrombocytopenia. Immunologically, an 
array of circulating serum auto-antibodies can occur, but are highly 
variable in pattern. Generally the medical evidence will show that 
patients with this disease will fulfill The 1982 Revised Criteria for 
the Classification of Systemic Lupus Erythematosus of the American 
College of Rheumatology. (Tan, E.M., et al., Arthritis Rheum. 25: 11271-
1277, 1982).
    2. Systemic vasculitis (14.03)--This disease occurs acutely in 
association with adverse drug reactions, certain chronic infections and, 
occasionally, malignancies. More often it is idiopathic and chronic. 
There are several clinical patterns, including classical polyarteritis 
nodosa, aortic arch arteritis, giant cell arteritis, Wegener's 
granulomatosis, and vasculitis associated with other connective tissue 
disorders (e.g., rheumatoid arthritis, SLE, Sjogren's syndrome, 
cryoglobulinemia). Cutaneous vasculitis may or may not be associated 
with systemic involvement and the patterns of vascular and ischemic 
involvement are highly variable. The diagnosis is confirmed by 
angiography or tissue biopsy when the disease is suspected clinically. 
Most patients who are

[[Page 450]]

stated to have this disease will have the results of the confirmatory 
angiogram or biopsy in their medical records.
    3. Systemic sclerosis and scleroderma (14.04)--These disorders 
constitute a spectrum of disease in which thickening of the skin is the 
clinical hallmark. Raynaud's phenomena, often severe and progressive, 
are especially frequent and may be the peripheral manifestation of a 
generalized vasospastic abnormality in the heart, lungs, and kidneys. 
The CREST syndrome (calcinosis, Raynaud's phenomena, esophageal 
dysmotility, sclerodactyly, telangiectasia) is a variant that may slowly 
progress to the generalized process, systemic sclerosis, over years. In 
addition to skin and blood vessels, the major organ/body system 
involvement includes the gastrointestinal tract, lungs, heart, kidneys, 
and muscle. Although arthritis can occur, joint dysfunction results 
primarily from soft tissue/cutaneous thickening, fibrosis, and 
contractures.
    4. Polymyositis or dermatomyositis (14.05)--This disorder is 
primarily an inflammatory process in striated muscle, which can occur 
alone or in association with other connective tissue disorders or 
malignancy. Weakness and, less frequently, pain and tenderness of the 
proximal limb-girdle musculature are the cardinal manifestations. 
Involvement of the cervical muscles, the cricopharyngeals, the 
intercostals, and diaphragm may occur in those with listing-level 
disease. Weakness of the pelvic girdle, as contemplated in Listing 
14.05A, may result in significant difficulty climbing stairs or rising 
from a chair without use of the arms. Proximal limb weakness in the 
upper extremities may result in inability to lift objects, and 
interference with dressing and combing hair. Weakness of anterior neck 
flexors may impair the ability to lift the head from the pillow in bed. 
The diagnosis is supported by elevated serum muscle enzymes (creatine 
phosphokinase (CPK), aminotransferases, aldolase), characteristic 
abnormalities on electromyography, and myositis on muscle biopsy.
    5. Undifferentiated connective tissue disorder (14.06)--This listing 
includes syndromes with clinical and immunologic features of several 
connective tissue disorders, but that do not satisfy the criteria for 
any of the disorders described; for instance, the individual may have 
clinical features of systemic lupus erythematosus and systemic 
vasculitis and the serologic findings of rheumatoid arthritis. It also 
includes overlap syndromes with clinical features of more than one 
established connective tissue disorder. For example, the individual may 
have features of both rheumatoid arthritis and scleroderma. The correct 
designation of this disorder is important for assessment of prognosis.
    C. Allergic disorders (e.g., asthma or atopic dermatitis) are 
discussed and evaluated under the appropriate listing of the affected 
body system.
    D. Human immunodeficiency virus (HIV) infection.
    1. HIV infection is caused by a specific retrovirus and may be 
characterized by susceptibility to one or more opportunistic diseases, 
cancers, or other conditions, as described in 14.08. Any individual with 
HIV infection, including one with a diagnosis of acquired 
immunodeficiency syndrome (AIDS), may be found disabled under this 
listing if his or her impairment meets any of the criteria in 14.08 or 
is of equivalent severity to any impairment in 14.08.
    2. Definitions. In 14.08, the terms ``resistant to treatment,'' 
``recurrent,'' and ``disseminated'' have the same general meaning as 
used by the medical community. The precise meaning of any of these terms 
will depend upon the specific disease or condition in question, the body 
system affected, the usual course of the disorder and its treatment, and 
the other circumstances of the case.
    ``Resistant to treatment'' means that a condition did not respond 
adequately to an appropriate course of treatment. Whether a response is 
adequate, or a course of treatment appropriate, will depend on the facts 
of the particular case.
    ``Recurrent'' means that a condition that responded adequately to an 
appropriate course of treatment has returned after a period of remission 
or regression. The extent of response (or remission) and the time 
periods involved will depend on the facts of the particular case.
    ``Disseminated'' means that a condition is spread widely over a 
considerable area or body system(s). The type and extent of the spread 
will depend on the specific disease.
    As used in 14.08I, ``significant involuntary weight loss'' does not 
correspond to a specific minimum amount or percentage of weight loss. 
Although, for purposes of this listing, an involuntary weight loss of at 
least 10 percent of baseline is always considered significant, loss of 
less than 10 percent may or may not be significant, depending on the 
individual's baseline weight and body habitus. (For example, a 7-pound 
weight loss in a 100-pound female who is 63 inches tall might be 
considered significant; but a 14-pound weight loss in a 200-pound female 
who is the same height might not be significant.)
    3. Documentation of HIV infection. The medical evidence must include 
documentation of HIV infection. Documentation may be by laboratory 
evidence or by other generally acceptable methods consistent with the 
prevailing state of medical knowledge and clinical practice.
    a. Documentation of HIV infection by definitive diagnosis. A 
definitive diagnosis of

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HIV infection is documented by one or more of the following laboratory 
tests:
    i. A serum specimen that contains HIV antibodies. HIV antibodies are 
usually detected by a screening test. The most commonly used screening 
test is the ELISA. Although this test is highly sensitive, it may yield 
false positive results. Therefore, positive results from an ELISA must 
be confirmed by a more definitive test (e.g., Western blot, 
immunofluorescence assay).
    ii. A specimen that contains HIV antigen (e.g., serum specimen, 
lymphocyte culture, or cerebrospinal fluid (CSF) specimen).
    iii. Other test(s) that are highly specific for detection of HIV 
(e.g., polymerase chain reaction (PCR)), or that are acceptable methods 
of detection consistent with the prevailing state of medical knowledge.
    When laboratory testing for HIV infection has been performed, every 
reasonable effort must be made to obtain reports of the results of that 
testing.
    Individuals who have HIV infection or other disorders of the immune 
system may undergo tests to determine T-helper lymphocyte (CD4) counts. 
The extent of immune depression correlates with the level or rate of 
decline of the CD4 count. In general, when the CD4 count is 200/mm\3\ or 
less (14 percent or less), the susceptibility to opportunistic disease 
is considerably increased. However, a reduced CD4 count alone does not 
establish a definitive diagnosis of HIV infection, or document the 
severity or functional effects of HIV infection.
    b. Other acceptable documentation of HIV infection.
    HIV infection may also be documented without the definitive 
laboratory evidence described in paragraph a, provided that such 
documentation is consistent with the prevailing state of medical 
knowledge and clinical practice and is consistent with the other 
evidence. If no definitive laboratory evidence is available, HIV 
infection may be documented by the medical history, clinical and 
laboratory findings, and diagnosis(es) indicated in the medical 
evidence. For example, a diagnosis of HIV infection will be accepted 
without definitive laboratory evidence if the individual has an 
opportunistic disease (e.g., toxoplasmosis of the brain, pneumocystis 
carinii pneumonia (PCP)) predictive of a defect in cell-mediated 
immunity, and there is no other known cause of diminished resistance to 
that disease (e.g., long-term steroid treatment, lymphoma). In such 
cases, every reasonable effort must be made to obtain full details of 
the history, medical findings, and results of testing.
    4. Documentation of the manifestations of HIV infection. The medical 
evidence must also include documentation of the manifestations of HIV 
infection. Documentation may be by laboratory evidence or by other 
generally acceptable methods consistent with the prevailing state of 
medical knowledge and clinical practice.
    a. Documentation of the manifestations of HIV infection by 
definitive diagnosis.
    The definitive method of diagnosing opportunistic diseases or 
conditions that are manifestations of HIV infection is by culture, 
serological test, or microscopic examination of biopsied tissue or other 
material (e.g., bronchial washings). Therefore, every reasonable effort 
must be made to obtain specific laboratory evidence of an opportunistic 
disease or other condition whenever this information is available. If a 
histological or other test has been performed, the evidence should 
include a copy of the appropriate report. If the report is not 
obtainable, the summary of hospitalization or a report from the treating 
source should include details of the findings and results of the 
diagnostic studies (including radiographic studies) or microscopic 
examination of the appropriate tissues or body fluids.
    Although a reduced CD4 lymphocyte count may show that there is an 
increased susceptibility to opportunistic infections and diseases (see 
14.00D3a, above), that alone does not establish the presence, severity, 
or functional effects of a manifestation of HIV infection.
    b. Other acceptable documentation of the manifestations of HIV 
infection.
    Manifestations of HIV infection may also be documented without the 
definitive laboratory evidence described in paragraph a, provided that 
such documentation is consistent with the prevailing state of medical 
knowledge and clinical practice and is consistent with the other 
evidence. If no definitive laboratory evidence is available, 
manifestations of HIV infection may be documented by medical history, 
clinical and laboratory findings, and diagnosis(es) indicated in the 
medical evidence. In such cases, every reasonable effort must be made to 
obtain full details of the history, medical findings, and results of 
testing.
    Documentation of cytomegalovirus (CMV) disease (14.08D) presents 
special problems because diagnosis requires identification of viral 
inclusion bodies or a positive culture from the affected organ, and the 
absence of any other infectious agent. A positive serology test 
identifies infection with the virus, but does not confirm a disease 
process. With the exception of chorioretinitis (which may be diagnosed 
by an ophthalmologist), documentation of CMV disease requires 
confirmation by biopsy or other generally acceptable methods consistent 
with the prevailing state of medical knowledge and clinical practice.
    5. Manifestations specific to women. Most women with severe 
immunosuppression secondary to HIV infection exhibit the typical 
opportunistic infections and other conditions, such as pneumocystis 
carinii pneumonia (PCP), candida esophagitis, wasting

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syndrome, cryptococcosis, and toxoplasmosis. However, HIV infection may 
have different manifestations in women than in men. Adjudicators must 
carefully scrutinize the medical evidence and be alert to the variety of 
medical conditions specific to or common in women with HIV infection 
that may affect their ability to function in the workplace.
    Many of these manifestations (e.g. vulvovaginal candidiasis, pelvic 
inflammatory disease) occur in women with or without HIV infection, but 
can be more severe or resistant to treatment, or occur more frequently 
in a woman whose immune system is suppressed. Therefore, when evaluating 
the claim of a woman with HIV infection, it is important to consider 
gynecologic and other problems specific to women, including any 
associated symptoms (e.g., pelvic pain), in assessing the severity of 
the impairment and resulting functional limitations. Manifestations of 
HIV infection in women may be evaluated under the specific criteria 
(e.g., cervical cancer under 14.08E), under an applicable general 
category (e.g., pelvic inflammatory disease under 14.08A5) or, in 
appropriate cases, under 14.08N.
    6. Evaluation. The criteria in 14.08 do not describe the full 
spectrum of diseases or conditions manifested by individuals with HIV 
infection. As in any case, consideration must be given to whether an 
individual's impairment(s) meets or equals in severity any other listing 
in appendix 1 of subpart P (e.g., a neoplastic disorder listed in 
13.00ff). Although 14.08 includes cross-references to other listings for 
the more common manifestations of HIV infection, other listings may 
apply.
    In addition, the impact of all impairments, whether or not related 
to HIV infection, must be considered. For example, individuals with HIV 
infection may manifest signs and symptoms of a mental impairment (e.g., 
anxiety, depression), or of another physical impairment. Medical 
evidence should include documentation of all physical and mental 
impairments, and the impairment(s) should be evaluated not only under 
the relevant listing(s) in 14.08, but under any other appropriate 
listing(s).
    It is also important to remember that individuals with HIV 
infection, like all other individuals, are evaluated under the full 
five-step sequential evaluation process described in Sec. 404.1520 and 
Sec. 416.920. If an individual with HIV infection is working and 
engaging in substantial gainful activity (SGA), or does not have a 
severe impairment, the case will be decided at the first or second step 
of the sequential evaluation process, and does not require evaluation 
under these listings. For an individual with HIV infection who is not 
engaging in SGA and has a severe impairment, but whose impairment(s) 
does not meet or equal in severity the criteria of a listing, evaluation 
must proceed through the final steps of the sequential evaluation 
process (or, as appropriate, the steps in the medical improvement review 
standard) before any conclusion can be reached on the issue of 
disability.
    7. Effect of treatment. Medical treatment must be considered in 
terms of its effectiveness in ameliorating the signs, symptoms, and 
laboratory abnormalities of the specific disorder, or of the HIV 
infection itself (e.g., antiretroviral agents) and in terms of any side 
effects of treatment that may further impair the individual.
    Response to treatment and adverse or beneficial consequences of 
treatment may vary widely. For example, an individual with HIV infection 
who develops pneumonia or tuberculosis may respond to the same 
antibiotic regimen used in treating individuals without HIV infection, 
but another individual with HIV infection may not respond to the same 
regimen. Therefore, each case must be considered on an individual basis, 
along with the effects of treatment on the individual's ability to 
function.
    A specific description of the drugs or treatment given (including 
surgery), dosage, frequency of administration, and a description of the 
complications or response to treatment should be obtained. The effects 
of treatment may be temporary or long term. As such, the decision 
regarding the impact of treatment should be based on a sufficient period 
of treatment to permit proper consideration.
    8. Functional criteria. Paragraph N of 14.08 establishes standards 
for evaluating manifestations of HIV infection that do not meet the 
requirements listed in 14.08A-M. Paragraph N is applicable for 
manifestations that are not listed in 14.08A-M, as well as those listed 
in 14.08A-M that do not meet the criteria of any of the rules in 14.08A-
M.
    For individuals with HIV infection evaluated under 14.08N, listing-
level severity will be assessed in terms of the functional limitations 
imposed by the impairment. The full impact of signs, symptoms, and 
laboratory findings on the claimant's ability to function must be 
considered. Important factors to be considered in evaluating the 
functioning of individuals with HIV infection include, but are not 
limited to: symptoms, such as fatigue and pain; characteristics of the 
illness, such as the frequency and duration of manifestations or periods 
of exacerbation and remission in the disease course; and the functional 
impact of treatment for the disease, including the side effects of 
medication.
    As used in 14.08N, ``repeated'' means that the conditions occur on 
an average of 3 times a year, or once every 4 months, each lasting 2 
weeks or more; or the conditions do not last for 2 weeks but occur 
substantially more frequently than 3 times in a year or once every 4 
months; or they occur less often than

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an average of 3 times a year or once every 4 months but last 
substantially longer than 2 weeks.
    To meet the criteria in 14.08N, an individual with HIV infection 
must demonstrate a marked level of restriction in one of three general 
areas of functioning: activities of daily living; social functioning; 
and difficulties in completing tasks due to deficiencies in 
concentration, persistence, or pace. Functional restrictions may result 
from the impact of the disease process itself on mental or physical 
functioning, or both. This could result from extended or intermittent 
symptoms, such as depression, fatigue, or pain, resulting in a 
limitation of the ability to concentrate, to persevere at a task, or to 
perform the task at an acceptable rate of speed. Limitations may also 
result from the side effects of medication.
    When ``marked'' is used as a standard for measuring the degree of 
functional limitation, it means more than moderate, but less than 
extreme. A marked limitation does not represent a quantitative measure 
of the individual's ability to do an activity for a certain percentage 
of the time. A marked limitation may be present when several activities 
or functions are impaired or even when only one is impaired. However, an 
individual need not be totally precluded from performing an activity to 
have a marked limitation, as long as the degree of limitation is such as 
to seriously interfere with the ability to function independently, 
appropriately, and effectively. The term ``marked'' does not imply that 
the impaired individual is confined to bed, hospitalized, or in a 
nursing home.
    Activities of daily living include, but are not limited to, such 
activities as doing household chores, grooming and hygiene, using a post 
office, taking public transportation, and paying bills. An individual 
with HIV infection who, because of symptoms such as pain imposed by the 
illness or its treatment, is not able to maintain a household or take 
public transportation on a sustained basis or without assistance (even 
though he or she is able to perform some self-care activities) would 
have marked limitation of activities of daily living.
    Social functioning includes the capacity to interact appropriately 
and communicate effectively with others. An individual with HIV 
infection who, because of symptoms or a pattern of exacerbation and 
remission caused by the illness or its treatment, cannot engage in 
social interaction on a sustained basis (even though he or she is able 
to communicate with close friends or relatives) would have marked 
difficulty maintaining social functioning.
    Completing tasks in a timely manner involves the ability to sustain 
concentration, persistence, or pace to permit timely completion of tasks 
commonly found in work settings. An individual with HIV infection who, 
because of HIV-related fatigue or other symptoms, is unable to sustain 
concentration or pace adequate to complete simple work-related tasks 
(even though he or she is able to do routine activities of daily living) 
would have marked difficulty completing tasks.

              14.01  Category of Impairments, Immune System

    14.02  Systemic lupus erythematosus. Documented as described in 
14.00B1, with:
    A. One of the following:
    1. Joint involvement, as described under the criteria in 1.00; or
    2. Muscle involvement, as described under the criteria in 14.05; or
    3. Ocular involvement, as described under the criteria in 2.00ff; or
    4. Respiratory involvement, as described under the criteria in 
3.00ff; or
    5. Cardiovascular involvement, as described under the criteria in 
4.00ff or 14.04D; or
    6. Digestive involvement, as described under the criteria in 5.00ff; 
or
    7. Renal involvement, as described under the criteria in 6.00ff; or
    8. Skin involvement, as described under the criteria in 8.00ff; or
    9. Neurological involvement, as described under the criteria in 
11.00ff; or
    10. Mental involvement, as described under the criteria in 12.00ff.

or

    B. Lesser involvement of two or more organs/body systems listed in 
paragraph A, with significant, documented, constitutional symptoms and 
signs of severe fatigue, fever, malaise, and weight loss. At least one 
of the organs/body systems must be involved to at least a moderate level 
of severity.
    14.03  Systemic vasculitis. Documented as described in 14.00B2, 
including documentation by angiography or tissue biopsy, with:
    A. Involvement of a single organ or body system, as described under 
the criteria in 14.02A.

or

    B. Lesser involvement of two or more organs/body systems listed in 
14.02A, with significant, documented, constitutional symptoms and signs 
of severe fatigue, fever, malaise, and weight loss. At least one of the 
organs/body systems must be involved to at least a moderate level of 
severity.
    14.04  Systemic sclerosis and scleroderma. Documented as described 
in 14.00B3, with:
    A. One of the following:
    1. Muscle involvement, as described under the criteria in 14.05; or
    2. Respiratory involvement, as described under the criteria in 
3.00ff; or
    3. Cardiovascular involvement, as described under the criteria in 
4.00ff; or

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    4. Digestive involvement, as described under the criteria in 5.00ff; 
or
    5. Renal involvement, as described under the criteria in 6.00ff.

or

    B. Lesser involvement of two or more organs/body systems listed in 
paragraph A, with significant, documented, constitutional symptoms and 
signs of severe fatigue, fever, malaise, and weight loss. At least one 
of the organs/body systems must be involved to at least a moderate level 
of severity.

or

    C. Generalized scleroderma with digital contractures.

or

    D. Severe Raynaud's phenomena, characterized by digital ulcerations, 
ischemia, or gangrene.
    14.05  Polymyositis or dermatomyositis. Documented as described in 
14.00B4, with:
    A. Severe proximal limb-girdle (shoulder and/or pelvic) muscle 
weakness, as described in 14.00B4.

or

    B. Less severe limb-girdle muscle weakness than in 14.05A, 
associated with cervical muscle weakness and one of the following to at 
least a moderate level of severity:
    1. Impaired swallowing with dysphagia and episodes of aspiration due 
to cricopharyngeal weakness, or
    2. Impaired respiration due to intercostal and diaphragmatic muscle 
weakness.

or

    C. If associated with malignant tumor, as described under the 
criteria in 13.00ff.

or

    D. If associated with generalized connective tissue disease, 
described under the criteria in 14.02, 14.03, 14.04, or 14.06.
    14.06  Undifferentiated connective tissue disorder. Documented as 
described in 14.00B5, and with impairment as described under the 
criteria in 14.02A, 14.02B, or 14.04.
    14.07  Immunoglobulin deficiency syndromes or deficiencies of cell-
mediated immunity, excepting HIV infection. Associated with documented, 
recurrent severe infection occurring 3 or more times within a 5-month 
period.
    14.08  Human immunodeficiency virus (HIV) infection. With 
documentation as described in 14.00D3 and one of the following:
    A. Bacterial infections:
    1. Mycobacterial infection (e.g., caused by M. avium-intracellulare, 
M. kansasii, or M. tuberculosis) at a site other than the lungs, skin, 
or cervical or hilar lymph nodes; or pulmonary tuberculosis resistant to 
treatment; or
    2. Nocardiosis; or
    3. Salmonella bacteremia, recurrent non-typhoid; or
    4. Syphilis or neurosyphilis--evaluate sequelae under the criteria 
for the affected body system (e.g., 2.00 Special Senses and Speech, 4.00 
Cardiovascular System, 11.00 Neurological); or
    5. Multiple or recurrent bacterial infection(s), including pelvic 
inflammatory disease, requiring hospitalization or intravenous 
antibiotic treatment 3 or more times in 1 year.

or

    B. Fungal infections:
    1. Aspergillosis; or
    2. Candidiasis, at a site other than the skin, urinary tract, 
intestinal tract, or oral or vulvovaginal mucous membranes; or 
candidiasis involving the esophagus, trachea, bronchi, or lungs; or
    3. Coccidioidomycosis, at a site other than the lungs or lymph 
nodes; or
    4. Cryptococcosis, at a site other than the lungs (e.g., 
cryptococcal meningitis); or
    5. Histoplasmosis, at a site other than the lungs or lymph nodes; or
    6. Mucormycosis.

or

    C. Protozoan or helminthic infections:
    1. Cryptosporidiosis, isosporiasis, or microsporidiosis, with 
diarrhea lasting for 1 month or longer; or
    2. Pneumocystis carinii pneumonia or extrapulmonary pneumocystis 
carinii infection; or
    3. Strongyloidiasis, extra-intestinal; or
    4. Toxoplasmosis of an organ other than the liver, spleen, or lymph 
nodes.

or

    D. Viral infections:
    1. Cytomegalovirus disease (documented as described in 14.00D4b) at 
a site other than the liver, spleen, or lymph nodes; or
    2. Herpes simplex virus causing:
    a. Mucocutaneous infection (e.g., oral, genital, perianal) lasting 
for 1 month or longer; or
    b. Infection at a site other than the skin or mucous membranes 
(e.g., bronchitis, pneumonitis, esophagitis, or encephalitis); or
    c. Disseminated infection; or
    3. Herpes zoster, either disseminated or with multidermatomal 
eruptions that are resistant to treatment; or
    4. Progressive multifocal leukoencephalopathy; or
    5. Hepatitis, as described under the criteria in 5.05.

or

    E. Malignant neoplasms:
    1. Carcinoma of the cervix, invasive, FIGO stage II and beyond; or
    2. Kaposi's sarcoma with:
    a. Extensive oral lesions; or
    b. Involvement of the gastrointestinal tract, lungs, or other 
visceral organs; or

[[Page 455]]

    c. Involvement of the skin or mucous membranes, as described under 
the criteria in 14.08F; or
    3. Lymphoma (e.g., primary lymphoma of the brain, Burkitt's 
lymphoma, immunoblastic sarcoma, other non-Hodgkins lymphoma, Hodgkin's 
disease); or
    4. Squamous cell carcinoma of the anus.

or

    F. Conditions of the skin or mucous membranes (other than described 
in B2, D2, or D3, above) with extensive fungating or ulcerating lesions 
not responding to treatment (e.g., dermatological conditions such as 
eczema or psoriasis, vulvovaginal or other mucosal candida, condyloma 
caused by human papillomavirus, genital ulcerative disease), or evaluate 
under the criteria in 8.00ff.

or

    G. Hematologic abnormalities:
    1. Anemia, as described under the criteria in 7.02; or
    2. Granulocytopenia, as described under the criteria in 7.15; or
    3. Thrombocytopenia, as described under the criteria in 7.06.

or

    H. Neurological abnormalities:
    1. HIV encephalopathy, characterized by cognitive or motor 
dysfunction that limits function and progresses; or
    2. Other neurological manifestations of HIV infection (e.g., 
peripheral neuropathy) as described under the criteria in 11.00ff.

or

    I. HIV wasting syndrome, characterized by involuntary weight loss of 
10 percent or more of baseline (or other significant involuntary weight 
loss, as described in 14.00D2) and, in the absence of a concurrent 
illness that could explain the findings, either:
    1. Chronic diarrhea with two or more loose stools daily lasting for 
1 month or longer; or
    2. Chronic weakness and documented fever greater than 38 deg. C 
(100.4 deg. F) for the majority of 1 month or longer.

or

    J. Diarrhea, lasting for 1 month or longer, resistant to treatment, 
and requiring intravenous hydration, intravenous alimentation, or tube 
feeding.

or

    K. Cardiomyopathy, as described under the criteria in 4.00ff or 
11.04.

or

    L. Nephropathy, as described under the criteria in 6.00ff.

or

    M. One or more of the following infections (other than described in 
A-L, above), resistant to treatment or requiring hospitalization or 
intravenous treatment 3 or more times in 1 year (or evaluate sequelae 
under the criteria for the affected body system).
    1. Sepsis; or
    2. Meningitis; or
    3. Pneumonia; or
    4. Septic arthritis; or
    5. Endocarditis; or
    6. Radiographically documented sinusitis.

or

    N. Repeated (as defined in 14.00D8) manifestations of HIV infection 
(including those listed in 14.08A-M, but without the requisite findings, 
e.g., carcinoma of the cervix not meeting the criteria in 14.08E, 
diarrhea not meeting the criteria in 14.08J, or other manifestations, 
e.g., oral hairy leukoplakia, myositis) resulting in significant, 
documented symptoms or signs (e.g., fatigue, fever, malaise, weight 
loss, pain, night sweats) and one of the following at the marked level 
(as defined in 14.00D8):
    1. Restriction of activities of daily living; or
    2. Difficulties in maintaining social functioning; or
    3. Difficulties in completing tasks in a timely manner due to 
deficiencies in concentration, persistence, or pace.

                                 Part B

    Medical criteria for the evaluation of impairments of children under 
age 18 (where criteria in Part A do not give appropriate consideration 
to the particular disease process in childhood).
Sec.
100.00  Growth Impairment.
101.00  Musculoskeletal System.
102.00  Special Senses and Speech.
103.00  Respiratory System.
104.00  Cardiovascular System.
105.00  Digestive System.
106.00  Genito-Urinary System.
107.00  Hemic and Lymphatic System.
108.00  [Reserved]
109.00  Endocrine System.
110.00  Multiple Body Systems.
111.00  Neurological.
112.00  Mental and Emotional Disorders.
113.00  Neoplastic Diseases, Malignant.
114.00  Immune System.

                        100.00  Growth Impairment

    A. Impairment of growth may be disabling in itself or it may be an 
indicator of the severity of the impairment due to a specific disease 
process.
    Determinations of growth impairment should be based upon the 
comparison of current height with at least three previous 
determinations, including length at birth, if available. Heights (or 
lengths) should be plotted on a standard growth chart, such as derived 
from the National Center for Health Statistics: NCHS Growth Charts. 
Height should be

[[Page 456]]

measured without shoes. Body weight corresponding to the ages 
represented by the heights should be furnished. The adult heights of the 
child's natural parents and the heights and ages of siblings should also 
be furnished. This will provide a basis upon which to identify those 
children whose short stature represents a familial characteristic rather 
than a result of disease. This is particularly true for adjudication 
under 100.02B.
    B. Bone age determinations should include a full descriptive report 
of roentgenograms specifically obtained to determine bone age and must 
cite the standardization method used. Where roentgenograms must be 
obtained currently as a basis for adjudication under 100.03, views of 
the left hand and wrist should be ordered. In addition, roentgenograms 
of the knee and ankle should be obtained when cessation of growth is 
being evaluated in an older child at, or past, puberty.
    C. The criteria in this section are applicable until closure of the 
major epiphyses. The cessation of significant increase in height at that 
point would prevent the application of these criteria.
    100.01  Category of Impairments, Growth
    100.02  Growth impairment, considered to be related to an additional 
specific medically determinable impairment, and one of the following:
    A. Fall of greater than 15 percentiles in height which is sustained; 
or
    B. Fall to, or persistence of, height below the third percentile.
    100.03  Growth impairment, not identified as being related to an 
additional, specific medically determinable impairment. With:
    A. Fall of greater than 25 percentiles in height which is sustained; 
and
    B. Bone age greater than two standard deviations (2 SD) below the 
mean for chronological age (see 100.00B).

                     101.00  Musculoskeletal System

    A. Rheumatoid arthritis. Documentation of the diagnosis of juvenile 
rheumatoid arthritis should be made according to an established 
protocol, such as that published by the Arthritis Foundation, Bulletin 
on the Rheumatic Diseases. Vol. 23, 1972-1973 Series, p 712. 
Inflammatory signs include persistent pain, tenderness, erythema, 
swelling, and increased local temperature of a joint.
    B. The measurements of joint motion are based on the technique for 
measurements described in the ``Joint Method of Measuring and 
Recording.'' published by the American Academy of Orthopedic Surgeons in 
1965, or ``The Extremities and Back'' in Guides to the Evaluation of 
Permanent Impairment, Chicago, American Medical Association, 1971, 
Chapter 1, pp. 1-48.
    C. Degenerative arthritis may be the end stage of many skeletal 
diseases and conditions, such as traumatic arthritis, collagen disorders 
septic arthritis, congenital dislocation of the hip, aseptic necrosis of 
the hip, slipped capital femoral epiphyses, skeletal dysplasias, etc.
    101.01  Category of Impairments, Musculoskeletal
    101.02    Juvenile rheumatoid arthritis. With:
    A. Persistence or recurrence of joint inflammation despite three 
months of medical treatment and one of the following:
    1. Limitation of motion of two major joints of 50 percent or 
greater; or
    2. Fixed deformity of two major weight-bearing joints of 30 degrees 
or more; or
    3. Radiographic changes of joint narrowing, erosion, or subluxation; 
or
    4. Persistent or recurrent systemic involvement such as 
iridocyclitis or pericarditis; or
    B. Steroid dependence.
    101.03  Deficit of musculoskeletal function due to deformity or 
musculoskeletal disease and one of the following:
    A. Walking is markedly reduced in speed or distance despite orthotic 
or prosthetic devices; or
    B. Ambulation is possible only with obligatory bilateral upper limb 
assistance (e.g., with walker, crutches); or
    C. Inability to perform age-related personal self-care activities 
involving feeding, dressing, and personal hygiene.
    101.05 Disorders of the spine.
    A. Fracture of vertebra with cord involvement (substantiated by 
appropriate sensory and motor loss); or
    B. Scoliosis (congenital idiopathic or neuromyopathic). With:
    1. Major spinal curve measuring 60 degrees or greater; or
    2. Spinal fusion of six or more levels. Consider under a disability 
for one year from the time of surgery; thereafter evaluate the residual 
impairment; or
    3. FEV (vital capacity) of 50 percent or less of predicted normal 
values for the individual's measured (actual) height; or
    C. Kyphosis or lordosis measuring 90 degrees or greater.
    101.08  Chronic osteomyelitis with persistence or recurrence of 
inflammatory signs or drainage for at least 6 months despite prescribed 
therapy and consistent radiographic findings.

                    102.00  Special Senses and Speech

    A. Visual impairments in children. Impairment of central visual 
acuity should be determined with use of the standard Snellen test chart. 
Where this cannot be used, as in very young children, a complete 
description should be provided of the findings using other appropriate 
methods of examination, including a description of the techniques used 
for determining the central visual acuity for distance.

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    The accommodative reflex is generally not present in children under 
6 months of age. In premature infants, it may not be present until 6 
months plus the number of months the child is premature. Therefore 
absence of accommodative reflex will be considered as indicating a 
visual impairment only in children above this age (6 months).
    Documentation of a visual disorder must include description of the 
ocular pathology.
    B. Hearing impairments in children. The criteria for hearing 
impairments in children take into account that a lesser impairment in 
hearing which occurs at an early age may result in a severe speech and 
language disorder.
    Improvement by a hearing aid, as predicted by the testing procedure, 
must be demonstrated to be feasible in that child, since younger 
children may be unable to use a hearing aid effectively.
    The type of audiometric testing performed must be described and a 
copy of the results must be included. The pure tone air conduction 
hearing levels in 102.08 are based on American National Standard 
Institute Specifications for Audiometers, S3.6-1969 (ANSI-1969). The 
report should indicate the specifications used to calibrate the 
audiometer.
    The finding of a severe impairment will be based on the average 
hearing levels at 500, 1000, 2000, and 3000 Hertz (Hz) in the better 
ear, and on speech discrimination, as specified in Sec. 102.08.
    102.01  Category of Impairments, Special Sense Organs
    102.02  Impairments of central visual acuity.
    A. Remaining vision in the better eye after best correction is 20/
200 or less; or
    B. For children below 3 years of age at time of adjudication:
    1. Absence of accommodative reflex (see 102.00A for exclusion of 
children under 6 months of age); or
    2. Retrolental fibroplasia with macular scarring or 
neovascularization; or
    3. Bilateral congenital cataracts with visualization of retinal red 
reflex only or when associated with other ocular pathology.
    102.08  Hearing impairments.
    A. For children below 5 years of age at time of adjudication, 
inability to hear air conduction thresholds at an average of 40 decibels 
(db) hearing level or greater in the better ear; or
    B. For children 5 years of age and above at time of adjudication:
    1. Inability to hear air conduction thresholds at an average of 70 
decibels (db) or greater in the better ear; or
    2. Speech discrimination scores at 40 percent or less in the better 
ear; or
    3. Inability to hear air conduction thresholds at an average of 40 
decibels (db) or greater in the better ear, and a speech and language 
disorder which significantly affects the clarity and content of the 
speech and is attributable to the hearing impairment.

                       103.00  Respiratory System

    A. Introduction. The listings in this section describe impairments 
resulting from respiratory disorder based on symptoms, physical signs, 
laboratory test abnormalities, and response to a regimen of treatment 
prescribed by a treating source. Respiratory disorders, along with any 
associated impairment(s) must be established by medical evidence. 
Evidence must be provided in sufficient detail to permit an independent 
reviewer to evaluate the severity of the impairment. Reasonable efforts 
should be made to ensure evaluation by a program physician specializing 
in childhood respiratory impairments or a qualified pediatrician.
    Many children, especially those who have listing-level impairments, 
will have received the benefit of medically prescribed treatment. 
Whenever there is such evidence, the longitudinal clinical record must 
include a description of the treatment prescribed by the treating source 
and response, in addition to information about the nature and severity 
of the impairment. It is important to document any prescribed treatment 
and response because this medical management may have improved the 
child's functional status. The longitudinal record should provide 
information regarding functional recovery, if any.
    Some children will not have received ongoing treatment or have an 
ongoing relationship with the medical community, despite the existence 
of a severe impairment(s). A child who does not receive treatment may or 
may not be able to show an impairment that meets the criteria of these 
listings. Even if a child does not show that his or her impairment meets 
the criteria of these listings, the child may have an impairment(s) that 
is medically or functionally equivalent in severity to one of the listed 
impairments. Unless the claim can be decided favorably on the basis of 
the current evidence, a longitudinal record is still important because 
it will provide information about such things as the ongoing medical 
severity of the impairment, the level of the child's functioning, and 
the frequency, severity, and duration of symptoms. Also, the asthma 
listing specifically includes a requirement for continuing signs and 
symptoms despite a regimen of prescribed treatment.
    Evaluation should include consideration of adverse effects of 
respiratory impairment in all relevant body systems, and especially on 
the child's growth and development or mental functioning, as described 
under the growth impairment (100.00), neurological (111.00), and mental 
disorders (112.00) listings.
    It must be remembered that these listings are only examples of 
common respiratory disorders that are severe enough to find a

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child disabled. When a child has a medically determinable impairment 
that is not listed, an impairment that does not meet the requirements of 
a listing, or a combination of impairments no one of which meets the 
requirements of a listing, we will make a determination whether the 
child's impairment(s) is medically or functionally equivalent in 
severity to the criteria of a listing. (See Secs. 404.1526, 416.926, and 
416.926a.)
    B. Documentation of Pulmonary Function Testing. The results of 
spirometry that are used for adjudication, under the 103.02 A and B, 
103.03, and 103.04 of these listings should be expressed in liters (L), 
body temperature and pressure saturated with water vapor (BTPS). The 
reported one-second forced expiratory volume (FEV1) and 
forced vital capacity (FVC) should represent the largest of at least 
three satisfactory forced expiratory maneuvers. Two of the satisfactory 
spirograms should be reproducible for both pre-bronchodilator tests and, 
if indicated, post-bronchodilator tests. A value is considered 
reproducible if it does not differ from the largest value by more than 5 
percent or 0.1 L, whichever is greater. The highest values of the 
FEV1 and FVC, whether from the same or different tracings, 
should be used to assess the severity of the respiratory impairment. 
Peak flow should be achieved early in expiration, and the spirogram 
should have a smooth contour with gradually decreasing flow throughout 
expiration. The zero time for measurement of the FEV1 and 
FVC, if not distinct, should be derived by linear back-extrapolation of 
peak flow to zero volume. A spirogram is satisfactory for measurement of 
the FEV1 if the expiratory volume at the back-extrapolated 
zero time is less than 5 percent of the FVC or 0.1 L, whichever is 
greater. The spirogram is satisfactory for measurement of the FVC if 
maximal expiratory effort continues for at least 6 seconds, or if there 
is a plateau in the volume-time curve with no detectable change in 
expired volume (VE) during the last 2 seconds of maximal expiratory 
effort.
    Spirometry should be repeated after administration of an aerosolized 
bronchodilator under supervision of the testing personnel if the pre-
bronchodilator FEV1 value is less than the appropriate 
reference value in table I or III, as appropriate. If a bronchodilator 
is not administered, the reason should be clearly stated in the report. 
Pulmonary function studies should not be performed unless the clinical 
status is stable (e.g., the child is not having an asthmatic attack or 
suffering from an acute respiratory infection or other chronic illness). 
Wheezing is common in asthma, chronic bronchitis, or chronic obstructive 
pulmonary disease and does not preclude testing. Pulmonary function 
studies performed to assess airflow obstruction without testing after 
bronchodilators cannot be used to assess levels of impairment in the 
range that prevents a child from performing age-appropriate activities, 
unless the use of bronchodilators is contraindicated. Post-
bronchodilator testing should be performed 10 minutes after 
bronchodilator administration. The dose and name of the bronchodilator 
administered should be specified. The values in 103.02 and 103.04 must 
only be used as criteria for the level of ventilatory impairment that 
exists during the child's most stable state of health (i.e., any period 
in time except during or shortly after an exacerbation).
    The appropriately labeled spirometric tracing, showing the child's 
name, date of testing, distance per second on the abscissa and distance 
per liter (L) on the ordinate, must be incorporated into the file. The 
manufacturer and model number of the device used to measure and record 
the spirogram should be stated. The testing device must accurately 
measure both time and volume, the latter to within 1 percent of a 3 L 
calibrating volume. If the spirogram was generated by any means other 
than direct pen linkage to a mechanical displacement-type spirometer, 
the spirometric tracing must show a recorded calibration of volume units 
using a mechanical volume input such as a 3 L syringe.
    If the spirometer directly measures flow, and volume is derived by 
electronic integration, the linearity of the device must be documented 
by recording volume calibrations at three different flow rates of 
approximately 30 L/min (3 L/6 sec), 60 L/min (3 L/3 sec), and 180 L/min 
(3 L/sec). The volume calibrations should agree to within 1 percent of a 
3 L calibrating volume. The proximity of the flow sensor to the child 
should be noted, and it should be stated whether or not a BTPS 
correction factor was used for the calibration recordings and for the 
child's actual spirograms.
    The spirogram must be recorded at a speed of at least 20 mm/sec and 
the recording device must provide a volume excursion of at least 10 mm/
L. If reproductions of the original spirometric tracings are submitted, 
they must be legible and have a time scale of at least 20 mm/sec and a 
volume scale of at least 10 mm/L to permit independent measurements. 
Calculation of FEV1 from a flow volume tracing is not 
acceptable, i.e., the spirogram and calibrations must be presented in a 
volume-time format at a speed of at least 20 mm/sec and a volume 
excursion of at least 10 mm/L to permit independent evaluation.
    A statement should be made in the pulmonary function test report of 
the child's ability to understand directions, as well as his or her 
efforts and cooperation in performing the pulmonary function tests.
    Purchase of a pulmonary function test is appropriate only when the 
child is capable of performing reproducible forced expiratory

[[Page 459]]

maneuvers. This capability usually occurs around age 6. Purchase of a 
pulmonary function test may be appropriate when there is a question of 
whether an impairment meets or is equivalent in severity to a listing, 
and the claim cannot otherwise be favorably decided.
    The pulmonary function tables in 103.02 and 103.04 are based on 
measurement of standing height without shoes. If a child has marked 
spinal deformities (e.g., kyphoscoliosis), the measured span between the 
fingertips with the upper extremities abducted 90 degrees should be 
substituted for height when this measurement is greater than the 
standing height without shoes.
    C. Documentation of chronic impairment of gas exchange.
    1. Arterial blood gas studies (ABGS). An ABGS performed at rest 
(while breathing room air, awake and sitting or standing) should be 
analyzed in a laboratory certified by a State or Federal agency. If the 
laboratory is not certified, it must submit evidence of participation in 
a national proficiency testing program as well as acceptable quality 
control at the time of testing. The report should include the altitude 
of the facility and the barometric pressure on the date of analysis.
    Purchase of resting ABGS may be appropriate when there is a question 
of whether an impairment meets or is equivalent in severity to a 
listing, and the claim cannot otherwise be favorably decided. Before 
purchasing resting ABGS, a program physician, preferably one experienced 
in the care of children with pulmonary disease, must review the clinical 
and laboratory data short of this procedure, including spirometry, to 
determine whether obtaining the test would present a significant risk to 
the child.
    2. Oximetry. Pulse oximetry may be substituted for arterial blood 
gases in children under 12 years of age. The oximetry unit should employ 
the basic technology of spectrophotometric plethysmography as described 
in Taylor, M.B., and Whitwain, J.G., ``Current Status of Pulse 
Oximetry,'' ``Anesthesia,'' Vol. 41, No. 9, pp. 943-949, 1986. The unit 
should provide a visual display of the pulse signal and the 
corresponding oxygen saturation. A hard copy of the readings (heart rate 
and saturation) should be provided. Readings should be obtained for a 
minimum of 5 minutes. The written report should describe patient 
activity during the recording, i.e., sleep rate, feeding, or exercise. 
Correlation between the actual heart rate determined by a trained 
observer and that displayed by the oximeter should be provided. A 
statement should be made in the report of the child's effort and 
cooperation during the test.
    Purchase of oximetry may be appropriate when there is a question of 
whether an impairment meets or is equivalent in severity to a listing, 
and the claim cannot otherwise be favorably decided.
    D. Cystic fibrosis is a disorder that affects either the respiratory 
or digestive body systems or both and may impact on a child's growth and 
development. It is responsible for a wide and variable spectrum of 
clinical manifestations and complications. Confirmation of the diagnosis 
is based upon an elevated sweat sodium concentration or chloride 
concentration accompanied by one or more of the following: the presence 
of chronic obstructive pulmonary disease, insufficiency of exocrine 
pancreatic function, meconium ileus, or a positive family history. The 
quantitative pilocarpine iontophoresis procedure for collection of sweat 
content must be utilized. Two methods are acceptable: the ``Procedure 
for the Quantitative Iontophoretic Sweat Test for Cystic Fibrosis,'' 
published by the Cystic Fibrosis Foundation and contained in, ``A Test 
for Concentration of Electrolytes in Sweat in Cystic Fibrosis of the 
Pancreas Utilizing Pilocarpine Iontophoresis,'' Gibson, I.E., and Cooke, 
R.E., ``Pediatrics,'' Vol 23: 545, 1959; or the ``Wescor Macroduct 
System.'' To establish the diagnosis of cystic fibrosis, the sweat 
sodium or chloride content must be analyzed quantitatively using an 
acceptable laboratory technique. Another diagnostic test is the ``CF 
gene mutation analysis'' for homozygosity of the cystic fibrosis gene. 
The pulmonary manifestations of this disorder should be evaluated under 
103.04. The nonpulmonary aspects of cystic fibrosis should be evaluated 
under the listings for the digestive system (105.00) or growth 
impairments (100.00). Because cystic fibrosis may involve the 
respiratory and digestive body systems, as well as impact on a child's 
growth and development, the combined effects of this involvement must be 
considered in case adjudication.
    E. Bronchopulmonary dysplasia (BPD). Bronchopulmonary dysplasia is a 
form of chronic obstructive pulmonary disease that arises as a 
consequence of acute lung injury in the newborn period and treatment of 
hyaline membrane disease, meconium aspiration, neonatal pneumonia and 
apnea of prematurity. The diagnosis is established by the requirement 
for continuous or nocturnal supplemental oxygen for more than 30 days, 
in association with characteristic radiographic changes and clinical 
signs of respiratory dysfunction, including retractions, rales, 
wheezing, and tachypnea.
    103.01  Category of Impairments, Respiratory System
    103.02  Chronic pulmonary insufficiency. With:
    A. Chronic obstructive pulmonary disease, due to any cause, with the 
FEV1 equal to or less than the value specified in Table I 
corresponding to the child's height without

[[Page 460]]

shoes. (In cases of marked spinal deformity, see 103.00B.);

                                 Table I                                
------------------------------------------------------------------------
                                                                  FEV1  
                                                                equal to
 Height without shoes (centimeters)     Height without shoes    or less 
                                              (inches)          than (L,
                                                                 BTPS)  
------------------------------------------------------------------------
119 or less.........................  46 or less.............       0.65
120-129.............................  47-50..................       0.75
130-139.............................  51-54..................       0.95
140-149.............................  55-58..................       1.15
150-159.............................  59-62..................       1.35
160-164.............................  63-64..................       1.45
165-169.............................  65-66..................       1.55
170 or more.........................  67 or more.............       1.65
                                                                        
------------------------------------------------------------------------

Or

    B. Chronic restrictive ventilatory disease, due to any cause, with 
the FVC equal to or less than the value specified in table II 
corresponding to the child's height without shoes. (In cases of marked 
spinal deformity, see 103.00B.);

                                Table II                                
------------------------------------------------------------------------
                                                               FVC equal
                                        Height without shoes     to or  
 Height without shoes (centimeters)           (inches)         less than
                                                               (L, BTPS)
------------------------------------------------------------------------
119 or less.........................  46 or less.............       0.65
120-129.............................  47-50..................       0.85
130-139.............................  51-54..................       1.05
140-149.............................  55-58..................       1.25
150-159.............................  59-62..................       1.45
160-164.............................  63-64..................       1.65
165-169.............................  65-66..................       1.75
170 or more.........................  67 or more.............       2.05
                                                                        
------------------------------------------------------------------------

Or

    C Frequent need for:
    1. Mechanical ventilation; or
    2. Nocturnal supplemental oxygen as required by persistent or 
recurrent episodes of hypoxemia;

Or

    D. The presence of a tracheostomy in a child under 3 years of age;

Or

    E. Bronchopulmonary dysplasia characterized by two of the following:
    1. Prolonged expirations; or
    2. Intermittent wheezing or increased respiratory effort as 
evidenced by retractions, flaring and tachypnea; or
    3. Hyperinflation and scarring on a chest radiograph or other 
appropriate imaging techniques; or
    4. Bronchodilator or diuretic dependency; or
    5. A frequent requirement for nocturnal supplemental oxygen; or
    6. Weight disturbance with:
    a. An involuntary weight loss (or failure to gain weight at an 
appropriate rate for age) resulting in a fall of 15 percentiles from 
established growth curve (on standard growth charts) which persists for 
2 months or longer; or
    b. An involuntary weight loss (or failure to gain weight at an 
appropriate rate for age) resulting in a fall to below the third 
percentile from established growth curve (on standard growth charts) 
which persists for 2 months or longer;

Or

    F. Two required hospital admissions (each longer than 24 hours) 
within a 6-month period for recurrent lower respiratory tract infections 
or acute respiratory distress associated with:
    1. Chronic wheezing or chronic respiratory distress; or
    2. Weight disturbance with:
    a. An involuntary weight loss (or failure to gain weight at an 
appropriate rate for age) resulting in a fall of 15 percentiles from 
established growth curve (on standard growth charts) which persists for 
2 months or longer; or
    b. An involuntary weight loss (or failure to gain weight at an 
appropriate rate for age) resulting in a fall to below the third 
percentile from established growth curve (on standard growth charts) 
which persists for 2 months or longer;

Or

    G. Chronic hypoventilation (PaCO2 greater than 45 mm Hg) 
or chronic cor pulmonale as described under the appropriate criteria in 
104.02;

Or

    H. Growth impairment as described under the criteria in 100.00.
    103.03  Asthma. With:
    A. FEV1 equal to or less than the value specified in 
Table I of 103.02A;

Or

    B. Attacks (as defined in 3.00C), in spite of prescribed treatment 
and requiring physician intervention, occurring at least once every 2 
months or at least six times a year. Each inpatient hospitalization for 
longer than 24 hours for control of asthma counts as two attacks, and an 
evaluation period of at least 12 consecutive months must be used to 
determine the frequency of attacks;

Or

    C. Persistent low-grade wheezing between acute attacks or absence of 
extended symptom-free periods requiring daytime and nocturnal use of 
sympathomimetic bronchodilators with one of the following:
    1. Persistent prolonged expiration with radiographic or other 
appropriate imaging techniques evidence of pulmonary hyperinflation or 
peribronchial disease; or

[[Page 461]]

    2. Short courses of corticosteroids that average more than 5 days 
per month for at least 3 months during a 12-month period;

Or

    D. Growth impairment as described under the criteria in 100.00.
    103.04  Cystic fibrosis. With:
    A. An FEV1 equal to or less than the appropriate value 
specified in Table III corresponding to the child's height without 
shoes. (In cases of marked spinal deformity, see 103.00B.);

Or

    B. For children in whom pulmonary function testing cannot be 
performed, the presence of two of the following:
    1. History of dyspnea on exertion or accumulation of secretions as 
manifested by repetitive coughing or cyanosis; or
    2. Persistent bilateral rales and rhonchi or substantial reduction 
of breath sounds related to mucous plugging of the trachea or bronchi; 
or
    3. Radiographic evidence of extensive disease, such as thickening of 
the proximal bronchial airways or persistence of bilateral peribronchial 
infiltrates;

Or

    C. Persistent pulmonary infection accompanied by superimposed, 
recurrent, symptomatic episodes of increased bacterial infection 
occurring at least once every 6 months and requiring intravenous or 
nebulization antimicrobial treatment;

Or

    D. Episodes of bronchitis or pneumonia or hemoptysis (more than 
blood-streaked sputum) or respiratory failure (documented according to 
3.00C), requiring physician intervention, occurring at least once every 
2 months or at least six times a year. Each inpatient hospitalization 
for longer than 24 hours for treatment counts as two episodes, and an 
evaluation period of at least 12 consecutive months must be used to 
determine the frequency of episodes;

Or

    E. Growth impairment as described under the criteria in 100.00.

                                Table III                               
     [Applicable only for evaluation under 103.04A--cystic fibrosis]    
------------------------------------------------------------------------
                                                                 FEV 1  
                                                                equal to
 Height without shoes (centimeters)     Height without shoes    or less 
                                              (inches)          than (L,
                                                                 BTPS)  
------------------------------------------------------------------------
119 or less.........................  46 or less.............       0.75
120-129.............................  47-50..................       0.85
130-139.............................  51-54..................       1.05
140-149.............................  55-58..................       1.35
150-159.............................  59-62..................       1.55
160-164.............................  63-64..................       1.85
165-169.............................  65-66..................       2.05
170 or more.........................  67 or more.............       2.25
------------------------------------------------------------------------

                      104.00  Cardiovascular System

                             A. Introduction

    The listings in this section describe childhood impairments 
resulting from congenital or acquired cardiovascular disease based on 
symptoms, physical signs, laboratory test abnormalities, and response to 
a regimen of therapy prescribed by a treating source. A longitudinal 
clinical record covering a period of not less than 3 months of 
observations and therapy is usually necessary for the assessment of 
severity and expected duration unless the child is a neonate or the 
claim can be decided favorably on the basis of the current evidence. All 
relevant evidence must be considered in assessing a child's disability. 
Reasonable efforts should be made to ensure evaluation by a program 
physician specializing in childhood cardiovascular impairments or a 
qualified pediatrician.
    Examples of congenital defects include: abnormalities of cardiac 
septation, such as ventricular septal defect or atrioventricular (AV) 
canal; abnormalities resulting in cyanotic heart disease, such as 
tetralogy of Fallot or transposition of the vessels; valvular defects or 
obstructions to ventricular outflow, including pulmonary or aortic 
stenosis and/or coarctation of the aorta; and major abnormalities of 
ventricular development, including hypoplastic left heart syndrome or 
pulmonary tricuspid atresia with hypoplastic right ventricle. Acquired 
heart disease may be due to cardiomyopathy, rheumatic heart disease, 
Kawasaki syndrome, or other etiologies. Recurrent arrhythmias, severe 
enough to cause functional impairment, may be seen with congenital or 
acquired heart disease or, more rarely, in children with structurally 
normal hearts.
    Cardiovascular impairments, especially chronic heart failure and 
congenital heart disease, may result in impairments in other body 
systems including, but not limited to, growth, neurological, and mental. 
Therefore, evaluation should include consideration of the adverse 
effects of cardiovascular impairment in all relevant body systems, and 
especially on the child's growth and development, or mental functioning, 
as described under the Growth impairment (100.00), Neurological 
(111.00), and Mental retardation (112.05) listings.
    Many children, especially those who have listing-level impairments, 
will have received

[[Page 462]]

the benefit of medically prescribed treatment. Whenever there is 
evidence of such treatment, the longitudinal clinical record must 
include a description of the therapy prescribed by the treating source 
and response, in addition to information about the nature and severity 
of the impairment. It is important to document any prescribed therapy 
and response because this medical management may have improved the 
child's functional status. The longitudinal record should provide 
information regarding functional recovery, if any.
    Some children will not have received ongoing treatment or have an 
ongoing relationship with the medical community despite the existence of 
a severe impairment(s). Unless the claim can be decided favorably on the 
basis of the current evidence, a longitudinal record is still important 
because it will provide information about such things as the ongoing 
medical severity of the impairment, the level of the child's 
functioning, and the frequency, severity, and duration of symptoms. 
Also, several listings include a requirement for continuing signs and 
symptoms despite a regimen of prescribed treatment. Even though a child 
who does not receive treatment may not be able to show an impairment 
that meets the criteria of these listings, the child may have an 
impairment(s) that is medically or functionally equivalent in severity 
to one of the listed impairments.
    Indeed, it must be remembered that these listings are only examples 
of common cardiovascular disorders that are severe enough to find a 
child disabled. When a child has a medically determinable impairment 
that is not listed, an impairment that does not meet the requirements of 
a listing, or a combination of impairments no one of which meets the 
requirements of a listing, we will make a determination whether the 
child's impairment(s) is medically or functionally equivalent in 
severity to the criteria of a listing. (See Secs. 404.1526, 416.926, and 
416.926a.)

                            B. Documentation

    Each child's file must include sufficiently detailed reports on 
history, physical examinations, laboratory studies, and any prescribed 
therapy and response to allow an independent reviewer to assess the 
severity and duration of the cardiovascular impairment. Data should be 
obtained preferably from an office or center experienced in pediatric 
cardiac assessment. The actual electrocardiographic tracing (or 
adequately marked photocopy) and echocardiogram report with a copy of 
relevant echocardiographic views should be included (see part A, 
4.00C1).
    Results of additional studies necessary to substantiate the 
diagnosis or to document the severity of the impairment, including two-
dimensional and Doppler echocardiography, and radionuclide 
ventriculograms, should be obtained as appropriate according to part A, 
4.00C3. Ambulatory electrocardiographic monitoring may also be obtained 
if necessary to document the presence or severity of an arrhythmia.
    Exercise testing, though increasingly used, is still less frequently 
indicated in children than in adults, and can rarely be successfully 
performed in children under 6 years of age. It may be of value in the 
assessment of some arrhythmias, in the assessment of the severity of 
chronic heart failure, and in the assessment of recovery of function 
following cardiac surgery or other therapy. It will only be purchased by 
the Social Security Administration if the case cannot be decided based 
on the available evidence and, if purchased, must be performed in a 
specialty center for pediatric cardiology or other facility qualified to 
perform exercise testing for children.
    Purchased exercise tests should be performed using a generally 
accepted protocol consistent with the prevailing state of medical 
knowledge and clinical practice. An exercise test should not be 
purchased for a child for whom the performance of the test is considered 
to constitute a significant risk by a program physician. See 4.00C2c.
    Cardiac catheterization will not be purchased by the Social Security 
Administration. If the results of catheterization are otherwise 
available, they should be obtained.

           C. Treatment and Relationship to Functional Status

    In general, conclusions about the severity of a cardiovascular 
impairment cannot be made on the basis of type of treatment rendered or 
anticipated. The overall clinical and laboratory evidence, including the 
treatment plan(s) or results, should be persuasive that a listing-level 
impairment exists. The amount of function restored and the time required 
for improvement after treatment (medical, surgical, or a prescribed 
program of progressive physical activity) vary with the nature and 
extent of the disorder, the type of treatment, and other factors. 
Depending upon the timing of this treatment in relation to the alleged 
onset date of disability, impairment evaluation may need to be deferred 
for a period of up to 3 months from the date of treatment to permit 
consideration of treatment effects.
    Evaluation should not be deferred if the claim can be favorably 
decided based upon the available evidence.
    The most life-threatening forms of congenital heart disease and 
cardiac impairments, such as those listed in 104.00D, almost always 
require surgical treatment within the first year of life to prevent 
early death. Even with surgery, these impairments are so severe that it 
is likely that the impairment will continue to be disabling long enough 
to meet the duration requirement because of

[[Page 463]]

significant residual impairment post-surgery, or the recovery time from 
surgery, or a combination of both factors. Therefore, when the 
impairment is one of those named in 104.00D, or is as severe as one of 
those impairments, the presence of a listing-level impairment can 
usually be found on the basis of planned or actual cardiac surgery.
    A child who has undergone surgical treatment for life-threatening 
heart disease will be found under a disability for 12 months following 
the date of surgery under 104.06H (for infants with life-threatening 
cardiac disease) or 104.09 (for a child of any age who undergoes cardiac 
transplantation) because of the uncertainty during that period 
concerning outcome or long-term results. After 12 months, continuing 
disability evaluation will be based upon residual impairment, which will 
consider the clinical course following treatment and comparison of 
symptoms, signs, and laboratory findings preoperatively and after the 
specified period. (See Sec. 404.1594 or Sec. 416.994a, as appropriate, 
for our rules on medical improvement and whether an individual is no 
longer disabled.)

                       D. Congenital Heart Disease

    Some congenital defects usually lead to listing-level impairment in 
the first year of life and require surgery within the first year as a 
life-saving measure. Examples of impairments that in most instances will 
require life-saving surgery before age 1, include, but are not limited 
to, the following: hypoplastic left heart syndrome; critical aortic 
stenosis with neonatal heart failure; critical coarctation of the aorta, 
with or without associated anomalies; complete AV canal defects; 
transposition of the great arteries; tetralogy of Fallot; and pulmonary 
atresia with intact ventricular septum.
    In addition, there are rarer defects which may lead to early 
mortality and that may require multiple surgical interventions or a 
combination of surgery and other major interventional procedures (e.g., 
multiple ``balloon'' catheter procedures). Examples of such defects 
include single ventricle, tricuspid atresia, and multiple ventricular 
septal defects.
    Pulmonary vascular obstructive disease can cause cardiac impairment 
in young children. When a large or nonrestrictive septal defect or 
ductus is present, pulmonary artery mean pressures of at least 70 
percent of mean systemic levels are used as a criterion of listing-level 
impairment. In the absence of such a defect (i.e., with primary 
pulmonary hypertension, or in some connective tissue disorders with 
cardiopulmonary involvement and pulmonary vascular destruction), 
listing-level impairment may be present at lower levels of pulmonary 
artery pressure, in the range of at least 50 percent of mean systemic 
levels.

                        E. Chronic Heart Failure

    Chronic heart failure in infants and children may manifest itself by 
pulmonary or systemic venous congestion, including cardiomegaly, chronic 
dyspnea, tachypnea, orthopnea, or hepatomegaly; or symptoms of limited 
cardiac output, such as weakness or fatigue; or a need for cardiotonic 
drugs. Fatigue or exercise intolerance in an infant may be manifested by 
prolonged feeding time associated with signs of cardiac impairment, 
including excessive respiratory effort and sweating. Other 
manifestations of chronic heart failure during infancy may include 
failure to gain weight or involuntary loss of weight and repeated lower 
respiratory tract infections.
    Cardiomegaly or ventricular dysfunction must be present and 
demonstrated by imaging techniques, such as two-dimensional and Doppler 
echocardiography. (Reference: Feigenbaum, Harvey, ``Echocardiography,'' 
4th Edition, Lea and Febiger, 1986, Appendix, pp. 621-639.) Chest x-ray 
(6 ft. PA film) will be considered indicative of cardiomegaly if the 
cardiothoracic ratio is over 60 percent at age 1 year or less, or 55 
percent at more than 1 year of age.
    Findings of cardiomegaly on chest x-ray must be accompanied by other 
evidence of chronic heart failure or ventricular dysfunction. This 
evidence may include clinical evidence, such as hepatomegaly, edema, or 
pulmonary venous congestion; or echocardiographic evidence, such as 
marked ventricular dilatation above established normals for age, or 
markedly reduced ejection fraction or shortening fraction.

                        F. Valvular Heart Disease

    Valvular heart disease requires documentation by appropriate imaging 
techniques, including Doppler echocardiogram studies or cardiac 
catheterization if catheterization results are available from a treating 
source or other source of record. Listing-level impairment is usually 
associated with critical aortic stenosis in a newborn child, persistent 
heart failure, arrhythmias, or valve replacement and ongoing 
anticoagulant therapy. The usual time after valvular surgery for 
adequate assessment of the results of treatment is considered to be 3 
months.

                       G. Rheumatic Heart Disease

    The diagnosis should be made in accordance with the current revised 
Jones criteria for guidance in the diagnosis of rheumatic fever.
    104.01  Category of Impairments, Cardiovascular System
    104.02  Chronic heart failure. Documented by clinical and laboratory 
findings as described in 104.00E, and with one of the following:

[[Page 464]]

    A. Persistent tachycardia at rest (see Table I);

OR

    B. Persistent tachypnea at rest (see Table II), or markedly 
decreased exercise tolerance (see 104.00E);

OR

    C. Recurrent arrhythmias, as described in 104.05;

OR

    D. Growth disturbance, with:
    1. An involuntary weight loss (or failure to gain weight at an 
appropriate rate for age) resulting in a fall of 15 percentiles from 
established growth curve (on standard growth charts) which persists for 
2 months or longer; or
    2. An involuntary weight loss (or failure to gain weight at an 
appropriate rate for age) resulting in a fall to below the third 
percentile from established growth curve (on standard growth charts) 
which persists for 2 months or longer; or
    3. Growth impairment as described under the criteria in 100.00.

                      Table I--Tachycardia at Rest                      
------------------------------------------------------------------------
                                                                 Apical 
                                                                 heart  
                             Age                                 (beats 
                                                                  per   
                                                                minute) 
------------------------------------------------------------------------
Under 1 yr...................................................        150
1 through 3 yrs..............................................        130
4 through 9 yrs..............................................        120
10 through 15 yrs............................................        110
Over 15 yrs..................................................        100
------------------------------------------------------------------------


                       Table II--Tachypnea at Rest                      
------------------------------------------------------------------------
                                                             Respiratory
                                                              rate over 
                            Age                                  (per   
                                                               minute)  
------------------------------------------------------------------------
Under 1 yr.................................................          40 
1 through 5 yrs............................................          35 
6 through 9 yrs............................................          30 
Over 9 yrs.................................................          25 
------------------------------------------------------------------------

    104.03  Hypertensive cardiovascular disease. With persistently 
elevated blood pressure equal to or greater than the 95th percentile for 
age (see Table III), and one of the following:
    A. Impaired renal function, as described in 106.02;

OR

    B. Cerebrovascular damage, as described in 111.06;

OR

    C. Chronic heart failure as described in 104.02.

                   Table III--Elevated Blood Pressure                   
------------------------------------------------------------------------
                                                 Systolic      Diastolic
                      Age                          over    OR     over  
                                                  (mmHg)         (mmHg) 
------------------------------------------------------------------------
Under 1 month..................................        95            -- 
1 month through 2 yrs..........................       112            74 
3 through 5 yrs................................       116            76 
6 through 9 yrs................................       122            78 
10 through 12 yrs..............................       126            82 
13 through 15 yrs..............................       136            86 
16 to 18 yrs...................................       142            92 
------------------------------------------------------------------------

    104.05  Recurrent arrhythmias, such as persistent or recurrent heart 
block (A-V dissociation), repeated symptomatic tachyarrhythmias or 
bradyarrhythmias or long QT syndrome arrhythmias, not related to 
reversible causes such as electrolyte abnormalities or digitalis 
glycoside or antiarrhythmic drug toxicity, resulting in uncontrolled 
repeated episodes of cardiac syncope or near syncope and arrhythmia 
despite prescribed treatment, including electronic pacemaker (see 
104.00A if there is no prescribed treatment), and documented by resting 
or ambulatory (Holter) electrocardiography coincident with the 
occurrence of syncope or near syncope.
    104.06  Congenital heart disease. With one of the following:
    A. Cyanotic heart disease, with persistent, chronic hypoxemia as 
manifested by:
    1. Hematocrit of 55 percent or greater on two or more evaluations 
within a 3-month period; or
    2. Arterial O2 saturation of less than 90 percent in room 
air, or resting PO2 of 60 Torr or less; or
    3. Hypercyanotic spells, syncope, characteristic squatting, or other 
incapacitating symptoms directly related to documented cyanotic heart 
disease; or
    4. Exercise intolerance with increased hypoxemia on exertion;

OR

    B. Chronic heart failure with evidence of ventricular dysfunction, 
as described in 104.02;

OR

    C. Recurrent arrhythmias as described in 104.05;

OR

    D. Secondary pulmonary vascular obstructive disease with a mean 
pulmonary arterial pressure elevated to at least 70 percent of the mean 
systemic arterial pressure;

OR

    E. Congenital valvular or other stenotic defects, or valvular 
regurgitation, as described in 104.00F and 104.07;

OR

    F. Symptomatic acyanotic heart disease, with ventricular dysfunction 
resulting in

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significant restriction of age-appropriate activities or inability to 
complete age-appropriate tasks (see 104.00A);

OR

    G. Growth failure, as described in 100.00;

OR

    H. For infants under 12 months of age at the time of filing, with 
life-threatening congenital heart impairment that will or has required 
surgical treatment in the first year of life, consider the infant to be 
under a disability until the attainment of age 1 or for 12 months after 
surgery, whichever is the later event; thereafter, evaluate impairment 
severity with reference to 104.02 to 104.08.
    104.07  Valvular heart disease or other stenotic defects, or 
valvular regurgitation, documented by appropriate imaging techniques or 
cardiac catheterization.
    A. Evaluate according to criteria in 104.02, 104.05, 111.06, or 
11.04;

OR

    B. Critical aortic stenosis in newborn.
    104.08  Cardiomyopathies, documented by appropriate imaging 
techniques, including echocardiography or cardiac catheterization, if 
catheterization results are available from a treating source. Impairment 
must be associated with an ejection fraction of 50 percent or less and 
significant left ventricular dilatation using standardized age-
appropriate echocardiographic ventricular cavity measurements. Evaluate 
under the criteria in 104.02, 104.05, or 111.06.
    104.09  Cardiac transplantation. Consider under a disability for 1 
year following surgery; thereafter, evaluate residual impairment under 
104.02 to 104.08.
    104.13  Chronic rheumatic fever or rheumatic heart disease. Consider 
under a disability for 18 months from the established onset of 
impairment with one of the following:
    A. Persistence of rheumatic fever activity for 6 months or more 
which is manifested by significant murmur(s), cardiac enlargement (see 
104.00E) or ventricular dysfunction, and other abnormal laboratory 
findings, as for example, an elevated sedimentation rate or ECG 
findings;

OR

    B. Evidence of chronic heart failure, as described under 104.02;

OR

    C. Recurrent arrhythmias, as described under 104.05.
    104.14  Hyperlipidemia. Documented Type II homozygous hyperlipidemia 
with repeated plasma cholesterol levels of 500 mg/ml or greater, with 
one of the following:
    A. Myocardial ischemia, as described in 4.04B or 4.04C;

OR

    B. Significant aortic stenosis documented by Doppler 
echocardiographic techniques or cardiac catheterization;

OR

    C. Major disruption of normal life activities by repeated 
hospitalizations for plasmapheresis or other prescribed therapies, 
including liver transplant;

OR

    D. Recurrent pancreatitis complicating hyperlipidemia.
    104.15  Kawasaki syndrome. With one of the following:
    A. Major coronary artery aneurysm;

OR

    B. Chronic heart failure, as described in 104.02.

                        105.00  Digestive System

    A. Disorders of the digestive system which result in disability 
usually do so because of interference with nutrition and growth, 
multiple recurrent inflammatory lesions, or other complications of the 
disease. Such lesions or complications usually respond to treatment. To 
constitute a listed impairment, these must be shown to have persisted or 
be expected to persist despite prescribed therapy for a continuous 
period of at least 12 months.
    B. Documentation of gastrointestinal impairments should include 
pertinent operative findings, radiographic studies, endoscopy, and 
biopsy reports. Where a liver biopsy has been performed in chronic liver 
disease, documentation should include the report of the biopsy.
    C. Growth retardation and malnutrition. When the primary disorder of 
the digestive tract has been documented, evaluate resultant malnutrition 
under the criteria described in 105.08. Evaluate resultant growth 
impairment under the criteria described in 100.03. Intestinal disorders, 
including surgical diversions and potentially correctable congenital 
lesions, do not represent a severe impairment if the individual is able 
to maintain adequate nutrition growth and development.
    D. Multiple congenital anomalies. See related criteria, and consider 
as a combination of impairments.
    105.01  Category of Impairments, Digestive.
    105.03  Esophageal obstruction, caused by atresia, stricture, or 
stenosis with malnutrition as described under the criteria in 105.08.
    105.05  Chronic liver disease. With one of the following:
    A. Inoperable billiary atresia demonstrated by X-ray or surgery; or
    B. Intractable ascites not attributable to other causes, with serum 
albumin of 3.0 gm./100 ml. or less; or

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    C. Esophageal varices (demonstrated by angiography, barium swallow, 
or endoscopy or by prior performance of a specific shunt or plication 
procedure); or
    D. Hepatic coma, documentated by findings from hospital records; or
    E. Hepatic encephalopathy. Evaluate under the criteria in 112.02; or
    F. Chronic active inflammation or necrosis documented by SGOT 
persistently more than 100 units or serum bilirubin of 2.5 mg. percent 
or greater.
    105.07  Chronic inflammatory bowel disease (such as ulcerative 
colitis, regional enteritis), as documented in 105.00. With one of the 
following:
    A. Intestinal manifestations or complications, such as obstruction, 
abscess, or fistula formation which has lasted or is expected to last 12 
months; or
    B. Malnutrition as described under the criteria in 105.08; or
    C. Growth impairment as described under the criteria in 100.03.
    105.08  Malnutrition, due to demonstrable gastrointestinal disease 
causing either a fall of 15 percentiles of weight which persists or the 
persistence of weight which is less than the third percentile (on 
standard growth charts). And one of the following:
    A. Stool fat excretion per 24 hours:
    1. More than 15 percent in infants less than 6 months.
    2. More than 10 percent in infants 6-18 months.
    3. More than 6 percent in children more than 18 months; or
    B. Persistent hematocrit of 30 percent or less despite prescribed 
therapy; or
    C. Serum carotene of 40 mcg./100 ml. or less; or
    D. Serum albumin of 3.0 gm./100 ml. or less.

                      106.00  Genito-Urinary System

    A. Determination of the presence of chronic renal disease will be 
based upon the following factors:
    1. History, physical examination, and laboratory evidence of renal 
disease.
    2. Indications of its progressive nature or laboratory evidence of 
deterioration of renal function.
    B. Renal transplant. The amount of function restored and the time 
required to effect improvement depend upon various factors including 
adequacy of post transplant renal function, incidence of renal 
infection, occurrence of rejection crisis, presence of systemic 
complications (anemia, neuropathy, etc.) and side effects of 
corticosteroid or immuno-suppressive agents. A period of at least 12 
months is required for the individual to reach a point of stable medical 
improvement.
    C. Evaluate associated disorders and complications according to the 
appropriate body system listing.
    106.01  Category of Impairments, Genito-Urinary.
    106.02  Chronic renal disease. With:
    A. Persistent elevation of serum creatinine to 3 mg. per deciliter 
(100 ml.) or greater over at least 3 months; or
    B. Reduction of creatinine clearance to 30 ml. per minute (43 
liters/24 hours) per 1.73 m2 of body surface area over at 
least 3 months; or
    C. Chronic renal dialysis program for irreversible renal failure; or
    D. Renal transplant. Consider under a disability for 12 months 
following surgery; thereafter, evaluate the residual impairment (see 
106.00B).
    106.06  Nephrotic syndrome, with edema not controlled by prescribed 
therapy. And:
    A. Serum albumin less than 2 gm./100 ml.; or
    B. Proteinuria more than 2.5 gm./1.73m2/ day.

                   107.00  Hemic and Lymphatic System

    A. Sickle cell disease. Refers to a chronic hemolytic anemia 
associated with sickle cell hemoglobin, either homozygous or in 
combination with thalassemia or with another abnormal hemoglobin (such 
as C or F).
    Appropriate hematologic evidence for sickle cell disease, such as 
hemoglobin electrophoresis must be included. Vaso-occlusive, hemolytic, 
or aplastic episodes should be documented by description of severity, 
frequency, and duration.
    Disability due to sickle cell disease may be solely the result of a 
severe, persistent anemia or may be due to the combination of chronic 
progressive or episodic manifestations in the presence of a less severe 
anemia.
    Major visceral episodes causing disability include meningitis, 
osteomyelitis, pulmonary infections or infarctions, cerebrovascular 
accidents, congestive heart failure, genitourinary involvement, etc.
    B. Coagulation defects. Chronic inherited coagulation disorders must 
be documented by appropriate laboratory evidence such as abnormal 
thromboplastin generation, coagulation time, or factor assay.
    C. Acute leukemia. Initial diagnosis of acute leukemia must be based 
upon definitive bone marrow pathologic evidence. Recurrent disease may 
be documented by peripheral blood, bone marrow, or cerebrospinal fluid 
examination. The pathology report must be included.
    The designated duration of disability implicit in the finding of a 
listed impairment is contained in 107.11. Following the designated time 
period, a documented diagnosis itself is no longer sufficient to 
establish a severe impairment. The severity of any remaining impairment 
must be evaluated on the basis of the medical evidence.
    107.01  Category of Impairments, Hemic and Lymphatic.

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    107.03  Hemolytic anemia (due to any cause). Manifested by 
persistence of hematocrit of 26 percent or less despite prescribed 
therapy, and reticulocyte count of 4 percent or greater.
    107.05  Sickle cell disease. With:
    A. Recent, recurrent, severe vaso-occlusive crises (musculoskeletal, 
vertebral, abdominal); or
    B. A major visceral complication in the 12 months prior to 
application; or
    C. A hyperhemolytic or aplastic crisis within 12 months prior to 
application; or
    D. Chronic, severe anemia with persistence of hematocrit of 26 
percent or less; or
    E. Congestive heart failure, cerebrovascular damage, or emotional 
disorder as described under the criteria in 104.02, 111.00ff, or 
112.00ff.
    107.06  Chronic idiopathic thrombocytopenic purpura of childhood 
with purpura and thrombocytopenia of 40,000 platelets/cu. mm. or less 
despite prescribed therapy or recurrent upon withdrawal of treatment.
    107.08  Inherited coagulation disorder. With:
    A. Repeated spontaneous or inappropriate bleeding; or
    B. Hemarthrosis with joint deformity.
    107.11  Acute leukemia. Consider under a disability:
    A. For 2\1/2\ years from the time of initial diagnosis; or
    B. For 2\1/2\ years from the time of recurrence of active disease.

                           108.00  [Reserved]

                        109.00  Endocrine System

    A. Cause of disability. Disability is caused by a disturbance in the 
regulation of the secretion or metabolism of one or more hormones which 
are not adequately controlled by therapy. Such disturbances or 
abnormalities usually respond to treatment. To constitute a listed 
impairment these must be shown to have persisted or be expected to 
persist despite prescribed therapy for a continuous period of at least 
12 months.
    B. Growth. Normal growth is usually a sensitive indicator of health 
as well as of adequate therapy in children. Impairment of growth may be 
disabling in itself or may be an indicator of a severe disorder 
involving the endocrine system or other body systems. Where involvement 
of other organ systems has occurred as a result of a primary endocrine 
disorder, these impairments should be evaluated according to the 
criteria under the appropriate sections.
    C. Documentation. Description of characteristic history, physical 
findings, and diagnostic laboratory data must be included. Results of 
laboratory tests will be considered abnormal if outside the normal range 
or greater than two standard deviations from the mean of the testing 
laboratory. Reports in the file should contain the information provided 
by the testing laboratory as to their normal values for that test.
    D. Hyperfunction of the adrenal cortex. Evidence of growth 
retardation must be documented as described in 100.00. Elevated blood or 
urinary free cortisol levels are not acceptable in lieu of urinary 17-
hydroxycorticosteroid excretion for the diagnosis of adrenal cortical 
hyperfunction.
    E. Adrenal cortical insufficiency. Documentation must include 
persistent low plasma cortisol or low urinary 17-hydroxycorticosteroids 
or 17-ketogenic steroids and evidence of unresponsiveness to ACTH 
stimulation.
    109.01  Category of Impairments, Endrocrine
    109.02  Thyroid Disorders.
    A. Hyperthyroidism (as documented in 109.00C). With clinical 
manifestations despite prescribed therapy, and one of the following:
    1. Elevated serum thyroxine (T4) and either elevated free 
T4 or resin T3 uptake; or
    2. Elevated thyroid uptake of radioiodine; or
    3. Elevated serum triiodothyronine (T3).
    B. Hypothyroidism. With one of the following, despite prescribed 
therapy:
    1. IQ of 70 or less; or
    2. Growth impairment as described under the criteria in 100.02 A and 
B; or
    3. Precocious puberty.
    109.03  Hyperparathyroidism (as documented in 109.00C). With:
    A. Repeated elevated total or ionized serum calcium; or
    B. Elevated serum parathyroid hormone.
    109.04  Hypoparathyroidism or Pseudohypoparathyroidism. With:
    A. Severe recurrent tetany or convulsions which are unresponsive to 
prescribed therapy; or
    B. Growth retardation as described under criteria in 100.02 A and B.
    109.05  Diabetes insipidus, documented by pathologic hypertonic 
saline or water deprivation test. And one of the following:
    A. Intracranial space-occupying lesion, before or after surgery; or
    B. Unresponsiveness to Pitressin; or
    C. Growth retardation as described under the criteria in 100.02 A 
and B; or
    D. Unresponsive hypothalmic thirst center, with chronic or recurrent 
hypernatremia; or
    E. Decreased visual fields attributable to a pituitary lesion.
    109.06  Hyperfunction of the adrenal cortex (Primary or secondary). 
With:
    A. Elevated urinary 17-hyroxycortico-steroids (or 17-ketogenic 
steroids) as documented in 109.00 C and D; and
    B. Unresponsiveness to low-dose dexamethasone suppression.
    109.07  Adrenal cortical insufficiency (as documented in 109.00 C 
and E) with recent, recurrent episodes of circulatory collapse.

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    109.08  Juvenile diabetes mellitus (as documented in 109.00C) 
requiring parenteral insulin. And one of the following, despite 
prescribed therapy:
    A. Recent, recurrent hospitalizations with acidosis; or
    B. Recent, recurrent episodes of hypoglycemia; or
    C. Growth retardation as described under the criteria in 100.02 A or 
B; or
    D. Impaired renal function as described under the criteria in 
106.00ff.
    109.09  Iatrogenic hypercorticoid state.
    With chronic glucocorticoid therapy resulting in one of the 
following:
    A. Osteoporosis; or
    B. Growth retardation as described under the criteria in 100.02 A or 
B; or
    C. Diabetes mellitus as described under the criteria in 109.08; or
    D. Myopathy as described under the criteria in 111.06; or
    E. Emotional disorder as described under the criteria in 112.00ff.
    109.10  Pituitary dwarfism (with documented growth hormone 
deficiency). And growth impairment as described under the criteria in 
100.02B.
    109.11  Adrenogenital syndrome. With:
    A. Recent, recurrent self-losing episodes despite prescribed 
therapy; or
    B. Inadequate replacement therapy manifested by accelerated bone age 
and virilization, or
    C. Growth impairment as described under the criteria in 100.02 A or 
B.
    109.12  Hypoglycemia (as documented in 109.00C). With recent, 
recurrent hypoglycemic episodes producing convulsion or coma.
    109.13  Gonadal Dysgenesis (Turner's Syndrome), chromosomally 
proven. Evaluate the resulting impairment under the criteria for the 
appropriate body system.

                      110.00  Multiple Body Systems

    A. This section refers to those life-threatening catastrophic 
congenital abnormalities and other serious hereditary, congenital, or 
acquired disorders that usually affect two or more body systems and are 
expected to:
    1. Result in early death or developmental attainment of less than 2 
years of age as described in listing 110.08 (e.g., anencephaly or Tay-
Sachs); or
    2. Produce long-term, if not life-long, significant interference 
with age-appropriate major daily or personal care activities as 
described in listings 110.06 and 110.07. (Significant interference with 
age-appropriate activities is considered to exist where the 
developmental milestone age did not exceed two-thirds of the 
chronological age at the time of evaluation and such interference has 
lasted or could be expected to last at least 12 months.) See 112.00C for 
a discussion of developmental milestone criteria and evaluation of age-
appropriate activities.
    Down syndrome (except for mosaic Down syndrome, which is to be 
evaluated under listing 110.07) established by clinical findings, 
including the characteristic physical features, and laboratory evidence 
is considered to meet the requirement of listing 110.06 commencing at 
birth. Examples of disorders that should be evaluated under listing 
110.07 include mosaic Down syndrome and chromosomal abnormalities other 
than Down syndrome, in which a pattern of multiple impairments 
(including mental retardation) is known to occur, phenylketonuria (PKU), 
fetal alcohol syndrome, and severe chronic neonatal infections such as 
toxoplasmosis, rubella syndrome, cytomegalic inclusion disease, and 
herpes encephalitis.
    B. Documentation must include confirmation of a positive diagnosis 
by a clinical description of the usual abnormal physical findings 
associated with the condition and definitive laboratory tests, including 
chromosomal analysis, where appropriate (e.g., Down syndrome). Medical 
evidence that is persuasive that a positive diagnosis has been confirmed 
by appropriate laboratory testing, at some time prior to evaluation, is 
acceptable in lieu of a copy of the actual laboratory report.
    C. When multiple body system manifestations do not meet one of the 
established criteria of one of the listings, the combined impairments 
must be evaluated together to determine if they are equal in severity to 
a listed impairment.
    110.01  Category of Impairments, Multiple Body Systems
    110.06  Down syndrome (excluding mosaic Down syndrome) established 
by clinical and laboratory findings, as described in 110.00B. Consider 
the child disabled from birth.
    110.07  Multiple body dysfunction due to any confirmed (see 110.00B) 
hereditary, congenital, or acquired condition with one of the following:
    A. Persistent motor dysfunction as a result of hypotonia and/or 
musculoskeletal weakness, postural reaction deficit, abnormal primitive 
reflexes, or other neurological impairment as described in 111.00C, and 
with significant interference with age-appropriate major daily or 
personal care activities, which in an infant or young child include such 
activities as head control, swallowing, following, reaching, grasping, 
turning, sitting, crawling, walking, taking solids, feeding self; or
    B. Mental impairment as described under the criteria in 112.05 or 
112.12; or
    C. Growth impairment as described under the criteria in 100.02A or 
B; or
    D. Significant interference with communication due to speech, 
hearing, or visual impairments as described under the criteria in 102.00 
and 111.09; or

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    E. Cardiovascular impairments as described under the criteria in 
104.00; or
    F. Other impairments such as, but not limited to, malnutrition, 
hypothyroidism, or seizures should be evaluated under the criteria in 
105.08, 109.02 or 111.02 and 111.03, or the criteria for the affected 
body system.
    110.08  Catastrophic congenital abnormalities or disease. With:
    A. A positive diagnosis (such as anencephaly, trisomy D or E, 
cyclopia, etc.), generally regarded as being incompatible with 
extrauterine life; or
    B. A positive diagnosis (such as cri du chat, Tay-Sachs Disease) 
wherein attainment of the growth and development level of 2 years is not 
expected to occur.

                          111.00  Neurological

    A. Seizure disorder must be substantiated by at least one detailed 
description of a typical seizure. Report of recent documentation should 
include an electroencephalogram and neurological examination. Sleep EEG 
is preferable, especially with temporal lobe seizures. Frequency of 
attacks and any associated phenomena should also be substantiated.
    Young children may have convulsions in association with febrile 
illnesses. Proper use of 111.02 and 111.03 requires that a seizure 
disorder be established. Although this does not exclude consideration of 
seizures occurring during febrile illnesses, it does require 
documentation of seizures during nonfebrile periods.
    There is an expected delay in control of seizures when treatment is 
started, particularly when changes in the treatment regimen are 
necessary. Therefore, a seizure disorder should not be considered to 
meet the requirements of 111.02 or 111.03 unless it is shown that 
seizures have persisted more than three months after prescribed therapy 
began.
    B. Minor motor seizures. Classical petit mal seizures must be 
documented by characteristic EEG pattern, plus information as to age at 
onset and frequency of clinical seizures. Myoclonic seizures, whether of 
the typical infantile or Lennox-gastaut variety after infancy, must also 
be documented by the characteristic EEG pattern plus information as to 
age at onset and frequency of seizures.
    C. Motor dysfunction. As described in 111.06, motor dysfunction may 
be due to any neurological disorder. It may be due to static or 
progressive conditions involving any area of the nervous system and 
producing any type of neurological impairment. This may include 
weakness, spasticity, lack of coordination, ataxia, tremor, athetosis, 
or sensory loss. Documentation of motor dysfunction must include 
neurologic findings and description of type of neurologic abnormality 
(e.g., spasticity, weakness), as well as a description of the child's 
functional impairment (i.e., what the child is unable to do because of 
the abnormality). Where a diagnosis has been made, evidence should be 
included for substantiation of the diagnosis (e.g., blood chemistries 
and muscle biopsy reports), wherever applicable.
    D. Impairment of communication. The documentation should include a 
description of a recent comprehensive evaluation, including all areas of 
affective and effective communication, performed by a qualified 
professional.
    111.01  Category of Impairment, Neurological
    111.02  Major motor seizure disorder.
    A. Major motor seizures. In a child with an established seizure 
disorder, the occurrence of more than one major motor seizure per month 
despite at least three months of prescribed treatment. With:
    1. Daytime episodes (loss of consciousness and convulsive seizures); 
or
    2. Nocturnal episodes manifesting residuals which interfere with 
activity during the day.
    B. Major motor seizures. In a child with an established seizure 
disorder, the occurrence of a least one major motor seizure in the year 
prior to application despite at least three months of prescribed 
treatment. And one of the following:
    1. IQ of 70 or less; or
    2. Significant interference with communication due to speech, 
hearing, or visual defect; or
    3. Significant emotional disorder; or
    4. Where significant adverse effects of medication interfere with 
major daily activities.
    111.03  Minor motor seizure disorder. In a child with an established 
seizure disorder, the occurrence of more than one minor motor seizure 
per week, with alteration of awareness or loss of consciousness, despite 
at least three months of prescribed treatment.
    111.05  Brain tumors. A. Malignant gliomas (astrocytoma--Grades III 
and IV, glioblastoma multiforme), medulloblastoma, ependymoblastoma, 
primary sarcoma or brain stem gliomas; or
    B. Evaluate other brain tumors under the criteria for the resulting 
neurological impairment.
    111.06  Motor dysfunction (due to any neurological disorder). 
Persistent disorganization or deficit of motor function for age 
involving two extremities, which (despite prescribed therapy) interferes 
with age-appropriate major daily activities and results in disruption 
of:
    A. Fine and gross movements; or
    B. Gait and station.
    111.07  Cerebral palsy. With:
    A. Motor dysfunction meeting the requirements of 111.06 or 101.03; 
or
    B. Less severe motor dysfunction (but more than slight) and one of 
the following:
    1. IQ of 70 or less; or

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    2. Seizure disorder, with at least one major motor seizure in the 
year prior to application; or
    3. Significant interference with communication due to speech, 
hearing or visual defect; or
    4. Significant emotional disorder.
    111.08  Meningomyelocele (and related disorders). With one of the 
following despite prescribed treatment:
    A. Motor dysfunction meeting the requirements of Sec. 101.03 or 
Sec. 111.06; or
    B. Less severe motor dysfunction (but more than slight), and:
    1. Urinary or fecal incontinence when inappropriate for age; or
    2. IQ of 70 or less; or
    C. Four extremity involvement; or
    D. Noncompensated hydrocephalus producing interference with mental 
or motor developmental progression.
    111.09  Communication impairment, associated with documented 
neurological disorder. And one of the following:
    A. Documented speech deficit which significantly affects the clarity 
and content of the speech; or
    B. Documented comprehension deficit resulting in ineffective verbal 
communication for age; or
    C. Impairment of hearing as described under the criteria in 102.08.

                        112.00  Mental Disorders

    A. Introduction: The structure of the mental disorders listings for 
children under age 18 parallels the structure for the mental disorders 
listings for adults but is modified to reflect the presentation of 
mental disorders in children. The listings for mental disorders in 
children are arranged in 11 diagnostic categories: Organic mental 
disorders (112.02); schizophrenic, delusional (paranoid), 
schizoaffective, and other psychotic disorders (112.03); mood disorders 
(112.04); mental retardation (112.05); anxiety disorders (112.06); 
somatoform, eating, and tic disorders (112.07); personality disorders 
(112.08); psychoactive substance dependence disorders (112.09); autistic 
disorder and other pervasive developmental disorders (112.10); attention 
deficit hyperactivity disorder (112.11); and developmental and emotional 
disorders of newborn and younger infants (112.12).
    There are significant differences between the listings for adults 
and the listings for children. There are disorders found in children 
that have no real analogy in adults; hence, the differences in the 
diagnostic categories for children. The presentation of mental disorders 
in children, particularly the very young child, may be subtle and of a 
character different from the signs and symptoms found in adults. For 
example, findings such as separation anxiety, failure to mold or bond 
with the parents, or withdrawal may serve as findings comparable to 
findings that mark mental disorders in adults. The activities 
appropriate to children, such as learning, growing, playing, maturing, 
and school adjustment, are also different from the activities 
appropriate to the adult and vary widely in the different childhood 
stages.
    Each listing begins with an introductory statement that describes 
the disorder or disorders addressed by the listing. This is followed 
(except in listings 112.05 and 112.12) by medical findings (paragraph A 
criteria), which, if satisfied, lead to an assessment of impairment-
related functional limitations (paragraph B criteria). An individual 
will be found to have a listed impairment when the criteria of both 
paragraphs A and B of the listed impairment are satisfied.
    The purpose of the criteria in paragraph A is to substantiate 
medically the presence of a particular mental disorder. Specific 
symptoms and signs under any of the listings 112.02 through 112.12 
cannot be considered in isolation from the description of the mental 
disorder contained at the beginning of each listing category. 
Impairments should be analyzed or reviewed under the mental 
category(ies) indicated by the medical findings.
    Paragraph A of the listings is a composite of medical findings which 
are used to substantiate the existence of a disorder and may or may not 
be appropriate for children at specific developmental stages. However, a 
range of medical findings is included in the listings so that no age 
group is excluded. For example, in listing 112.02A7, emotional lability 
and crying would be inappropriate criteria to apply to older infants and 
toddlers, age 1 to attainment of age 3; whereas in 112.02A1, 
developmental arrest, delay, or regression are appropriate criteria for 
older infants and toddlers. Whenever the adjudicator decides that the 
requirements of paragraph A of a particular mental listing are 
satisfied, then that listing should be applied regardless of the age of 
the child to be evaluated.
    The purpose of the paragraph B criteria is to describe impairment-
related functional limitations which are applicable to children. 
Standardized tests of social or cognitive function and adaptive behavior 
are frequently available and appropriate for the evaluation of children 
and, thus, such tests are included in the paragraph B functional 
parameters. The functional restrictions in paragraph B must be the 
result of the mental disorder which is manifested by the medical 
findings in paragraph A.
    We have not included separate C criteria for listings 112.03 and 
112.06, as are found in the adult listings, because for the most part we 
do not believe that categories like residual schizophrenia or 
agoraphobia are commonly found in children. However, in unusual cases 
where these disorders are found in children and are comparable to the 
severity and duration found in adults, the adult

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12.03C and 12.06C criteria may be used for evaluation of the cases.
    The structure of the listings for Mental Retardation (112.05) and 
Developmental and Emotional Disorders of Newborn and Younger Infants 
(112.12) is different from that of the other mental disorders. Listing 
112.05 (Mental Retardation) contains six sets of criteria, any one of 
which, if satisfied, will result in a finding that the child's 
impairment meets the listing. Listing 112.12 (Developmental and 
Emotional Disorders of Newborn and Younger Infants) contains five 
criteria, any one of which, if satisfied, will result in a finding that 
the infant's impairment meets the listing.
    It must be remembered that these listings are only examples of 
common mental disorders that are severe enough to find a child disabled. 
When a child has a medically determinable impairment that is not listed, 
an impairment that does not meet the requirements of a listing, or a 
combination of impairments no one of which meets the requirements of a 
listing, we will make a determination whether the child's impairment(s) 
is medically or functionally equivalent in severity to the criteria of a 
listing. (See Secs. 404.1526, 416.926, and 416.926a.) This determination 
can be especially important in older infants and toddlers (age 1 to 
attainment of age 3), who may be too young for identification of a 
specific diagnosis, yet demonstrate serious functional limitations. 
Therefore, the determination of equivalency is necessary to the 
evaluation of any child's case when the child does not have an 
impairment that meets a listing.
    B. Need for Medical Evidence: The existence of a medically 
determinable impairment of the required duration must be established by 
medical evidence consisting of symptoms, signs, and laboratory findings 
(including psychological or developmental test findings). Symptoms are 
complaints presented by the child. Psychiatric signs are medically 
demonstrable phenomena which indicate specific abnormalities of 
behavior, affect, thought, memory, orientation, development, and contact 
with reality, as described by an appropriate medical source. Symptoms 
and signs generally cluster together to constitute recognizable mental 
disorders described in paragraph A of the listings. These findings may 
be intermittent or continuous depending on the nature of the disorder.
    C. Assessment of Severity: In childhood cases, as with adults, 
severity is measured according to the functional limitations imposed by 
the medically determinable mental impairment. However, the range of 
functions used to assess impairment severity for children varies at 
different stages of maturation. The functional areas that we consider 
are: Motor function; cognitive/communicative function; social function; 
personal function; and concentration, persistence, or pace. In most 
functional areas, there are two alternative methods of documenting the 
required level of severity: (1) Use of standardized tests alone, where 
appropriate test instruments are available, and (2) use of other medical 
findings. (See 112.00D for explanation of these documentation 
requirements.) The use of standardized tests is the preferred method of 
documentation if such tests are available.
    Newborn and younger infants (birth to attainment of age 1) have not 
developed sufficient personality differentiation to permit formulation 
of appropriate diagnoses. We have, therefore, assigned listing 112.12 
for Developmental and Emotional Disorders of Newborn and Younger Infants 
for the evaluation of mental disorders of such children. Severity of 
these disorders is based on measures of development in motor, cognitive/
communicative, and social functions. When older infants and toddlers 
(age 1 to attainment of age 3) do not clearly satisfy the paragraph A 
criteria of any listing because of insufficient developmental 
differentiation, they must be evaluated under the rules for equivalency. 
The principles for assessing the severity of impairment in such 
children, described in the following paragraphs, must be employed.
    In defining the severity of functional limitations, two different 
sets of paragraph B criteria corresponding to two separate age groupings 
have been established, in addition to listing 112.12, which is for 
children who have not attained age 1. These age groups are: older 
infants and toddlers (age 1 to attainment of age 3) and children (age 3 
to attainment of age 18). However, the discussion below in 112.00C1, 2, 
3, and 4, on the age-appropriate areas of function, is broken down into 
four age groupings: older infants and toddlers (age 1 to attainment of 
age 3), preschool children (age 3 to attainment of age 6), primary 
school children (age 6 to attainment of age 12), and adolescents (age 12 
to attainment of age 18). This was done to provide specific guidance on 
the age group variances in disease manifestations and methods of 
evaluation.
    Where ``marked'' is used as a standard for measuring the degree of 
limitation it means more than moderate but less than extreme. A marked 
limitation may arise when several activities or functions are impaired, 
or even when only one is impaired, as long as the degree of limitation 
is such as to interfere seriously with the ability to function (based 
upon age-appropriate expectations) independently, appropriately, 
effectively, and on a sustained basis. When standardized tests are used 
as the measure of functional parameters, a valid score that is two 
standard deviations below the norm for the test will be considered a 
marked restriction.
    1. Older infants and toddlers (age 1 to attainment of age 3). In 
this age group, impairment severity is assessed in three areas: (a) 
Motor

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development, (b) cognitive/communicative function, and (c) social 
function.
    a. Motor development. Much of what we can discern about mental 
function in these children frequently comes from observation of the 
degree of development of fine and gross motor function. Developmental 
delay, as measured by a good developmental milestone history confirmed 
by medical examination, is critical. This information will ordinarily be 
available in the existing medical evidence from the claimant's treating 
sources and other medical sources, supplemented by information from 
nonmedical sources, such as parents, who have observed the child and can 
provide pertinent historical information. It may also be available from 
standardized testing. If the delay is such that the older infant or 
toddler has not achieved motor development generally acquired by 
children no more than one-half the child's chronological age, the 
criteria are satisfied.
    b. Cognitive/communicative function. Cognitive/communicative 
function is measured using one of several standardized infant scales. 
Appropriate tests for the measure of such function are discussed in 
112.00D. Care should be taken to avoid reliance on screening devices, 
which are not generally considered to be sufficiently reliable 
instruments, although such devices may provide some relevant data; 
however, there will be cases in which the results of such tests show 
such severe abnormalities that further testing will be unnecessary.
    For older infants and toddlers, alternative criteria covering 
disruption in communication as measured by their capacity to use simple 
verbal and nonverbal structures to communicate basic needs are provided.
    c. Social function. Social function in older infants and toddlers is 
measured in terms of the development of relatedness to people (e.g., 
bonding and stranger anxiety) and attachment to animate or inanimate 
objects. Criteria are provided that use standard social maturity scales 
or alternative criteria that describe marked impairment in 
socialization.
    2. Preschool children (age 3 to attainment of age 6). For the age 
groups including preschool children through adolescence, the functional 
areas used to measure severity are: (a) Cognitive/communicative 
function, (b) social function, (c) personal function, and (d) 
deficiencies of concentration, persistence, or pace resulting in 
frequent failure to complete tasks in a timely manner. After 36 months, 
motor function is no longer felt to be a primary determinant of mental 
function, although, of course, any motor abnormalities should be 
documented and evaluated.
    a. Cognitive/communicative function. In the preschool years and 
beyond, cognitive function can be measured by standardized tests of 
intelligence, although the appropriate instrument may vary with age. A 
primary criterion for limited cognitive function is a valid verbal, 
performance, or full scale IQ of 70 or less. The listings also provide 
alternative criteria, consisting of tests of language development or 
bizarre speech patterns.
    b. Social function. Social functioning refers to a child's capacity 
to form and maintain relationships with parents, other adults, and 
peers. Social functioning includes the ability to get along with others 
(e.g., family members, neighborhood friends, classmates, teachers). 
Impaired social functioning may be caused by inappropriate externalized 
actions (e.g., running away, physical aggression--but not self-injurious 
actions, which are evaluated in the personal area of functioning), or 
inappropriate internalized actions (e.g., social isolation, avoidance of 
interpersonal activities, mutism). Its severity must be documented in 
terms of intensity, frequency, and duration, and shown to be beyond what 
might be reasonably expected for age. Strength in social functioning may 
be documented by such things as the child's ability to respond to and 
initiate social interaction with others, to sustain relationships, and 
to participate in group activities. Cooperative behaviors, consideration 
for others, awareness of others' feelings, and social maturity, 
appropriate to a child's age, also need to be considered. Social 
functioning in play and school may involve interactions with adults, 
including responding appropriately to persons in authority (e.g., 
teachers, coaches) or cooperative behaviors involving other children. 
Social functioning is observed not only at home but also in preschool 
programs.
    c. Personal function. Personal functioning in preschool children 
pertains to self-care; i.e., personal needs, health, and safety 
(feeding, dressing, toileting, bathing; maintaining personal hygiene, 
proper nutrition, sleep, health habits; adhering to medication or 
therapy regimens; following safety precautions). Development of self-
care skills is measured in terms of the child's increasing ability to 
help himself/herself and to cooperate with others in taking care of 
these needs. Impaired ability in this area is manifested by failure to 
develop such skills, failure to use them, or self-injurious actions. 
This function may be documented by a standardized test of adaptive 
behavior or by a careful description of the full range of self-care 
activities. These activities are often observed not only at home but 
also in preschool programs.
    d. Concentration, persistence, or pace. This function may be 
measured through observations of the child in the course of standardized 
testing and in the course of play.
    3. Primary school children (age 6 to attainment of age 12). The 
measures of function here are similar to those for preschool-age

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children except that the test instruments may change and the capacity to 
function in the school setting is supplemental information. Standardized 
measures of academic achievement, e.g., Wide Range Achievement Test-
Revised, Peabody Individual Achievement Test, etc., may be helpful in 
assessing cognitive impairment. Problems in social functioning, 
especially in the area of peer relationships, are often observed 
firsthand by teachers and school nurses. As described in 112.00D, 
Documentation, school records are an excellent source of information 
concerning function and standardized testing and should always be sought 
for school-age children.
    As it applies to primary school children, the intent of the 
functional criterion described in paragraph B2d, i.e., deficiencies of 
concentration, persistence, or pace resulting in failure to complete 
tasks in a timely manner, is to identify the child who cannot adequately 
function in primary school because of a mental impairment. Although 
grades and the need for special education placement are relevant factors 
which must be considered in reaching a decision under paragraph B2d, 
they are not conclusive. There is too much variability from school 
district to school district in the expected level of grading and in the 
criteria for special education placement to justify reliance solely on 
these factors.
    4. Adolescents (age 12 to attainment of age 18). Functional criteria 
parallel to those for primary school children (cognitive/communicative; 
social; personal; and concentration, persistence, or pace) are the 
measures of severity for this age group. Testing instruments appropriate 
to adolescents should be used where indicated. Comparable findings of 
disruption of social function must consider the capacity to form 
appropriate, stable, and lasting relationships. If information is 
available about cooperative working relationships in school or at part-
time or full-time work, or about the ability to work as a member of a 
group, it should be considered when assessing the child's social 
functioning. Markedly impoverished social contact, isolation, 
withdrawal, and inappropriate or bizarre behavior under the stress of 
socializing with others also constitute comparable findings. (Note that 
self-injurious actions are evaluated in the personal area of 
functioning.)
    a. Personal functioning in adolescents pertains to self-care. It is 
measured in the same terms as for younger children, the focus, however, 
being on the adolescent's ability to take care of his or her own 
personal needs, health, and safety without assistance. Impaired ability 
in this area is manifested by failure to take care of these needs or by 
self-injurious actions. This function may be documented by a 
standardized test of adaptive behavior or by careful descriptions of the 
full range of self-care activities.
    b. In adolescents, the intent of the functional criterion described 
in paragraph B2d is the same as in primary school children, However, 
other evidence of this functional impairment may also be available, such 
as from evidence of the child's performance in work or work-like 
settings.
    D. Documentation: The presence of a mental disorder in a child must 
be documented on the basis of reports from acceptable sources of medical 
evidence. See Secs. 404.1513 and 416.913. Descriptions of functional 
limitations may be available from these sources, either in the form of 
standardized test results or in other medical findings supplied by the 
sources, or both. (Medical findings consist of symptoms, signs, and 
laboratory findings.) Whenever possible, a medical source's findings 
should reflect the medical source's consideration of information from 
parents or other concerned individuals who are aware of the child's 
activities of daily living, social functioning, and ability to adapt to 
different settings and expectations, as well as the medical source's 
findings and observations on examination, consistent with standard 
clinical practice. As necessary, information from nonmedical sources, 
such as parents, should also be used to supplement the record of the 
child's functioning to establish the consistency of the medical evidence 
and longitudinality of impairment severity.
    For some newborn and younger infants, it may be very difficult to 
document the presence or severity of a mental disorder. Therefore, with 
the exception of some genetic diseases and catastrophic congenital 
anomalies, it may be necessary to defer making a disability decision 
until the child attains 3 months of age in order to obtain adequate 
observation of behavior or affect. See, also, 110.00 of this part. This 
period could be extended in cases of premature infants depending on the 
degree of prematurity and the adequacy of documentation of their 
developmental and emotional status.
    For infants and toddlers, programs of early intervention involving 
occupational, physical, and speech therapists, nurses, social workers, 
and special educators, are a rich source of data. They can provide the 
developmental milestone evaluations and records on the fine and gross 
motor functioning of these children. This information is valuable and 
can complement the medical examination by a physician or psychologist. A 
report of an interdisciplinary team that contains the evaluation and 
signature of an acceptable medical source is considered acceptable 
medical evidence rather than supplemental data.
    In children with mental disorders, particularly those requiring 
special placement, school records are a rich source of data, and the 
required reevaluations at specified time periods can provide the 
longitudinal data

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needed to trace impairment progression over time.
    In some cases where the treating sources lack expertise in dealing 
with mental disorders of children, it may be necessary to obtain 
evidence from a psychiatrist, psychologist, or pediatrician with 
experience and skill in the diagnosis and treatment of mental disorders 
as they appear in children. In these cases, however, every reasonable 
effort must be made to obtain the records of the treating sources, since 
these records will help establish a longitudinal picture that cannot be 
established through a single purchased examination.
    A reference to standardized psychological testing indicates the use 
of a psychological test that has appropriate characertistics of 
validity, reliability, and norms, administered individually by 
psychologist, psychiatrist, pediatrician, or other physician specialist 
qualified by training and experience to perform such an evaluation. 
Psychological tests are best considered as sets of tasks or questions 
designed to elicit particular behaviors when presented in a standardized 
manner.
    The salient characteristics of a good test are: (1) Validity, i.e., 
the test measures what it is supposed to measure, as determined by 
appropriate methods; (2) reliability, i.e., the consistency of results 
obtained over time with the same test and the same individual; and (3) 
appropriate normative data, i.e., individual test scores must be 
comparable to test data from other individuals or groups of a similar 
nature, representative of that population. In considering the validity 
of a test result, any discrepancies between formal test results and the 
child's customary behavior and daily activities should be duly noted and 
resolved.
    Tests meeting the above requirements are acceptable for the 
determination of the conditions contained in these listings. The 
psychologist, psychiatrist, pediatrician, or other physician specialist 
administering the test must have a sound technical and professional 
understanding of the test and be able to evaluate the research 
documentation related to the intended application of the test.
    Identical IQ scores obtained from different tests do not always 
reflect a similar degree of intellectual functioning. The IQ scores in 
listing 112.05 reflect values from tests of general intelligence that 
have a mean of 100 and a standard deviation of 15, e.g., the Wechsler 
series and the Revised Stanford-Binet scales. Thus, IQ's below 60 
reflect a level of intellectual functioning below 99.5 percent of the 
general population, and IQ's of 70 and below are characteristic of 
approximately the lowest 2 percent of the general population. IQ's 
obtained from standardized tests that deviate significantly from a mean 
of 100 and standard deviation of 15 require conversion to the 
corresponding percentile rank in the general population so that the 
actual degree of impairment reflected by the IQ scores can be 
determined. In cases where more than one IQ is customarily derived from 
the test administered, e.g., where verbal, performance, and full scale 
IQ's are provided, as on the Wechsler series, the lowest of these is 
used in conjunction with listing 112.05.
    IQ test results must also be sufficiently current for accurate 
assessment under 112.05. Generally, the results of IQ tests tend to 
stabilize by the age of 16. Therefore, IQ test results obtained at age 
16 or older should be viewed as a valid indication of the child's 
current status, provided they are compatible with the child's current 
behavior. IQ test results obtained between ages 7 and 16 should be 
considered current for 4 years when the tested IQ is less than 40, and 
for 2 years when the IQ is 40 or above. IQ test results obtained before 
age 7 are current for 2 years if the tested IQ is less than 40 and 1 
year if at 40 or above.
    Standardized intelligence test results are essential to the 
adjudication of all cases of mental retardation that are not covered 
under the provisions of listings 112.05A, 112.05B, and 112.05F. Listings 
112.05A, 112.05B, and 112.05F may be the bases for adjudicating cases 
where the results of standardized intelligence tests are unavailable, 
e.g., where the child's young age or condition precludes formal 
standardized testing.
    In conjunction with clinical examinations, sources may report the 
results of screening tests, i.e., tests used for gross determination of 
level of functioning. These tests do not have high validity and 
reliability and generally are not considered appropriate primary 
evidence for disability determinations. These screening instruments may 
be useful in uncovering potentially serious impairments, but generally 
must be supplemented by the use of formal, standardized psychological 
testing for the purposes of a disability determination, unless the 
determination is to be made on the basis of findings other than 
psychological test data; however, there will be cases in which the 
results of screening tests show such obvious abnormalities that further 
testing will clearly be unnecessary.
    Where reference is made to developmental milestones, this is defined 
as the attainment of particular mental or motor skills at an age-
appropriate level, i.e., the skills achieved by an infant or toddler 
sequentially and within a given time period in the motor and 
manipulative areas, in general understanding and social behavior, in 
self-feeding, dressing, and toilet training, and in language. This is 
sometimes expressed as a developmental quotient (DQ), the relation 
between developmental age and chronological age as determined by 
specific standardized measurements and observations. Such tests include, 
but are not limited to, the Cattell

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Infant Intelligence Scale, the Bayley Scales of Infant Development, and 
the Revised Stanford-Binet. Formal tests of the attainment of 
developmental milestones are generally used in the clinical setting for 
determination of the developmental status of infants and toddlers.
    Formal psychological tests of cognitive functioning are generally in 
use for preschool children, for primary school children, and for 
adolescents except for those instances noted below.
    Exceptions to formal standardized psychological testing may be 
considered when a psychologist, psychiatrist, pediatrician, or other 
physician specialist who is qualified by training and experience to 
perform such an evaluation is not readily available. In such instances, 
appropriate medical, historical, social, and other information must be 
reviewed in arriving at a determination.
    Exceptions may also be considered in the case of ethnic/cultural 
minorities where the native language or culture is not principally 
English-speaking. In such instances, psychological tests that are 
culture-free, such as the Leiter International Performance Scale or the 
Scale of Multi-Culture Pluralistic Assessment (SOMPA) may be substituted 
for the standardized tests described above. Any required tests must be 
administered in the child's principal language. When this is not 
possible, appropriate medical, historical, social, and other information 
must be reviewed in arriving at a determination. Furthermore, in 
evaluating mental impairments in children from a different culture, the 
best indicator of severity is often the level of adaptive functioning 
and how the child performs activities of daily living and social 
functioning.
    Neuropsychological testing refers to the administration of 
standardized tests that are reliable and valid with respect to assessing 
impairment in brain functioning. It is intended that the psychologist or 
psychiatrist using these tests will be able to evaluate the following 
functions: Attention/concentration, problem-solving, language, memory, 
motor, visual-motor and visual-perceptual, laterality, and general 
intelligence (if not previously obtained).
    E. Effect of Hospitalization or Residential Placement: As with 
adults, children with mental disorders may be placed in a variety of 
structured settings outside the home as part of their treatment. Such 
settings include, but are not limited to, psychiatric hospitals, 
developmental disabilities facilities, residential treatment centers and 
schools, community-based group homes, and workshop facilities. The 
reduced mental demands of such structured settings may attenuate overt 
symptomatology and superficially make the child's level of adaptive 
functioning appear better than it is. Therefore, the capacity of the 
child to function outside highly structured settings must be considered 
in evaluating impairment severity. This is done by determining the 
degree to which the child can function (based upon age-appropriate 
expectations) independently, appropriately, effectively, and on a 
sustained basis outside the highly structured setting.
    On the other hand, there may be a variety of causes for placement of 
a child in a structured setting which may or may not be directly related 
to impairment severity and functional ability. Placement in a structured 
setting in and of itself does not equate with a finding of disability. 
The severity of the impairment must be compared with the requirements of 
the appropriate listing.
    F. Effects of Medication: Attention must be given to the effect of 
medication on the child's signs, symptoms, and ability to function. 
While psychoactive medications may control certain primary 
manifestations of a mental disorder, e.g., hallucinations, impaired 
attention, restlessness, or hyperactivity, such treatment may or may not 
affect the functional limitations imposed by the mental disorder. In 
cases where overt symptomatology is attenuated by the psychoactive 
medications, particular attention must be focused on the functional 
limitations which may persist. These functional limitations must be 
considered in assessing impairment severity.
    Psychotropic medicines used in the treatment of some mental 
illnesses may cause drowsiness, blunted affect, or other side effects 
involving other body systems. Such side effects must be considered in 
evaluating overall impairment severity.
    112.01  Category of Impairments, Mental
    112.02 Organic Mental Disorders: Abnormalities in perception, 
cognition, affect, or behavior associated with dysfunction of the brain. 
The history and physical examination or laboratory tests, including 
psychological or neuropsychological tests, demonstrate or support the 
presence of an organic factor judged to be etiologically related to the 
abnormal mental state and associated deficit or loss of specific 
cognitive abilities, or affective changes, or loss of previously 
acquired functional abilities.
    The required level of severity for these disorders is met when the 
requirements in both A and B are satisfied.
    A. Medically documented persistence of at least one of the 
following:
    1. Developmental arrest, delay or regression; or
    2. Disorientation to time and place; or
    3. Memory impairment, either short-term (inability to learn new 
information), intermediate, or long-term (inability to remember 
information that was known sometime in the past); or
    4. Perceptual or thinking disturbance (e.g., hallucinations, 
delusions, illusions, or paranoid thinking); or

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    5. Disturbance in personality (e.g., apathy, hostility); or
    6. Disturbance in mood (e.g., mania, depression); or
    7. Emotional lability (e.g., sudden crying); or
    8. Impairment of impulse control (e.g., disinhibited social 
behavior, explosive temper outbursts); or
    9. Impairment of cognitive function, as measured by clinically 
timely standardized psychological testing; or
    10. Disturbance of concentration, attention, or judgment;

AND

    B. Select the appropriate age group to evaluate the severity of the 
impairment:
    1. For older infants and toddlers (age 1 to attainment of age 3), 
resulting in at least one of the following:
    a. Gross or fine motor development at a level generally acquired by 
children no more than one-half the child's chronological age, documented 
by:
    (1) An appropriate standardized test; or
    (2) Other medical findings (see 112.00C); or
    b. Cognitive/communicative function at a level generally acquired by 
children no more than one-half the child's chronological age, documented 
by:
    (1) An appropriate standardized test; or
    (2) Other medical findings of equivalent cognitive/communicative 
abnormality, such as the inability to use simple verbal or nonverbal 
behavior to communicate basic needs or concepts; or
    c. Social function at a level generally acquired by children no more 
than one-half the child's chronological age, documented by:
    (1) An appropriate standardized test; or
    (2) Other medical findings of an equivalent abnormality of social 
functioning, exemplified by serious inability to achieve age-appropriate 
autonomy as manifested by excessive clinging or extreme separation 
anxiety; or
    d. Attainment of development or function generally acquired by 
children no more than two-thirds of the child's chronological age in two 
or more areas covered by a., b., or c., as measured by an appropriate 
standardized test or other appropriate medical findings.
    2. For children (age 3 to attainment of age 18), resulting in at 
least two of the following:
    a. Marked impairment in age-appropriate cognitive/communicative 
function, documented by medical findings (including consideration of 
historical and other information from parents or other individuals who 
have knowledge of the child, when such information is needed and 
available) and including, if necessary, the results of appropriate 
standardized psychlogical tests, or for children under age 6, by 
appropriate tests of language and communication; or
    b. Marked impairment in age-appropriate social functioning, 
documented by history and medical findings (including consideration of 
information from parents or other individuals who have knowledge of the 
child, when such information is needed and available) and including, if 
necessary, the results of appropriate standardized tests; or
    c. Marked impairment in age-appropriate personal functioning, 
documented by history and medical findings (including consideration of 
information from parents or other individuals who have knowledge of the 
child, when such information is needed and available) and including, if 
necessary, appropriate standardized tests; or
    d. Deficiencies of concentration, persistence, or pace resulting in 
frequent failure to complete tasks in a timely manner.
    112.03  Schizophrenic, Delusional (Paranoid), Schizoaffective, and 
Other Psychotic Disorders: Onset of psychotic features, characterized by 
a marked disturbance of thinking, feeling, and behavior, with 
deterioration from a previous level of functioning or failure to achieve 
the expected level of social functioning.
    The required level of severity for these disorders is met when the 
requirements in both A and B are satisfied.
    A. Medically documented persistence, for at least 6 months, either 
continuous or intermittent, of one or more of the following:
    1. Delusions or hallucinations; or
    2. Catatonic, bizarre, or other grossly disorganized behavior; or
    3. Incoherence, loosening of associations, illogical thinking, or 
poverty of content of speech; or
    4. Flat, blunt, or inappropriate affect; or
    5. Emotional withdrawal, apathy, or isolation;

AND

    B. For older infants and toddlers (age 1 to attainment of age 3), 
resulting in at least one of the appropriate age-group criteria in 
paragraph B1 of 112.02; or, for children (age 3 to attainment of age 
18), resulting in at least two of the appropriate age-group criteria in 
paragraph B2 of 112.02.
    112.04  Mood Disorders: Characterized by a disturbance of mood 
(referring to a prolonged emotion that colors the whole psychic life, 
generally involving either depression or elation), accompanied by a full 
or partial manic or depressive syndrome.
    The required level of severity for these disorders is met when the 
requirements in both A and B are satisfied.
    A. Medically documented persistence, either continuous or 
intermittent, of one of the following:
    1. Major depressive syndrome, characterized by at least five of the 
following, which must include either depressed or irritable

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mood or markedly diminished interest or pleasure:
    a. Depressed or irritable mood; or
    b. Markedly diminished interest or pleasure in almost all 
activities; or
    c. Appetite or weight increase or decrease, or failure to make 
expected weight gains; or
    d. Sleep disturbance; or
    e. Psychomotor agitation or retardation; or
    f. Fatigue or loss of energy; or
    g. Feelings of worthlessness or guilt; or
    h. Difficulty thinking or concentrating; or
    i. Suicidal thoughts or acts; or
    j. Hallucinations, delusions, or paranoid thinking;

OR

    2. Manic syndrome, characterized by elevated, expansive, or 
irritable mood, and at least three of the following:
    a. Increased activity or psychomotor agitation; or
    b. Increased talkativeness or pressure of speech; or
    c. Flight of ideas or subjectively experienced racing thoughts; or
    d. Inflated self-esteem or grandiosity; or
    e. Decreased need for sleep; or
    f. Easy distractibility; or
    g. Involvement in activities that have a high potential of painful 
consequences which are not recognized; or
    h. Hallucinations, delusions, or paranoid thinking;

OR

    3. Bipolar or cyclothymic syndrome with a history of episodic 
periods manifested by the full symptomatic picture of both manic and 
depressive syndromes (and currently or most recently characterized by 
the full or partial symptomatic picture of either or both syndromes);

AND

    B. For older infants and toddlers (age 1 to attainment of age 3), 
resulting in at least one of the appropriate age-group criteria in 
paragraph B1 of 112.02; or, for children (age 3 to attainment of age 
18), resulting in at least two of the appropriate age-group criteria in 
paragraph B2 of 112.02.
    112.05  Mental Retardation: Characterized by significantly 
subaverage general intellectual functioning with deficits in adaptive 
functioning.
    The required level of severity for this disorder is met when the 
requirements in A, B, C, D, E, or F are satisfied.
    A. For older infants and toddlers (age 1 to attainment of age 3), 
resulting in at least one of the appropriate age-group criteria in 
paragraph B1 of 112.02; or, for children (age 3 to attainment of age 
18), resulting in at least two of the appropriate age-group criteria in 
paragraph B2 of 112.02;

OR

    B. Mental incapacity evidenced by dependence upon others for 
personal needs (grossly in excess of age-appropriate dependence) and 
inability to follow directions such that the use of standardized 
measures of intellectual functioning is precluded;

OR

    C. A valid verbal, performance, or full scale IQ of 59 or less;

OR

    D. A valid verbal, performance, or full scale IQ of 60 through 70 
and a physical or other mental impairment imposing additional and 
significant limitation of function;

OR

    E. A valid verbal, performance, or full scale IQ of 60 through 70 
and:
    1. For older infants and toddlers (age 1 to attainment of age 3), 
resulting in attainment of development or function generally acquired by 
children no more than two-thirds of the child's chronological age in 
either paragraphs B1a or B1c of 112.02; or
    2. For children (age 3 to attainment of age 18), resulting in at 
least one of paragraphs B2b or B2c or B2d of 112.02;

OR

    F. Select the appropriate age group:
    1. For older infants and toddlers (age 1 to attainment of age 3), 
resulting in attainment of development or function generally acquired by 
children no more than two-thirds of the child's chronological age in 
paragraph B1b of 112.02, and a physical or other mental impairment 
imposing additional and significant limitations of function;

OR

    2. For children (age 3 to attainment of age 18), resulting in the 
satisfaction of 112.02B2a, and a physical or other mental impairment 
imposing additional and significant limitations of function.
    112.06  Anxiety Disorders: In these disorders, anxiety is either the 
predominant disturbance or is experienced if the individual attempts to 
master symptoms, e.g., confronting the dreaded object or situation in a 
phobic disorder, attempting to go to school in a separation anxiety 
disorder, resisting the obsessions or compulsions in an obsessive 
compulsive disorder, or confronting strangers or peers in avoidant 
disorders.
    The required level of severity for these disorders is met when the 
requirements in both A and B are satisfied.
    A. Medically documented findings of at least one of the following:
    1. Excessive anxiety manifested when the child is separated, or 
separation is threatened, from a parent or parent surrogate; or
    2. Excessive and persistent avoidance of strangers; or
    3. Persistent unrealistic or excessive anxiety and worry 
(apprehensive expectation),

[[Page 478]]

accompanied by motor tension, autonomic hyperactivity, or vigilance and 
scanning; or
    4. A persistent irrational fear of a specific object, activity, or 
situation which results in a compelling desire to avoid the dreaded 
object, activity, or situation; or
    5. Recurrent severe panic attacks, manifested by a sudden 
unpredictable onset of intense apprehension, fear, or terror, often with 
a sense of impending doom, occurring on the average of at least once a 
week; or
    6. Recurrent obsessions or compulsions which are a source of marked 
distress; or
    7. Recurrent and intrusive recollections of a traumatic experience, 
including dreams, which are a source of marked distress;

AND

    B. For older infants and toddlers (age 1 to attainment of age 3), 
resulting in at least one of the appropriate age-group criteria in 
paragraph B1 of 112.02; or, for children (age 3 to attainment of age 
18), resulting in at least two of the appropriate age-group criteria in 
paragraph B2 of 112.02.
    112.07  Somatoform, Eating, and Tic Disorders: Manifested by 
physical symptoms for which there are no demonstrable organic findings 
or known physiologic mechanisms; or eating or tic disorders with 
physical manifestations.
    The required level of severity for these disorders is met when the 
requirements in both A and B are satisfied.
    A. Medically documented findings of one of the following:
    1. An unrealistic fear and perception of fatness despite being 
underweight, and persistent refusal to maintain a body weight which is 
greater than 85 percent of the average weight for height and age, as 
shown in the most recent edition of the Nelson Textbook of Pediatrics, 
Richard E. Behrman and Victor C. Vaughan, III, editors, Philadelphia: W. 
B. Saunders Company; or
    2. Persistent and recurrent involuntary, repetitive, rapid, 
purposeless motor movements affecting multiple muscle groups with 
multiple vocal tics; or
    3. Persistent nonorganic disturbance of one of the following:
    a. Vision; or
    b. Speech; or
    c. Hearing; or
    d. Use of a limb; or
    e. Movement and its control (e.g., coordination disturbance, 
psychogenic seizures); or
    f. Sensation (diminished or heightened); or
    g. Digestion or elimination; or
    4. Preoccupation with a belief that one has a serious disease or 
injury;

AND

    B. For older infants and toddlers (age 1 to attainment of age 3), 
resulting in at least one of the appropriate age-group criteria in 
paragraph B1 of 112.02; or, for children (age 3 to attainment of age 
18), resulting in at least two of the appropriate age-group criteria in 
paragraph B2 of 112.02.
    112.08  Personality Disorders: Manifested by pervasive, inflexible, 
and maladaptive personality traits, which are typical of the child's 
long-term functioning and not limited to discrete episodes of illness.
    The required level of severity for these disorders is met when the 
requirements in both A and B are satisfied.
    A. Deeply ingrained, maladaptive patterns of behavior, associated 
with one of the following:
    1. Seclusiveness or autistic thinking; or
    2. Pathologically inappropriate suspiciousness or hostility; or
    3. Oddities of thought, perception, speech, and behavior; or
    4. Persistent disturbances of mood or affect; or
    5. Pathological dependence, passivity, or aggressiveness; or
    6. Intense and unstable interpersonal relationships and impulsive 
and exploitative behavior; or
    7. Pathological perfectionism and inflexibility;

AND

    B. For older infants and toddlers (age 1 to attainment of age 3), 
resulting in at least one of the appropriate age-group criteria in 
paragraph B1 of 112.02; or, for children (age 3 to attainment of age 
18), resulting in at least two of the appropriate age-group criteria in 
paragraph B2 of 112.02.
    112.09  Psychoactive Substance Dependence Disorders: Manifested by a 
cluster of cognitive, behavioral, and physiologic symptoms that indicate 
impaired control of psychoactive substance use with continued use of the 
substance despite adverse consequences.
    The required level of severity for these disorders is met when the 
requirements in both A and B are satisfied.
    A. Medically documented findings of at least four of the following:
    1. Substance taken in larger amounts or over a longer period than 
intended and a great deal of time is spent in recovering from its 
effects; or
    2. Two or more unsuccessful efforts to cut down or control use; or
    3. Frequent intoxication or withdrawal symptoms interfering with 
major role obligations; or
    4. Continued use despite persistent or recurring social, 
psychological, or physical problems; or
    5. Tolerance, as characterized by the requirement for markedly 
increased amounts of substance in order to achieve intoxication; or
    6. Substance taken to relieve or avoid withdrawal symptoms;

AND


[[Page 479]]


    B. For older infants and toddlers (age 1 to attainment of age 3), 
resulting in at least one of the appropriate age-group criteria in 
paragraph B1 of 112.02; or, for children (age 3 to attainment of age 
18), resulting in at least two of the appropriate age-group criteria in 
paragraph B2 of 112.02.
    112.10  Autistic Disorder and Other Pervasive Developmental 
Disorders: Characterized by qualitative deficits in the development of 
reciprocal social interaction, in the development of verbal and 
nonverbal communication skills, and in imaginative activity. Often, 
there is a markedly restricted repertoire of activities and interests, 
which frequently are stereotyped and repetitive.
    The required level of severity for these disorders is met when the 
requirements in both A and B are satisfied.
    A. Medically documented findings of the following:
    1. For autistic disorder, all of the following:
    a. Qualitative deficits in the development of reciprocal social 
interaction; and
    b. Qualitative deficits in verbal and nonverbal communication and in 
imaginative activity; and
    c. Markedly restricted repertoire of activities and interests;

OR

    2. For pervasive developmental disorders, both of the following:
    a. Qualitative deficits in the development of social interaction; 
and
    b. Qualitative deficits in verbal and nonverbal communication and in 
imaginative activity;

AND

    B. For older infants and toddlers (age 1 to attainment of age 3), 
resulting in at least one of the appropriate age-group criteria in 
paragraph B1 of 112.02; or, for children (age 3 to attainment of age 
18), resulting in at least two of the appropriate age-group criteria in 
paragraphs B2 of 112.02.
    112.11  Attention Deficit Hyperactivity Disorder: Manifested by 
developmentally inappropriate degrees of inattention, impulsiveness, and 
hyperactivity.
    The required level of severity for these disorders is met when the 
requirements in both A and B are satisfied.
    A. Medically documented findings of all three of the following:
    1. Marked inattention; and
    2. Marked impulsiveness; and
    3. Marked hyperactivity;

AND

    B. For older infants and toddlers (age 1 to attainment of age 3), 
resulting in at least one of the appropriate age-group criteria in 
paragraph B1 of 112.02; or, for children (age 3 to attainment of age 
18), resulting in at least two of the appropriate age-group criteria in 
paragraph B2 of 112.02.
    112.12  Developmental and Emotional Disorders of Newborn and Younger 
Infants (Birth to attainment of age 1): Developmental or emotional 
disorders of infancy are evidenced by a deficit or lag in the areas of 
motor, cognitive/communicative, or social functioning. These disorders 
may be related either to organic or to functional factors or to a 
combination of these factors.
    The required level of severity for these disorders is met when the 
requirements of A, B, C, D, or E are satisfied.
    A. Cognitive/communicative functioning generally acquired by 
children no more than one-half the child's chronological age, as 
documented by appropriate medical findings (e.g., in infants 0-6 months, 
markedly diminished variation in the production or imitation of sounds 
and severe feeding abnormality, such as problems with sucking 
swallowing, or chewing) including, if necessary, a standardized test;

OR

    B. Motor development generally acquired by children no more than 
one-half the child's chronological age, documented by appropriate 
medical findings, including if necessary, a standardized test;

OR

    C. Apathy, over-excitability, or fearfulness, demonstrated by an 
absent or grossly excessive response to one of the following:
    1. Visual stimulation; or
    2. Auditory stimulation; or
    3. Tactile stimulation;

OR

    D. Failure to sustain social interaction on an ongoing, reciprocal 
basis as evidenced by:
    1. Inability by 6 months to participate in vocal, visual, and 
motoric exchanges (including facial expressions); or
    2. Failure by 9 months to communicate basic emotional responses, 
such as cuddling or exhibiting protest or anger; or
    3. Failure to attend to the caregiver's voice or face or to explore 
an inanimate object for a period of time appropriate to the infant's 
age;

OR

    E. Attainment of development or function generally acquired by 
children no more than two-thirds of the child's chronological age in two 
or more areas (i.e., cognitive/communicative, motor, and social), 
documented by appropriate medical findings, including if necessary, 
standardized testing.

                 113.00  Neoplastic Diseases, Malignant

    A. Introduction. Determination of disability in the growing and 
developing child with a malignant neoplastic disease is based upon the 
combined effects of:

[[Page 480]]

    1. The pathophysiology, histology, and natural history of the tumor; 
and
    2. The effects of the currently employed aggressive multimodal 
therapeutic regimens.
    Combinations of surgery, radiation, and chemotherapy or prolonged 
therapeutic schedules impart significant additional morbidity to the 
child during the period of greatest risk from the tumor itself. This 
period of highest risk and greatest therapeutically-induced morbidity 
defines the limits of disability for most of childhood neoplastic 
disease.
    B. Documentation. The diagnosis of neoplasm should be established on 
the basis of symptoms, signs, and laboratory findings. The site of the 
primary, recurrent, and metastatic lesion must be specified in all cases 
of malignant neoplastic diseases. If an operative procedure has been 
performed, the evidence should include a copy of the operative note and 
the report of the gross and microscopic examination of the surgical 
specimen, along with all pertinent laboratory and X-ray reports. The 
evidence should also include a recent report directed especially at 
describing whether there is evidence of local or regional recurrence, 
soft part or skeletal metastases, and significant post therapeutic 
residuals.
    C. Malignant solid tumors, as listed under 113.03, include the 
histiocytosis syndromes except for solitary eosinophilic granuloma. 
Thus, 113.03 should not be used for evaluating brain tumors (see 111.05) 
or thyroid tumors, which must be evaluated on the basis of whether they 
are controlled by prescribed therapy.
    D. Duration of disability from malignant neoplastic tumors is 
included in 113.02 and 113.03. Following the time periods designated in 
these sections, a documented diagnosis itself is no longer sufficient to 
establish a severe impairment. The severity of a remaining impairment 
must be evaluated on the basis of the medical evidence.
    113.01  Category of Impairments, Neoplastic Diseases--Malignant
    113.02  Lymphoreticular malignant neoplasms.
    A. Hodgkin's disease with progressive disease not controlled by 
prescribed therapy; or
    B. Non-Hodgkin's lymphoma. Consider under a disability:
    1. For 2\1/2\ years from time of initial diagnosis; or
    2. For 2\1/2\ years from time of recurrence of active disease.
    113.03  Malignant solid tumors. Consider under a diability:
    A. For 2 years from the time of initial diagnosis; or
    B. For 2 years from the time of recurrence of active disease.
    113.04  Neuroblastoma. With one of the following:
    A. Extension across the midline; or
    B. Distant metastases; or
    C. Recurrence; or
    D. Onset at age 1 year or older.
    113.05  Retinoblastoma. With one of the following:
    A. Bilateral involvement; or
    B. Metastases; or
    C. Extension beyond the orbit; or
    D. Recurrence.

                          114.00  Immune System

    A. Listed disorders include impairments involving deficiency of one 
or more components of the immune system (i.e., antibody-producing B 
cells; a number of different types of cells associated with cell-
mediated immunity including T-lymphocytes, macrophages and monocytes; 
and components of the complement system).
    B. Dysregulation of the immune system may result in the development 
of a connective tissue disorder. Connective tissue disorders include 
several chronic multisystem disorders that differ in their clinical 
manifestation, course, and outcome. These disorders are described in 
part A, 14.00B.
    Some of the features of connective tissue disorders in children may 
differ from the features in adults. When the clinical features are the 
same as that seen in adults, the principles and concepts in part A, 
14.00B apply.
    The documentation needed to establish the existence of a connective 
tissue disorder is medical history, physical examination, selected 
laboratory studies, medically acceptable imaging techniques and, in some 
instances, tissue biopsy. However, the Social Security Administration 
will not purchase diagnostic tests or procedures that may involve 
significant risk, such as biopsies or angiograms. Generally, the 
existing medical evidence will contain this information.
    In addition to the limitations caused by the connective tissue 
disorder per se, the chronic adverse effects of treatment (e.g., 
corticosteroid-related ischemic necrosis of bone) may result in 
functional loss.
    A longitudinal clinical record of at least 3 months demonstrating 
active disease despite prescribed treatment during this period with the 
expectation that the disease will remain active for 12 months is 
necessary for assessment of severity and duration of impairment.
    In children the impairment may affect growth, development, 
attainment of age-appropriate skills, and performance of age-appropriate 
activities. The limitations may be the result of loss of function or 
failure in a single organ or body system, or a lesser degree of 
functional loss in two or more organs/body systems that, in combination 
with significant constitutional symptoms and signs of severe fatigue, 
fever, malaise, and weight loss, results in listing-level limitations. 
We use the term ``severe'' in these listings to describe medical 
severity; the term does not have the same meaning as it does when we

[[Page 481]]

use it in connection with a finding at the second step of the sequential 
evaluation processes in Secs. 404.1520, 416.920, and 416.924.
    C. Allergies, growth impairments and Kawasaki disease.
    1. Allergic disorders (e.g., asthma or atopic dermatitis) are 
discussed and evaluated under the appropriate listing of the affected 
body system.
    2. If growth is affected by the disorder or its treatment by 
immunosuppressive drugs, 100.00 may apply.
    3. Kawasaki disease, also known as mucocutaneous lymph node 
syndrome, is characterized by multisystem manifestations, but 
significant functional impairment is usually due to disease of the 
coronary arteries, which should be evaluated under 104.00.
    D. Human immunodeficiency virus (HIV) infection.
    1. HIV infection is caused by a specific retrovirus and may be 
characterized by susceptibility to one or more opportunistic diseases, 
cancers, or other conditions, as described in 114.08. Any child with HIV 
infection, including one with a diagnosis of acquired immunodeficiency 
syndrome (AIDS), may be found disabled under this listing if his or her 
impairment meets any of the criteria in 114.08 or is of equivalent 
severity to an impairment in 114.08.
    2. Definitions. In 114.08, the terms ``resistant to treatment,'' 
``recurrent,'' and ``disseminated'' have the same general meaning as 
used by the medical community. The precise meaning of any of these terms 
will depend upon the specific disease or condition in question, the body 
system affected, the usual course of the disorder and its treatment, and 
the other circumstances of the case.
    ``Resistant to treatment'' means that a condition did not respond 
adequately to an appropriate course of treatment. Whether a response is 
adequate, or a course of treatment appropriate, will depend on the facts 
of the particular case.
    ``Recurrent'' means that a condition that responded adequately to an 
appropriate course of treatment has returned after a period of remission 
or regression. The extent of response (or remission) and the time 
periods involved will depend on the facts of the particular case.
    ``Disseminated'' means that a condition is spread widely over a 
considerable area or body system(s). The type and extent of the spread 
will depend on the specific disease.
    3. Documentation of HIV infection in children. The medical evidence 
must include documentation of HIV infection. Documentation may be by 
laboratory evidence or by other generally acceptable methods consistent 
with the prevailing state of medical knowledge and clinical practice.
    a. Documentation of HIV infection in children by definitive 
diagnosis. A definitive diagnosis of HIV infection in children is 
documented by one or more of the following laboratory tests:
    i. For a child 24 months of age or older, a serum specimen that 
contains HIV antibodies. HIV antibodies are usually detected by a 
screening test. The most commonly used screening test is the ELISA. 
Although this test is highly sensitive, it may yield false positive 
results. Therefore, positive results from an ELISA must be confirmed by 
a more definitive test (e.g., Western blot, immunofluorescence assay). 
(See paragraph b, below, for information about HIV antibody testing in 
children younger than 24 months of age).
    ii. A specimen that contains HIV antigen (e.g., serum specimen, 
lymphocyte culture, or cerebrospinal fluid (CSF) specimen).
    iii. An immunoglobulin A (IgA) serological assay specific for HIV.
    iv. Other test(s) that are highly specific for detection of HIV in 
children (e.g., polymerase chain reaction (PCR)), or that are acceptable 
methods of detection consistent with the prevailing state of medical 
knowledge.
    When laboratory testing for HIV infection has been performed, every 
reasonable effort must be made to obtain reports of the results of that 
testing.
    b. Other acceptable documentation of HIV infection in children.
    As noted in paragraph a, above, HIV infection is not documented in 
children under 24 months of age by a serum specimen containing HIV 
antibodies. This is because women with HIV infection often transfer HIV 
antibodies to their newborns. The mother's antibodies can persist in the 
infant for up to 24 months, even if the infant is not HIV-infected. Only 
20 to 30 percent of such infants are actually infected. Therefore, the 
presence of serum HIV antibodies alone does not establish the presence 
of HIV infection in a child under 24 months of age. However, the 
presence of HIV antibodies accompanied by evidence of significantly 
depressed T-helper lymphocytes (CD4), an abnormal CD4/CD8 ratio, or 
abnormal immunoglobulin G (IgG) may be used to document HIV infection in 
a child under 24 months of age, even though such testing is not a basis 
for a definitive diagnosis.
    For children from birth to the attainment of 24 months of age who 
have tested positive for HIV antibodies (see D3a above), HIV infection 
may be documented by one or more of the following:
    i. For an infant 12 months of age or less, a CD4 (T4) count of 1500/
mm\3\ or less, or a CD4 count less than or equal to 20 percent of total 
lymphocytes.
    ii. For an infant from 12 to 24 months of age, a CD4 (T4) count of 
750/mm\3\ or less, or

[[Page 482]]

a CD4 count less than or equal to 20 percent of total lymphocytes.
    iii. An abnormal CD4/CD8 ratio.
    iv. An IgG significantly greater than or less than the normal range 
for age.
    HIV infection in children may also be documented without the 
definitive laboratory evidence described in paragraph a, or the other 
laboratory evidence discussed above, provided that such documentation is 
consistent with the prevailing state of medical knowledge and clinical 
practice and is consistent with the other evidence. If such laboratory 
evidence is not available, HIV infection may be documented by the 
medical history, clinical and laboratory findings, and diagnosis(es) 
indicated in the medical evidence. For example, a diagnosis of HIV 
infection in children will be accepted without definitive laboratory 
evidence if the child has an opportunistic disease (e.g., Pneumocystis 
carinii pneumonia (PCP)) predictive of a defect in cell-mediated 
immunity, and there is no other known cause of diminished resistance to 
that disease (e.g., long-term steroid treatment, lymphoma). In such 
cases, every reasonable effort must be made to obtain full details of 
the history, medical findings, and results of testing.
    4. Documentation of the manifestations of HIV infection in children. 
The medical evidence must also include documentation of the 
manifestations of HIV infection in children. Documentation may be by 
laboratory evidence or by other generally acceptable methods consistent 
with the prevailing state of medical knowledge and clinical practice.
    a. Documentation of the manifestations of HIV infection in children 
by definitive diagnosis.
    The definitive method of diagnosing opportunistic diseases or 
conditions that are manifestations of HIV infection in children is by 
culture, serological test, or microscopic examination of biopsied tissue 
or other material (e.g., bronchial washings). Therefore, every 
reasonable effort must be made to obtain specific laboratory evidence of 
an opportunistic disease or other condition whenever this information is 
available. If a histological or other test has been performed, the 
evidence should include a copy of the appropriate report. If the report 
is not obtainable, the summary of hospitalization or a report from the 
treating source should include details of the findings and results of 
the diagnostic studies (including radiographic studies) or microscopic 
examination of the appropriate tissues or body fluids.
    Although a reduced CD4 lymphocyte count in a child may show that 
there is an increased susceptibility to opportunistic infections and 
diseases, that alone does not document the presence, severity, or 
functional effects of a manifestation of HIV infection in a child.
    b. Other acceptable documentation of the manifestations of HIV 
infection in children.
    Manifestations of HIV infection in children may also be documented 
without the definitive laboratory evidence described in paragraph a, 
provided that such documentation is consistent with the prevailing state 
of medical knowledge and clinical practice and is consistent with the 
other evidence. If no definitive laboratory evidence is available, 
manifestations of HIV infection may be documented by medical history, 
clinical and laboratory findings, and diagnosis(es) indicated in the 
medical evidence. In such cases, every reasonable effort must be made to 
obtain full details of the history, medical findings, and results of 
testing.
    Documentation of cytomegalovirus (CMV) disease (114.08D) presents 
special problems because diagnosis requires identification of viral 
inclusion bodies or a positive culture from the affected organ, and the 
absence of any other infectious agent. A positive serology test 
identifies infection with the virus, but does not confirm a disease 
process. With the exception of chorioretinitis (which may be diagnosed 
by an ophthalmologist), documentation of CMV disease requires 
confirmation by biopsy or other generally acceptable methods consistent 
with the prevailing state of medical knowledge and clinical practice.
    5. HIV infection in children. The clinical manifestation and course 
of disease in children who become infected with HIV perinatally or in 
the first 6 years of life may differ from that in older children and 
adults. In addition, survival times are shorter for children infected in 
the first year of life compared to those who become infected as older 
children or as adults. Infants may present with failure to thrive or 
pneumocystis carinii pneumonia (PCP); young children may present with 
recurrent infections, neurological problems, or developmental 
abnormalities. Older children may also exhibit neurological 
abnormalities, such as HIV encephalopathy, or failure to thrive.
    The methods of identifying and evaluating neurological abnormalities 
may vary depending on a child's age. For example, in an infant, impaired 
brain growth can be documented by a decrease in the growth rate of the 
head. In older children, impaired brain growth can be documented by 
brain atrophy on a CAT scan. Neurological abnormalities can also be 
observed in a younger child in the loss of previously acquired, or 
marked delays in achieving, developmental milestones. In an older child, 
this type of neurological abnormality would generally be demonstrated by 
the loss of previously acquired intellectual abilities. Although loss of 
previously acquired intellectual abilities can be documented by a 
decrease in intelligence quotient (IQ) scores or demonstrated if a child 
forgets information he or she previously learned, it can also be shown 
if the

[[Page 483]]

child is unable to learn new information. This could include the sudden 
acquisition of a new learning disability.
    Children with HIV infection may contract any of a broad range of 
bacterial infections. Certain major infections caused by pyogenic 
bacteria, e.g., some pneumonias, can be severely limiting, especially in 
pre-adolescent children. These major bacterial infections should be 
evaluated under 114.08A5, which requires two or more such infections 
within a 2-year period. Although 114.08A5 applies only to children less 
than 13 years of age, an older child may be found to have an impairment 
of equivalent severity if the circumstances of the case warrant (e.g., 
delayed puberty).
    Otherwise, bacterial infections are evaluated under 114.08A6. The 
criteria of the listing are met if one or more bacterial infection(s) 
occurs and requires hospitalization or intravenous antibiotic treatment 
3 or more times in 1 year. Pelvic inflammatory disease in older female 
children should be evaluated under multiple or recurrent bacterial 
infections (114.08A6).
    6. Evaluation of HIV infection in children. The criteria in 114.08 
do not describe the full spectrum of diseases or conditions manifested 
by children with HIV infection. As in any case, consideration must be 
given to whether a child's impairment(s) meets, medically equals, or 
functionally equals the severity of any other listing in appendix 1 of 
subpart P; e.g., a neoplastic disorder listed in 113.00ff. (See 
Secs. 404.1526, 416.926, and 416.926a.) Although 114.08 includes cross-
references to other listings for the more common manifestations of HIV 
infection, additional listings may also apply.
    In addition, the impact of all impairments, whether or not related 
to the HIV infection, must be considered. Children with HIV infection 
may manifest signs and symptoms of a mental impairment (e.g., anxiety, 
depression), or of another physical impairment. Medical evidence should 
include documentation of all physical and mental impairments and the 
impairment(s) should be evaluated not only under the relevant listing(s) 
in 114.08, but under any other appropriate listing(s).
    It is also important to remember that children with HIV infection, 
like all others, are evaluated under the full sequential evaluation 
process described in Sec. 416.924. If a child with HIV infection is 
working and engaging in substantial gainful activity (SGA), or does not 
have a severe impairment, the case will be decided at the first or 
second step of the sequential evaluation process, and does not require 
evaluation under these listings. For a child with HIV infection who is 
not engaging in SGA and has a severe impairment, but whose impairment(s) 
does not meet the criteria of a listing, consideration will be given to 
whether the child's impairment or combination of impairments is either 
medically or functionally equivalent in severity to any listed 
impairment.
    7. Effect of treatment. Medical treatment must be considered in 
terms of its effectiveness in ameliorating the signs, symptoms, and 
laboratory abnormalities of the specific disorder, or of the HIV 
infection itself (e.g. antiretroviral agents) and in terms of any side 
effects of treatment that may further impair the child.
    Response to treatment and adverse or beneficial consequences of 
treatment may vary widely. For example, a child with HIV infection who 
develops otitis media may respond to the same antibiotic regimen used in 
treating children without HIV infection, but another child with HIV 
infection may not respond to the same regimen. Therefore, each case must 
be considered on an individual basis, along with the effects of 
treatment on the child's ability to function.
    A specific description of the drugs or treatment given (including 
surgery), dosage, frequency of administration, and a description of the 
complications or response to treatment should be obtained. The effects 
of treatment may be temporary or long-term. As such, the decision 
regarding the impact of treatment should be based on a sufficient period 
of treatment to permit proper consideration.
    8. Functional criteria. Paragraph O of 114.08 establishes standards 
for evaluating manifestations of HIV infection that do not meet the 
requirements listed in 114.08A-N. Paragraph O is applicable for 
manifestations that are not listed in 114.08A-N, as well as those listed 
in 114.08A-N that do not meet the criteria of any of the rules in 
114.08A-N.
    For children with HIV infection evaluated under 114.08O, listing-
level severity will be assessed in terms of the functional limitations 
imposed by the impairment. The full impact of signs, symptoms, and 
laboratory findings on the child's ability to function must be 
considered. Important factors to be considered in evaluating the 
functioning of children with HIV infection include, but are not limited 
to: symptoms, such as fatigue and pain; characteristics of the illness, 
such as the frequency and duration of manifestations or periods of 
exacerbation and remission in the disease course; and the functional 
impact of treatment for the disease, including the side effects of 
medication.
    To meet the criteria in 114.08O, a child with HIV infection must 
demonstrate a level of restriction in either one or two (depending on 
the child's age) of the general areas of functioning applicable to the 
child's age group. (See 112.00C for additional discussion of these areas 
of functioning).

[[Page 484]]

             114.01  Category of Impairments, Immune System

    114.02  Systemic lupus erythematosus. Documented as described in 
14.00B1 and 114.00B, with:
    A. One of the following:
    1. Growth impairment, as described under the criteria in 100.00ff; 
or
    2. Musculoskeletal involvement, as described under the criteria in 
101.00ff; or
    3. Muscle involvement, as described under the criteria in 14.05; or
    4. Ocular involvement, as described under the criteria in 102.00ff; 
or
    5. Respiratory involvement, as described under the criteria in 
103.00ff; or
    6. Cardiovascular involvement, as described under the criteria in 
104.00ff or 14.04D; or
    7. Digestive involvement, as described under the criteria in 
105.00ff; or
    8. Renal involvement, as described under the criteria in 106.00ff; 
or
    9. Hematologic involvement, as described under the criteria in 
107.00ff; or
    10. Skin involvement, as described under the criteria in 8.00ff; or
    11. Endocrine involvement, as described under the criteria in 
109.00ff; or
    12. Neurological involvement, as described under the criteria in 
111.00ff; or
    13. Mental involvement, as described under the criteria in 112.00ff.

or

    B. Lesser involvement of two or more organs/body systems listed in 
paragraph A, with significant, documented, constitutional symptoms and 
signs of severe fatigue, fever, malaise, and weight loss. At least one 
of the organs/body systems must be involved to at least a moderate level 
of severity.
    114.03  Systemic vasculitis. As described under the criteria in 
14.03 or, if growth impairment, as described under the criteria in 
100.00ff.
    114.04  Systemic sclerosis and scleroderma. Documented as described 
in 14.00B3 and 114.00B, and:
    A. As described under the criteria in 14.04 or, if growth 
impairment, as described under the criteria in 100.00ff.

or

    B. Linear scleroderma, with one of the following:
    1. Fixed valgus or varus deformities of both hands or both feet; or
    2. Marked destruction or marked atrophy of an extremity; or
    3. Facial disfigurement from hypoplasia of the mandible, maxilla, or 
zygoma resulting in an impairment as described under the criteria in 
112.00ff; or
    4. Seizure disorder, as described under the criteria in 111.00ff.
    114.05  Polymyositis or dermatomyositis. Documented as described in 
14.00B4 and 114.00B, and:
    A. As described under the criteria in 14.05.

or

    B. With one of the following:
    1. Multiple joint contractures; or
    2. Diffuse cutaneous calcification with formation of an exoskeleton; 
or
    3. Systemic vasculitis as described under the criteria in 14.03.
    114.06  Undifferentiated connective tissue disorder. As described 
under the criteria in 114.02 or 114.04.
    114.07  Congenital immune deficiency disease.
    A. Hypogammaglobulinemia or dysgammaglobulinemia, with:
    1. Documented, recurrent severe infections occurring 3 or more times 
within a 5-month period; or
    2. An associated disorder such as growth retardation, chronic lung 
disease, collagen disorder or tumor. Evaluate according to the 
appropriate body system listing.

or

    B. Thymic dysplastic syndromes (such as Swiss, diGeorge).
    114.08  Human immunodeficiency virus (HIV) infection. With 
documentation as described in 114.00D3 and one of the following:
    A. Bacterial infections:
    1. Mycobacterial infection (e.g., caused by M. avium-intracellulare, 
M. kansasii, or M. tuberculosis) at a site other than the lungs, skin, 
or cervical or hilar lymph nodes; or pulmonary tuberculosis resistant to 
treatment; or
    2. Nocardiosis; or
    3. Salmonella bacteremia, recurrent non-typhoid.
    4. Syphilis or neurosyphilis--evaluate sequelae under the criteria 
for the affected body system (e.g., 102.00 Special Senses and Speech, 
104.00 Cardiovascular System, 111.00 Neurological); or
    5. In a child less than 13 years of age, multiple or recurrent 
pyogenic bacterial infection(s) of the following types: sepsis, 
pneumonia, meningitis, bone or joint infection, or abscess of an 
internal organ or body cavity (excluding otitis media or superficial 
skin or mucosal abscesses) occurring 2 or more times in 2 years; or
    6. Other multiple or recurrent bacterial infection(s), including 
pelvic inflammatory disease, requiring hospitalization or intravenous 
antibiotic treatment 3 or more times in 1 year.

or

    B. Fungal infections:
    1. Aspergillosis; or
    2. Candidiasis, at a site other than the skin, urinary tract, 
intestinal tract, or oral or vulvovaginal mucous membranes; or 
candidiasis involving the esophagus, trachea, bronchi, or lungs; or

[[Page 485]]

    3. Coccidioidomycosis, at a site other than the lungs or lymph 
nodes; or
    4. Cryptococcosis, at a site other than the lungs (e.g., 
cryptococcal meningitis); or
    5. Histoplasmosis, at a site other than the lungs or lymph nodes; or
    6. Mucormycosis.

or

    C. Protozoan or helminthic infections:
    1. Cryptosporidiosis, isosporiasis, or microsporidiosis, with 
diarrhea lasting for 1 month or longer; or
    2. Pneumocystis carinii pneumonia or extrapulmonary pneumocystis 
carinii infection; or
    3. Strongyloidiasis, extra-intestinal; or
    4. Toxoplasmosis of an organ other than the liver, spleen, or lymph 
nodes.

or

    D. Viral infections:
    1. Cytomegalovirus disease (documented as described in 114.00D4b) at 
a site other than the liver, spleen, or lymph nodes; or
    2. Herpes simplex virus causing:
    a. Mucocutaneous infection (e.g., oral, genital, perianal) lasting 
for 1 month or longer; or
    b. Infection at a site other than the skin or mucous membranes 
(e.g., bronchitis, pneumonitis, esophagitis, or encephalitis); or
    c. Disseminated infection; or
    3. Herpes zoster, either disseminated or with multidermatomal 
eruptions that are resistant to treatment; or
    4. Progressive multifocal leukoencephalopathy; or
    5. Hepatitis, as described under the criteria of 105.05.

or

    E. Malignant neoplasms:
    1. Carcinoma of the cervix, invasive, FIGO stage II and beyond; or
    2. Karposi's sarcoma with:
    a. Extensive oral lesions; or
    b. Involvement of the gastrointestinal tract, lungs, or other 
visceral organs; or
    c. Involvement of the skin or mucous membranes as described under 
the criteria of 114.08F; or
    3. Lymphoma (e.g., primary lymphoma of the brain, Burkitt's 
lymphoma, immunoblastic sarcoma, other Non-Hodgkin's lymphoma, Hodgkin's 
disease); or
    4. Squamous cell carcinoma of the anus.

or

    F. Conditions of the skin or mucous membranes (other than described 
in B2, D2, or D3 above) with extensive fungating or ulcerating lesions 
not responding to treatment (e.g., dermatological conditions such as 
eczema or psoriasis, vulvovaginal or other mucosal candida, condyloma 
caused by human papillomavirus, genital ulcerative disease), or evaluate 
under the criteria in 8.00ff.

or

    G. Hematologic abnormalities:
    1. Anemia, as described under the criteria in 7.02; or
    2. Granulocytopenia, as described under the criteria in 7.15; or
    3. Thrombocytopenia, as described under the criteria of 107.06 or 
7.06.

or

    H. Neurological manifestations of HIV infection (e.g., HIV 
encephalopathy, peripheral neuropathy), as described under the criteria 
in 111.00ff, or resulting in one or more of the following:
    1. Loss of previously acquired, or marked delay in achieving, 
developmental milestones or intellectual ability (including the sudden 
acquisition of a new learning disability); or
    2. Impaired brain growth (acquired microcephaly or brain atrophy--
see 114.00D5); or
    3. Progressive motor dysfunction affecting gait and station or fine 
and gross motor skills.

or

    I. Growth disturbance, with:
    1. An involuntary weight loss (or failure to gain weight at an 
appropriate rate for age) resulting in a fall of 15 percentiles from 
established growth curve (on standard growth charts) that persists for 2 
months or longer; or
    2. An involuntary weight loss (or failure to gain weight at an 
appropriate rate for age) resulting in a fall to below the third 
percentile from established growth curve (on standard growth charts) 
that persists for 2 months or longer; or
    3. Involuntary weight loss greater than 10 percent of baseline that 
persists for 2 months or longer; or
    4. Growth impairment as described under the criteria in 100.00ff.

or

    J. Diarrhea, lasting for 1 month or longer, resistant to treatment, 
and requiring intravenous hydration, intravenous alimentation, or tube 
feeding.

or

    K. Cardiomyopathy, as described under the criteria in 104.00ff or 
11.04.

or

    L. Lymphoid interstitial pneumonia/pulmonary lymphoid hyperplasia 
(LIP/PLH complex), with respiratory symptoms that significantly 
interfere with age-appropriate activities, and that cannot be controlled 
by prescribed treatment.

or


[[Page 486]]


    M. Nephropathy, as described under the criteria in 106.00.

or

    N. One or more of the following infections (other than described in 
A-M, above), resistant to treatment or requiring hospitalization or 
intravenous treatment 3 or more times in 1 year (or evaluate sequelae 
under the criteria for the affected body system):
    1. Sepsis;
    2. Meningitis; or
    3. Pneumonia; or
    4. Septic arthritis; or
    5. Endocarditis; or
    6. Radiographically documented sinusitis.

or

    O. Any other manifestation(s) of HIV infection (including any listed 
in 114.08A-N, but without the requisite findings, e.g., oral candidiasis 
not meeting the criteria in 114.08F, diarrhea not meeting the criteria 
in 114.08J, or any other manifestation(s), e.g., oral hairy leukoplakia, 
hepatomegaly), resulting in one of the following:
    1. For children from birth to attainment of age 1, at least one of 
the criteria in paragraphs A-E of 112.12; or
    2. For children age 1 to attainment of age 3, at least one of the 
appropriate age-group criteria in paragraph B1 of 112.02; or
    3. For children age 3 to attainment of age 18, at least two of the 
appropriate age-group criteria in paragraph B2 of 112.02.

[50 FR 35066, Aug. 28, 1985]

    Editorial Note:  For Federal Register citations affecting appendix 1 
to subpart P of part 404, see the List of CFR Sections Affected in the 
Finding Aids section of this volume.

    Effective Date Note 1:  At 62 FR 6418, Feb. 11, 1997, part B of 
appendix 1 (Listing of Impairments) of subpart P to part 404 was amended 
by revising the third sentence of the second undesignated paragraph of 
103.00A, the fourth undesignated paragraph of 103.00A, the fourth 
sentence of the fifth undesignated paragraph of 104.00A, the sixth 
undesignated paragraph of 104.00A, the last sentence of the last 
undesignated paragraph of 104.00C, the first three sentences of the 
eighth undesignated paragraph of 112.00A, the third sentence of the 
first paragraph of 112.00C, the first sentence of 112.00C2. introductory 
text 112.00C2.b., 112.00C2.c., the heading of 112.00C2.d., 112.00C4 and 
the undesignated paragraph under it, 112.02B2.c. introductory text, and 
114.00D6, and removing the last sentence of the second undesignated 
paragraph under 114.00D6, effective Apr. 14, 1997. For the convenience 
of the user, the superseded text is set forth as follows:

             Appendix 1 to Subpart P--Listing of Impairments

                                * * * * *

                                 Part B

                                * * * * *

                       103.00  Respiratory System

    A. * * *

                                * * * * *

    * * * Even if a child does not show that his or her impairment meets 
the criteria of these listings, the child may have an impairment(s) 
equivalent in severity to one of the listed impairments or be disabled 
because of a substantial reduction in the ability to function 
independently, appropriately, and effectively in an age-appropriate 
manner. * * *

                                * * * * *

    It must be remembered that these listings are only examples of 
common respiratory disorders that are severe enough to prevent a child 
from functioning independently, appropriately, and effectively in an 
age-appropriate manner. When a child has a medically determinable 
impairment that is not listed, an impairment which does not meet a 
listing, or a combination of impairments no one of which meets a 
listing, we may make an equivalence determination on medical or 
functional grounds. Also, with respect to children claiming SSI benefits 
under title XVI of the Act who have an impairment(s) with a level of 
severity which does not meet or equal (medically or functionally) the 
criteria of the listings, we will determine whether the impairment(s) is 
of comparable severity to one that would disable an adult. In these 
cases, we will perform an individualized functional assessment to 
determine whether the child is disabled.

                                * * * * *

                      104.00  Cardiovascular System

                             A. Introduction

                                * * * * *

    * * * Even though a child who does not receive treatment may not be 
able to show an impairment that meets the criteria of these listings, 
the child may have an impairment(s) equivalent in severity to one of the 
listed impairments or be disabled because of a substantial reduction in 
the ability to

[[Page 487]]

function independently, appropriately, and effectively in an age-
appropriate manner.
    Indeed, it must be remembered that these listings are only examples 
of common cardiovascular disorders that are severe enough to prevent a 
child from functioning independently, appropriately, and effectively in 
an age-appropriate manner. When a child has a medically determinable 
impairment that is not listed, or a combination of impairments no one of 
which meets a listing, we will make an equivalence determination. Also, 
with respect to children claiming SSI benefits under title XVI of the 
Act who have an impairment(s) with a level of severity which does not 
meet or equal the criteria of the cardiovascular listings, we will 
determine whether the impairment(s) is of comparable severity to one 
that would disable an adult. In these cases, an individualized 
functional assessment is crucial to the evaluation of a child's ability 
to function independently, appropriately, and effectively in an age-
appropriate manner when the impairment(s) is severe but the criteria of 
these listings are not met or equaled.

                                * * * * *

    C. Treatment and Relationship Status

                                * * * * *

    * * * (See Secs. 416.994a, 404.1594, or 416.994, as appropriate, for 
our rules on medical improvement and whether an individual is no longer 
disabled.)

                                * * * * *

                        112.00  Mental Disorders

                                * * * * *

    It must be remembered that these listings are examples of common 
mental disorders which are severe enough to find a child disabled. When 
a child has a medically determinable impairment that is not listed or a 
combination of impairments no one of which meets a listing, we will make 
a medical equivalency determination. (See Secs. 404.1526 and 416.926.) * 
* *

                                * * * * *

    C.* * * The functional areas that we consider are: Motor function; 
cognitive/communicative function; social function; personal/behavioral 
function; and concentration, persistence, and pace. * * *
    1.* * * 
    2. Preschool children (age 3 to attainment of age 6). For the age 
groups including preschool children through adolescence, the functional 
areas used to measure severity are: (a) Cognitive/communicative 
function, (b) social function, (c) personal/behavioral function, and (d) 
deficiencies of concentration, persistence, or pace resulting in 
frequent failure to complete tasks in a timely manner. * * *
    a.* * * 
    b. Social function. Social function is measured by an assessment of 
a child's relationships with parents, other adults, and peers. These 
relationships are often observed not only at home but also in preschool 
programs, where the child's interactions with other children and 
teachers come under daily scrutiny.
    c. Personal/behavioral function. This function may be measured by a 
standardized test of adaptive behavior or by careful description of 
maladaptive or avoidant behaviors. These behaviors are often observed 
not only at home but also in preschool programs.
    d. Concentration, persistence, and pace.* * * 

                                * * * * *

    4. Adolescents (age 12 to attainment of age 18). Functional criteria 
parallel to those for primary school children (cognitive/communicative; 
social; personal/behavioral; and concentration, persistence, and pace) 
are the measure of severity for this age group. Testing instruments 
appropriate to adolescents should be used where indicated. Comparable 
findings of disruption of social function must consider the capacity to 
form appropriate, stable, and lasting relationships. If information is 
available about cooperative working relationships in school or at part-
time or full-time work, or about the ability to work as a member of a 
group, it should be considered when assessing the child's social and 
personal/behavioral functioning. Markedly impoverished social contact, 
isolation, withdrawal, and inappropriate or bizarre behavior under the 
stress of socializing with others also constitute comparable findings.
    In adolescents, the intent of the functional criterion described in 
paragraph B2d is the same as in primary school children. However, other 
evidence of this functional impairment may also be available, such as 
from evidence of the child's performance in work or work-like settings.

                                * * * * *

    112.01  Category of Impairments, Mental
    112.02 Organic Mental Disorders: * * *
    B.* * * 

                                * * * * *

    2.* * * 
    c. Marked impairment in personal/behavioral function, as evidenced 
by:

[[Page 488]]

    (1) Marked restriction of age-appropriate activities of daily 
living, documented by history and medical findings (including 
consideration of information from parents or other individuals who have 
knowledge of the child, when such information is needed and available) 
and including, if necessary, appropriate standardized tests; or
    (2) Persistent serious maladaptive behaviors destructive to self, 
others, animals, or property, requiring protective intervention; or

                          114.00  Immune System

                                * * * * *

    D.* * * 
    6. Evaluation of HIV infection in children. The criteria in 114.08 
do not describe the full spectrum of diseases or conditions manifested 
by children with HIV infection. As in any case, consideration must be 
given to whether a child's impairment(s) meets or equals in severity any 
other listing in appendix 1 of subpart P (e.g., a neoplastic disorder 
listed in 113.00ff). Although 114.08 includes cross-references to other 
listings for the more common manifestations of HIV infection, additional 
listings may also apply.

                                * * * * *

    * * * If the child's impairment or impairments do not meet or equal 
a listing in severity, evaluation must proceed through the final step(s) 
of the sequential evaluation process (or, as appropriate, the steps in 
the medical improvement review standard) before any conclusion can be 
reached on the issue of disability.

                                * * * * *

    Effective Date Note 2: At 62 FR 13733, Mar. 21, 1997, in appendix 1 
to subpart P, in 112.00C4, the word ``measure'' was corrected to read 
``measures'', effective Apr. 14, 1997.

         Appendix 2 to Subpart P--Medical-Vocational Guidelines

Sec.
200.00  Introduction.
201.00  Maximum sustained work capability limited to sedentary work as a 
          result of severe medically determinable impairment(s).
202.00  Maximum sustained work capability limited to light work as a 
          result of severe medically determinable impairment(s).
203.00  Maximum sustained work capability limited to medium work as a 
          result of severe medically determinable impairment(s).
204.00  Maximum sustained work capability limited to heavy work (or very 
          heavy work) as a result of severe medically determinable 
          impairment(s).
    200.00  Introduction. (a) The following rules reflect the major 
functional and vocational patterns which are encountered in cases which 
cannot be evaluated on medical considerations alone, where an individual 
with a severe medically determinable physical or mental impairment(s) is 
not engaging in substantial gainful activity and the individual's 
impairment(s) prevents the performance of his or her vocationally 
relevant past work. They also reflect the analysis of the various 
vocational factors (i.e., age, education, and work experience) in 
combination with the individual's residual functional capacity (used to 
determine his or her maximum sustained work capability for sedentary, 
light, medium, heavy, or very heavy work) in evaluating the individual's 
ability to engage in substantial gainful activity in other than his or 
her vocationally relevant past work. Where the findings of fact made 
with respect to a particular individual's vocational factors and 
residual functional capacity coincide with all of the criteria of a 
particular rule, the rule directs a conclusion as to whether the 
individual is or is not disabled. However, each of these findings of 
fact is subject to rebuttal and the individual may present evidence to 
refute such findings. Where any one of the findings of fact does not 
coincide with the corresponding criterion of a rule, the rule does not 
apply in that particular case and, accordingly, does not direct a 
conclusion of disabled or not disabled. In any instance where a rule 
does not apply, full consideration must be given to all of the relevant 
facts of the case in accordance with the definitions and discussions of 
each factor in the appropriate sections of the regulations.
    (b) The existence of jobs in the national economy is reflected in 
the ``Decisions'' shown in the rules; i.e., in promulgating the rules, 
administrative notice has been taken of the numbers of unskilled jobs 
that exist throughout the national economy at the various functional 
levels (sedentary, light, medium, heavy, and very heavy) as supported by 
the ``Dictionary of Occupational Titles'' and the ``Occupational Outlook 
Handbook,'' published by the Department of Labor; the ``County Business 
Patterns'' and ``Census Surveys'' published by the Bureau of the Census; 
and occupational surveys of light and sedentary jobs prepared for the 
Social Security Administration by various State employment agencies. 
Thus, when all factors coincide with the criteria of a rule, the 
existence of such jobs is established. However, the existence of such 
jobs for individuals whose remaining functional capacity or other 
factors do not coincide with the criteria of a rule must be further 
considered in terms of

[[Page 489]]

what kinds of jobs or types of work may be either additionally indicated 
or precluded.
    (c) In the application of the rules, the individual's residual 
functional capacity (i.e., the maximum degree to which the individual 
retains the capacity for sustained performance of the physical-mental 
requirements of jobs), age, education, and work experience must first be 
determined. When assessing the person's residual functional capacity, we 
consider his or her symptoms (such as pain), signs, and laboratory 
findings together with other evidence we obtain.
    (d) The correct disability decision (i.e., on the issue of ability 
to engage in substantial gainful activity) is found by then locating the 
individual's specific vocational profile. If an individual's specific 
profile is not listed within this appendix 2, a conclusion of disabled 
or not disabled is not directed. Thus, for example, an individual's 
ability to engage in substantial gainful work where his or her residual 
functional capacity falls between the ranges of work indicated in the 
rules (e.g., the individual who can perform more than light but less 
than medium work), is decided on the basis of the principles and 
definitions in the regulations, giving consideration to the rules for 
specific case situations in this appendix 2. These rules represent 
various combinations of exertional capabilities, age, education and work 
experience and also provide an overall structure for evaluation of those 
cases in which the judgments as to each factor do not coincide with 
those of any specific rule. Thus, when the necessary judgments have been 
made as to each factor and it is found that no specific rule applies, 
the rules still provide guidance for decisionmaking, such as in cases 
involving combinations of impairments. For example, if strength 
limitations resulting from an individual's impairment(s) considered with 
the judgments made as to the individual's age, education and work 
experience correspond to (or closely approximate) the factors of a 
particular rule, the adjudicator then has a frame of reference for 
considering the jobs or types of work precluded by other, nonexertional 
impairments in terms of numbers of jobs remaining for a particular 
individual.
    (e) Since the rules are predicated on an individual's having an 
impairment which manifests itself by limitations in meeting the strength 
requirements of jobs, they may not be fully applicable where the nature 
of an individual's impairment does not result in such limitations, e.g., 
certain mental, sensory, or skin impairments. In addition, some 
impairments may result solely in postural and manipulative limitations 
or environmental restrictions. Environmental restrictions are those 
restrictions which result in inability to tolerate some physical 
feature(s) of work settings that occur in certain industries or types of 
work, e.g., an inability to tolerate dust or fumes.
    (1) In the evaluation of disability where the individual has solely 
a nonexertional type of impairment, determination as to whether 
disability exists shall be based on the principles in the appropriate 
sections of the regulations, giving consideration to the rules for 
specific case situations in this appendix 2. The rules do not direct 
factual conclusions of disabled or not disabled for individuals with 
solely nonexertional types of impairments.
    (2) However, where an individual has an impairment or combination of 
impairments resulting in both strength limitations and nonexertional 
limitations, the rules in this subpart are considered in determining 
first whether a finding of disabled may be possible based on the 
strength limitations alone and, if not, the rule(s) reflecting the 
individual's maximum residual strength capabilities, age, education, and 
work experience provide a framework for consideration of how much the 
individual's work capability is further diminished in terms of any types 
of jobs that would be contraindicated by the nonexertional limitations. 
Also, in these combinations of nonexertional and exertional limitations 
which cannot be wholly determined under the rules in this appendix 2, 
full consideration must be given to all of the relevant facts in the 
case in accordance with the definitions and discussions of each factor 
in the appropriate sections of the regulations, which will provide 
insight into the adjudicative weight to be accorded each factor.
    201.00  Maximum sustained work capability limited to sedentary work 
as a result of severe medically determinable impairment(s). (a) Most 
sedentary occupations fall within the skilled, semi-skilled, 
professional, administrative, technical, clerical, and benchwork 
classifications. Approximately 200 separate unskilled sedentary 
occupations can be identified, each representing numerous jobs in the 
national economy. Approximately 85 percent of these jobs are in the 
machine trades and benchwork occupational categories. These jobs 
(unskilled sedentary occupations) may be performed after a short 
demonstration or within 30 days.
    (b) These unskilled sedentary occupations are standard within the 
industries in which they exist. While sedentary work represents a 
significantly restricted range of work, this range in itself is not so 
prohibitively restricted as to negate work capability for substantial 
gainful activity.
    (c) Vocational adjustment to sedentary work may be expected where 
the individual has special skills or experience relevant to sedentary 
work or where age and basic educational competences provide sufficient 
occupational mobility to adapt to the major

[[Page 490]]

segment of unskilled sedentary work. Inability to engage in substantial 
gainful activity would be indicated where an individual who is 
restricted to sedentary work because of a severe medically determinable 
impairment lacks special skills or experience relevant to sedentary 
work, lacks educational qualifications relevant to most sedentary work 
(e.g., has a limited education or less) and the individual's age, though 
not necessarily advanced, is a factor which significantly limits 
vocational adaptability.
    (d) The adversity of functional restrictions to sedentary work at 
advanced age (55 and over) for individuals with no relevant past work or 
who can no longer perform vocationally relevant past work and have no 
transferable skills, warrants a finding of disabled in the the absence 
of the rare situation where the individual has recently completed 
education which provides a basis for direct entry into skilled sedentary 
work. Advanced age and a history of unskilled work or no work experience 
would ordinarily offset any vocational advantages that might accrue by 
reason of any remote past education, whether it is more or less than 
limited education.
    (e) The presence of acquired skills that are readily transferable to 
a significant range of skilled work within an individual's residual 
functional capacity would ordinarily warrant a finding of ability to 
engage in substantial gainful activity regardless of the adversity of 
age, or whether the individual's formal education is commensurate with 
his or her demonstrated skill level. The acquisition of work skills 
demonstrates the ability to perform work at the level of complexity 
demonstrated by the skill level attained regardless of the individual's 
formal educational attainments.
    (f) In order to find transferability of skills to skilled sedentary 
work for individuals who are of advanced age (55 and over), there must 
be very little, if any, vocational adjustment required in terms of 
tools, work processes, work settings, or the industry.
    (g) Individuals approaching advanced age (age 50-54) may be 
significantly limited in vocational adaptability if they are restricted 
to sedentary work. When such individuals have no past work experience or 
can no longer perform vocationally relevant past work and have no 
transferable skills, a finding of disabled ordinarily obtains. However, 
recently completed education which provides for direct entry into 
sedentary work will preclude such a finding. For this age group, even a 
high school education or more (ordinarily completed in the remote past) 
would have little impact for effecting a vocational adjustment unless 
relevant work experience reflects use of such education.
    (h) The term younger individual is used to denote an individual age 
18 through 49. For those within this group who are age 45-49, age is a 
less positive factor than for those who are age 18-44. Accordingly, for 
such individuals; (1) who are restricted to sedentary work, (2) who are 
unskilled or have no transferable skills, (3) who have no relevant past 
work or who can no longer perform vocationally relevant past work, and 
(4) who are either illiterate or unable to communicate in the English 
language, a finding of disabled is warranted. On the other hand, age is 
a more positive factor for those who are under age 45 and is usually not 
a significant factor in limiting such an individual's ability to make a 
vocational adjustment, even an adjustment to unskilled sedentary work, 
and even where the individual is illiterate or unable to communicate in 
English. However, a finding of disabled is not precluded for those 
individuals under age 45 who do not meet all of the criteria of a 
specific rule and who do not have the ability to perform a full range of 
sedentary work. The following examples are illustrative: Example 1: An 
individual under age 45 with a high school education can no longer do 
past work and is restricted to unskilled sedentary jobs because of a 
severe medically determinable cardiovascular impairment (which does not 
meet or equal the listings in appendix 1). A permanent injury of the 
right hand limits the individual to sedentary jobs which do not require 
bilateral manual dexterity. None of the rules in appendix 2 are 
applicable to this particular set of facts, because this individual 
cannot perform the full range of work defined as sedentary. Since the 
inability to perform jobs requiring bilateral manual dexterity 
significantly compromises the only range of work for which the 
individual is otherwise qualified (i.e., sedentary), a finding of 
disabled would be appropriate. Example 2: An illiterate 41 year old 
individual with mild mental retardation (IQ of 78) is restricted to 
unskilled sedentary work and cannot perform vocationally relevant past 
work, which had consisted of unskilled agricultural field work; his or 
her particular characteristics do not specifically meet any of the rules 
in appendix 2, because this individual cannot perform the full range of 
work defined as sedentary. In light of the adverse factors which further 
narrow the range of sedentary work for which this individual is 
qualified, a finding of disabled is appropriate.
    (i) While illiteracy or the inability to communicate in English may 
significantly limit an individual's vocational scope, the primary work 
functions in the bulk of unskilled work relate to working with things 
(rather than with data or people) and in these work functions at the 
unskilled level, literacy or ability to communicate in English has the 
least significance. Similarly the lack of relevant work experience would 
have little significance since the bulk of unskilled jobs require no 
qualifying work experience. Thus, the functional capability for a full 
range of sedentary work represents sufficient numbers of

[[Page 491]]

jobs to indicate substantial vocational scope for those individuals age 
18-44 even if they are illiterate or unable to communicate in English.

   Table No. 1--Residual Functional Capacity: Maximum Sustained Work Capability Limited to Sedentary Work as a  
                              Result of Severe Medically Determinable Impairment(s)                             
----------------------------------------------------------------------------------------------------------------
                                                                         Previous work                          
         Rule                    Age                 Education            experience              Decision      
----------------------------------------------------------------------------------------------------------------
201.01................  Advanced age.........  Limited or less.....  Unskilled or none...  Disabled.            
201.02................  ......do.............  ......do............  Skilled or                Do.              
                                                                      semiskilled--skills                       
                                                                      not transferable                          
                                                                      \1\.                                      
201.03................  ......do.............  ......do............  Skilled or            Not disabled.        
                                                                      semiskilled--skills                       
                                                                      transferable \1\.                         
201.04................  ......do.............  High school graduate  Unskilled or none...  Disabled.            
                                                or more--does not                                               
                                                provide for direct                                              
                                                entry into skilled                                              
                                                work \2\.                                                       
201.05................  ......do.............  High school graduate  ......do............  Not disabled.        
                                                or more--provides                                               
                                                for direct entry                                                
                                                into skilled work                                               
                                                \2\.                                                            
201.06................  ......do.............  High school graduate  Skilled or            Disabled.            
                                                or more--does not     semiskilled--skills                       
                                                provide for direct    not transferable                          
                                                entry into skilled    \1\.                                      
                                                work \2\.                                                       
201.07................  ......do.............  ......do............  Skilled or            Not disabled.        
                                                                      semiskilled--skills                       
                                                                      transferable \1\.                         
201.08................  ......do.............  High school graduate  Skilled or                Do.              
                                                or more--provides     semiskilled--skills                       
                                                for direct entry      not transferable                          
                                                into skilled work     \1\.                                      
                                                \2\.                                                            
201.09................  Closely approaching    Limited or less.....  Unskilled or none...  Disabled.            
                         advanced age.                                                                          
201.10................  ......do.............  ......do............  Skilled or                Do.              
                                                                      semiskilled--skills                       
                                                                      not transferable.                         
201.11................  ......do.............  ......do............  Skilled or            Not disabled.        
                                                                      semiskilled--skills                       
                                                                      transferable.                             
201.12................  ......do.............  High school graduate  Unskilled or none...  Disabled.            
                                                or more--does not                                               
                                                provide for direct                                              
                                                entry into skilled                                              
                                                work \3\.                                                       
201.13................  ......do.............  High school graduate  ......do............  Not disabled.        
                                                or more--provides                                               
                                                for direct entry                                                
                                                into skilled work                                               
                                                \3\.                                                            
201.14................  ......do.............  High school graduate  Skilled or            Disabled.            
                                                or more--does not     semiskilled--skills                       
                                                provide for direct    not transferable.                         
                                                entry into skilled                                              
                                                work \3\.                                                       
201.15................  ......do.............  ......do............  Skilled or            Not disabled.        
                                                                      semiskilled--skills                       
                                                                      transferable.                             
201.16................  ......do.............  High school graduate  Skilled or                Do.              
                                                or more--provides     semiskilled--skills                       
                                                for direct entry      not transferable.                         
                                                into skilled work                                               
                                                \3\.                                                            
201.17................  Younger individual     Illiterate or unable  Unskilled or none...  Disabled.            
                         age 45-49.             to communicate in                                               
                                                English.                                                        
201.18................  ......do.............  Limited or less--at   ......do............  Not disabled.        
                                                least literate and                                              
                                                able to communicate                                             
                                                in English.                                                     
201.19................  ......do.............  Limited or less.....  Skilled or                Do.              
                                                                      semiskilled--skills                       
                                                                      not transferable.                         
201.20................  ......do.............  ......do............  Skilled or                Do.              
                                                                      semiskilled--skills                       
                                                                      transferable.                             
201.21................  ......do.............  High school graduate  Skilled or                Do.              
                                                or more.              semiskilled--skills                       
                                                                      not transferable.                         
201.22................  ......do.............  ......do............  Skilled or                Do.              
                                                                      semiskilled--skills                       
                                                                      transferable.                             
201.23................  Younger individual     Illiterate or unable  Unskilled or none...      Do.\4\           
                         age 18-44.             to communicate in                                               
                                                English.                                                        
201.24................  ......do.............  Limited or less--at   ......do............      Do.\4\           
                                                least literate and                                              
                                                able to communicate                                             
                                                in English.                                                     
201.25................  ......do.............  Limited or less.....  Skilled or                Do.\4\           
                                                                      semiskilled--skills                       
                                                                      not transferable.                         
201.26................  ......do.............  ......do............  Skilled or                Do.\4\           
                                                                      semiskilled--skills                       
                                                                      transferable.                             
201.27................  ......do.............  High school graduate  Unskilled or none...      Do.\4\           
                                                or more.                                                        
201.28................  ......do.............  ......do............  Skilled or                Do.\4\           
                                                                      semiskilled--skills                       
                                                                      not transferable.                         

[[Page 492]]

                                                                                                                
201.29................  ......do.............  ......do............  Skilled or                Do.\4\           
                                                                      semiskilled--skills                       
                                                                      transferable.                             
----------------------------------------------------------------------------------------------------------------
\1\ See 201.00(f).                                                                                              
\2\ See 201.00(d).                                                                                              
\3\ See 201.00(g).                                                                                              
\4\ See 201.00(h).                                                                                              

    202.00  Maximum sustained work capability limited to light work as a 
result of severe medically determinable impairment(s). (a) The 
functional capacity to perform a full range of light work includes the 
functional capacity to perform sedentary as well as light work. 
Approximately 1,600 separate sedentary and light unskilled occupations 
can be identified in eight broad occupational categories, each 
occupation representing numerous jobs in the national economy. These 
jobs can be performed after a short demonstration or within 30 days, and 
do not require special skills or experience.
    (b) The functional capacity to perform a wide or full range of light 
work represents substantial work capability compatible with making a 
work adjustment to substantial numbers of unskilled jobs and, thus, 
generally provides sufficient occupational mobility even for severely 
impaired individuals who are not of advanced age and have sufficient 
educational competences for unskilled work.
    (c) However, for individuals of advanced age who can no longer 
perform vocationally relevant past work and who have a history of 
unskilled work experience, or who have only skills that are not readily 
transferable to a significant range of semi-skilled or skilled work that 
is within the individual's functional capacity, or who have no work 
experience, the limitations in vocational adaptability represented by 
functional restriction to light work warrant a finding of disabled. 
Ordinarily, even a high school education or more which was completed in 
the remote past will have little positive impact on effecting a 
vocational adjustment unless relevant work experience reflects use of 
such education.
    (d) Where the same factors in paragraph (c) of this section 
regarding education and work experience are present, but where age, 
though not advanced, is a factor which significantly limits vocational 
adaptability (i.e., closely approaching advanced age, 50-54) and an 
individual's vocational scope is further significantly limited by 
illiteracy or inability to communicate in English, a finding of disabled 
is warranted.
    (e) The presence of acquired skills that are readily transferable to 
a significant range of semi-skilled or skilled work within an 
individual's residual functional capacity would ordinarily warrant a 
finding of not disabled regardless of the adversity of age, or whether 
the individual's formal education is commensurate with his or her 
demonstrated skill level. The acquisition of work skills demonstrates 
the ability to perform work at the level of complexity demonstrated by 
the skill level attained regardless of the individual's formal 
educational attainments.
    (f) For a finding of transferability of skills to light work for 
individuals of advanced age who are closely approaching retirement age 
(age 60-64), there must be very little, if any, vocational adjustment 
required in terms of tools, work processes, work settings, or the 
industry.
    (g) While illiteracy or the inability to communicate in English may 
significantly limit an individual's vocational scope, the primary work 
functions in the bulk of unskilled work relate to working with things 
(rather than with data or people) and in these work functions at the 
unskilled level, literacy or ability to communicate in English has the 
least significance. Similarly, the lack of relevant work experience 
would have little significance since the bulk of unskilled jobs require 
no qualifying work experience. The capability for light work, which 
includes the ability to do sedentary work, represents the capability for 
substantial numbers of such jobs. This, in turn, represents substantial 
vocational scope for younger individuals (age 18-49) even if illiterate 
or unable to communicate in English.

 Table No. 2--Residual Functional Capacity: Maximum Sustained Work Capability Limited to Light Work as a Result 
                                 of Severe Medically Determinable Impairment(s)                                 
----------------------------------------------------------------------------------------------------------------
                                                                         Previous work                          
         Rule                    Age                 Education            experience              Decision      
----------------------------------------------------------------------------------------------------------------
202.01................  Advanced age.........  Limited or less.....  Unskilled or none...  Disabled.            

[[Page 493]]

                                                                                                                
202.02................  ......do.............  ......do............  Skilled or                Do.              
                                                                      semiskilled--skills                       
                                                                      not transferable.                         
202.03................  ......do.............  ......do............  Skilled or            Not disabled.        
                                                                      semiskilled--skills                       
                                                                      transferable \1\.                         
202.04................  ......do.............  High school graduate  Unskilled or none...  Disabled.            
                                                or more--does not                                               
                                                provide for direct                                              
                                                entry into skilled                                              
                                                work \2\.                                                       
202.05................  ......do.............  High school graduate  ......do............  Not disabled.        
                                                or more--provides                                               
                                                for direct entry                                                
                                                into skilled work                                               
                                                \2\.                                                            
202.06................  ......do.............  High school graduate  Skilled or            Disabled.            
                                                or more--does not     semiskilled--skills                       
                                                provide for direct    not transferable.                         
                                                entry into skilled                                              
                                                work \2\.                                                       
202.07................  ......do.............  ......do............  Skilled or            Not disabled.        
                                                                      semiskilled--skills                       
                                                                      transferable \2\.                         
202.08................  ......do.............  High school graduate  Skilled or                Do.              
                                                or more--provides     semiskilled--skills                       
                                                for direct entry      not transferable.                         
                                                into skilled work                                               
                                                \2\.                                                            
202.09................  Closely approaching    Illiterate or unable  Unskilled or none...  Disabled.            
                         advanced age.          to communicate in                                               
                                                English.                                                        
202.10................  ......do.............  Limited or less--at   ......do............  Not disabled.        
                                                least literate and                                              
                                                able to communicate                                             
                                                in English.                                                     
202.11................  ......do.............  Limited or less.....  Skilled or                Do.              
                                                                      semiskilled--skills                       
                                                                      not transferable.                         
202.12................  ......do.............  ......do............  Skilled or                Do.              
                                                                      semiskilled--skills                       
                                                                      transferable.                             
202.13................  ......do.............  High school graduate  Unskilled or none...      Do.              
                                                or more.                                                        
202.14................  ......do.............  ......do............  Skilled or                Do.              
                                                                      semiskilled--skills                       
                                                                      not transferable.                         
202.15................  ......do.............  ......do............  Skilled or                Do.              
                                                                      semiskilled--skills                       
                                                                      transferable.                             
202.16................  Younger individual...  Illiterate or unable  Unskilled or none...      Do.              
                                                to communicate in                                               
                                                English.                                                        
202.17................  ......do.............  Limited or less--at   ......do............      Do.              
                                                least literate and                                              
                                                able to communicate                                             
                                                in English.                                                     
202.18................  ......do.............  Limited or less.....  Skilled or                Do.              
                                                                      semiskilled--skills                       
                                                                      not transferable.                         
202.19................  ......do.............  ......do............  Skilled or                Do.              
                                                                      semiskilled--skills                       
                                                                      transferable.                             
202.20................  ......do.............  High school graduate  Unskilled or none...      Do.              
                                                or more.                                                        
202.21................  ......do.............  ......do............  Skilled or                Do.              
                                                                      semiskilled--skills                       
                                                                      not transferable.                         
202.22................  ......do.............  ......do............  Skilled or                Do.              
                                                                      semiskilled--skills                       
                                                                      transferable.                             
----------------------------------------------------------------------------------------------------------------
\1\ See 202.00(f).                                                                                              
\2\ See 202.00(c).                                                                                              

    203.00  Maximum sustained work capability limited to medium work as 
a result of severe medically determinable impair- ment(s). (a) The 
functional capacity to perform medium work includes the functional 
capacity to perform sedentary, light, and medium work. Approximately 
2,500 separate sedentary, light, and medium occupations can be 
identified, each occupation representing numerous jobs in the national 
economy which do not require skills or previous experience and which can 
be performed after a short demonstration or within 30 days.
    (b) The functional capacity to perform medium work represents such 
substantial work capability at even the unskilled level that a finding 
of disabled is ordinarily not warranted in cases where a severely 
impaired individual retains the functional capacity to perform medium 
work. Even the adversity of advanced age (55 or over) and a work history 
of unskilled work may be offset by the substantial work capability 
represented by the functional capacity to perform medium work. However, 
an individual with a marginal education and long work experience (i.e., 
35 years or more) limited to the performance of arduous unskilled labor, 
who is not working and is no longer able to perform this labor because 
of a severe impairment(s),

[[Page 494]]

may still be found disabled even though the individual is able to do 
medium work.
    (c) However, the absence of any relevant work experience becomes a 
more significant adversity for individuals of advanced age (55 and 
over). Accordingly, this factor, in combination with a limited education 
or less, militates against making a vocational adjustment to even this 
substantial range of work and a finding of disabled is appropriate. 
Further, for individuals closely approaching retirement age (60-64) with 
a work history of unskilled work and with marginal education or less, a 
finding of disabled is appropriate.

 Table No. 3--Residual Functional Capacity: Maximum Sustained Work Capability Limited to Medium Work as a Result
                                 of Severe Medically Determinable Impairment(s)                                 
----------------------------------------------------------------------------------------------------------------
                                                                         Previous work                          
         Rule                    Age                 Education            experience              Decision      
----------------------------------------------------------------------------------------------------------------
203.01................  Closely approaching    Marginal or none....  Unskilled or none...  Disabled.            
                         retirement age.                                                                        
203.02................  ......do.............  Limited or less.....  None................      Do.              
203.03................  ......do.............  Limited.............  Unskilled...........  Not disabled.        
203.04................  ......do.............  Limited or less.....  Skilled or                Do.              
                                                                      semiskilled--skills                       
                                                                      not transferable.                         
203.05................  ......do.............  ......do............  Skilled or                Do.              
                                                                      semiskilled--skills                       
                                                                      transferable.                             
203.06................  ......do.............  High school graduate  Unskilled or none...      Do.              
                                                or more.                                                        
203.07................  ......do.............  High school graduate  Skilled or                Do.              
                                                or more--does not     semiskilled--skills                       
                                                provide for direct    not transferable.                         
                                                entry into skilled                                              
                                                work.                                                           
203.08................  ......do.............  ......do............  Skilled or                Do.              
                                                                      semiskilled--skills                       
                                                                      transferable.                             
203.09................  ......do.............  High school graduate  Skilled or                Do.              
                                                or more--provides     semiskilled--skills                       
                                                for direct entry      not transferable.                         
                                                into skilled work.                                              
203.10................  Advanced age.........  Limited or less.....  None................  Disabled.            
203.11................  ......do.............  ......do............  Unskilled...........  Not disabled.        
203.12................  ......do.............  ......do............  Skilled or                Do.              
                                                                      semiskilled--skills                       
                                                                      not transferable.                         
203.13................  ......do.............  ......do............  Skilled or                Do.              
                                                                      semiskilled--skills                       
                                                                      transferable.                             
203.14................  ......do.............  High school graduate  Unskilled or none...      Do.              
                                                or more.                                                        
203.15................  ......do.............  High school graduate  Skilled or                Do.              
                                                or more--does not     semiskilled--skills                       
                                                provide for direct    not transferable.                         
                                                entry into skilled                                              
                                                work.                                                           
203.16................  ......do.............  ......do............  Skilled or                Do.              
                                                                      semiskilled--skills                       
                                                                      transferable.                             
203.17................  ......do.............  High school graduate  Skilled or                Do.              
                                                or more--provides     semiskilled--skills                       
                                                for direct entry      not transferable.                         
                                                into skilled work.                                              
203.18................  Closely approaching    Limited or less.....  Unskilled or none...      Do.              
                         advanced age.                                                                          
203.19................  ......do.............  ......do............  Skilled or                Do.              
                                                                      semiskilled--skills                       
                                                                      not transferable.                         
203.20................  ......do.............  ......do............  Skilled or                Do.              
                                                                      semiskilled--skills                       
                                                                      transferable.                             
203.21................  ......do.............  High school graduate  Unskilled or none...      Do.              
                                                or more.                                                        
203.22................  ......do.............  High school graduate  Skilled or                Do.              
                                                or more--does not     semiskilled--skills                       
                                                provide for direct    not transferable.                         
                                                entry into skilled                                              
                                                work.                                                           
203.23................  ......do.............  ......do............  Skilled or                Do.              
                                                                      semiskilled--skills                       
                                                                      transferable.                             
203.24................  ......do.............  High school graduate  Skilled or                Do.              
                                                or more--provides     semiskilled--skills                       
                                                for direct entry      not transferable.                         
                                                into skilled work.                                              
203.25................  Younger individual...  Limited or less.....  Unskilled or none...      Do.              
203.26................  ......do.............  ......do............  Skilled or                Do.              
                                                                      semiskilled--skills                       
                                                                      not transferable.                         
203.27................  ......do.............  ......do............  Skilled or                Do.              
                                                                      semiskilled--skills                       
                                                                      transferable.                             
203.28................  ......do.............  High school graduate  Unskilled or none...      Do.              
                                                or more.                                                        
203.29................  ......do.............  High school graduate  Skilled or                Do.              
                                                or more--does not     semiskilled--skills                       
                                                provide for direct    not transferable.                         
                                                entry into skilled                                              
                                                work.                                                           
203.30................  ......do.............  ......do............  Skilled or                Do.              
                                                                      semiskilled--skills                       
                                                                      transferable.                             

[[Page 495]]

                                                                                                                
203.31................  ......do.............  High school graduate  Skilled or                Do.              
                                                or more--provides     semiskilled--skills                       
                                                for direct entry      not transferable.                         
                                                into skilled work.                                              
----------------------------------------------------------------------------------------------------------------

    204.00  Maximum sustained work capability limited to heavy work (or 
very heavy work) as a result of severe medically determinable 
impairment(s). The residual functional capacity to perform heavy work or 
very heavy work includes the functional capability for work at the 
lesser functional levels as well, and represents substantial work 
capability for jobs in the national economy at all skill and physical 
demand levels. Individuals who retain the functional capacity to perform 
heavy work (or very heavy work) ordinarily will not have a severe 
impairment or will be able to do their past work--either of which would 
have already provided a basis for a decision of ``not disabled''. 
Environmental restrictions ordinarily would not significantly affect the 
range of work existing in the national economy for individuals with the 
physical capability for heavy work (or very heavy work). Thus an 
impairment which does not preclude heavy work (or very heavy work) would 
not ordinarily be the primary reason for unemployment, and generally is 
sufficient for a finding of not disabled, even though age, education, 
and skill level of prior work experience may be considered adverse.

[45 FR 55584, Aug. 20, 1980, as amended at 56 FR 57944, Nov. 14, 1991]



                 Subpart Q--Determinations of Disability

    Authority:  Secs. 205(a), 221, and 702(a)(5) of the Social Security 
Act (42 U.S.C. 405(a), 421, and 902(a)(5)).

    Source:  46 FR 29204, May 29, 1981, unless otherwise noted.

                           General Provisions



Sec. 404.1601  Purpose and scope.

    This subpart describes the standards of performance and 
administrative requirements and procedures for States making 
determinations of disability for the Secretary under title II of the 
Act. It also establishes the Secretary's responsibilities in carrying 
out the disability determination function.
    (a) Sections 404.1601 through 404.1603 describe the purpose of the 
regulations and the meaning of terms frequently used in the regulations. 
They also briefly set forth the responsibilities of the Secretary and 
the States covered in detail in other sections.
    (b) Sections 404.1610 through 404.1618 describe the Secretary's and 
the State's responsibilities in performing the disability determination 
function.
    (c) Sections 404.1620 through 404.1633 describe the administrative 
responsibilities and requirements of the States. The corresponding role 
of the Secretary is also set out.
    (d) Sections 404.1640 through 404.1650 describe the performance 
accuracy and processing time standards for measuring State agency 
performance.
    (e) Sections 404.1660 through 404.1661 describe when and what kind 
of assistance the Secretary will provide State agencies to help them 
improve performance.
    (f) Sections 404.1670 through 404.1675 describe the level of 
performance below which the Secretary will consider a State agency to be 
substantially failing to make disability determinations consistent with 
the regulations and other written guidelines and the resulting action 
the Secretary will take.
    (g) Sections 404.1680 through 404.1683 describe the rules for 
resolving disputes concerning fiscal issues and providing hearings when 
we propose to find that a State is in substantial failure.
    (h) Sections 404.1690 through 404.1694 describe when and what action 
the Secretary will take and what action the State will be expected to 
take if the Secretary assumes the disability determination function from 
a State agency.



Sec. 404.1602  Definitions.

    For purposes of this subpart:
    Act means the Social Security Act, as amended.

[[Page 496]]

    Class or classes of cases means the categories into which disability 
claims are divided according to their characteristics.
    Determination of disability or disability determination means one or 
more of the following decisions:
    (a) Whether or not a person is under a disability;
    (b) The date a person's disability began; or
    (c) The date a person's disability ended.
    Disability means disability or blindness as defined in sections 
216(i) and 223 of the Act or as defined in title IV of the Federal Mine 
Safety and Health Act of 1977, as amended.
    Disability determination function means making determinations as to 
disability and carrying out related administrative and other 
responsibilities.
    Disability program means, as appropriate, the Federal programs for 
providing disability insurance benefits under title II of the Act and 
disability benefits under title IV of the Federal Mine Safety and Health 
Act of 1977, as amended.
    Initial means the first level of disability adjudication.
    Other written guidelines means written issuances such as Social 
Security Rulings and memoranda by the Commissioner of Social Security, 
the Deputy Commissioner for Programs, or the Associate Commissioner for 
Disability and the procedures, guides, and operating instructions in the 
Disability Insurance sections of the Program Operations Manual System, 
that are instructive, interpretive, clarifying, and/or administrative 
and not designated as advisory or discretionary. The purpose of 
including the foregoing material in the definition is to assure uniform 
national application of program standards and service delivery to the 
public.
    Regulations means regulations in this subpart issued under sections 
205(a), 221 and 1102 of the Act, unless otherwise indicated.
    Secretary means the Secretary of the Department of Health and Human 
Services or the Secretary's delegate.
    State means any of the 50 States of the United States, the 
Commonwealth of Puerto Rico, the District of Columbia, or Guam. It 
includes the State agency.
    State agency means that agency of a State which has been designated 
by the State to carry out the disability determination function.
    We, us, and our refers to the Social Security Administration (SSA) 
or the Secretary, as appropriate.

[46 FR 29204, May 29, 1981, as amended at 56 FR 11018, Mar. 14, 1991]



Sec. 404.1603  Basic responsibilities for us and the State.

    (a) General. We will work with the State to provide and maintain an 
effective system for processing claims of those who apply for and who 
are receiving benefits under the disability program. We will provide 
program standards, leadership, and oversight. We do not intend to become 
involved in the State's ongoing management of the program except as is 
necessary and in accordance with these regulations. The State will 
comply with our regulations and other written guidelines.
    (b) Our responsibilities. We will:
    (1) Periodically review the regulations and other written guidelines 
to determine whether they insure effective and uniform administration of 
the disability program. To the extent feasible, we will consult with and 
take into consideration the experience of the States in issuing 
regulations and guidelines necessary to insure effective and uniform 
administration of the disability program;
    (2) Provide training materials or in some instances conduct or 
specify training, see Sec. 404.1622;
    (3) Provide funds to the State agency for the necessary cost of 
performing the disability determination function, see Sec. 404.1626;
    (4) Monitor and evaluate the performance of the State agency under 
the established standards, see Secs. 404.1644 and 404.1645; and
    (5) Maintain liaison with the medical profession nationally and with 
national organizations and agencies whose interests or activities may 
affect the disability program.
    (c) Responsibilities of the State. The State will:
    (1) Provide management needed to insure that the State agency 
carries

[[Page 497]]

out the disability determination function so that disability 
determinations are made accurately and promptly;
    (2) Provide an organizational structure, adequate facilities, 
qualified personnel, medical consultant services, and a quality 
assurance function (Secs. 404.1620 through 404.1624);
    (3) Furnish reports and records relating to the administration of 
the disability program (Sec. 404.1625);
    (4) Submit budgets (Sec. 404.1626);
    (5) Cooperate with audits (Sec. 404.1627);
    (6) Insure that all applicants for and recipients of disability 
benefits are treated equally and courteously;
    (7) Be responsible for property used for disability program purposes 
(Sec. 404.1628);
    (8) Take part in the research and demonstration projects 
(Sec. 404.1629);
    (9) Coordinate with other agencies (Sec. 404.1630);
    (10) Safeguard the records created by the State in performing the 
disability determination function (Sec. 404.1631);
    (11) Comply with other provisions of the Federal law and regulations 
that apply to the State in performing the disability determination 
function;
    (12) Comply with other written guidelines (Sec. 404.1633);
    (13) Maintain liaison with the medical profession and organizations 
that may facilitate performing the disability determination function; 
and
    (14) Assist us in other ways that we determine may promote the 
objectives of effective and uniform administration.

  Responsibilities for Performing the Disability Determination Function



Sec. 404.1610  How a State notifies us that it wishes to perform the disability determination function.

    (a) Deemed notice. Any State that has in effect as of June 1, 1981, 
an agreement with us to make disability determinations will be deemed to 
have given us notice that it wishes to perform the disability 
determination function, in lieu of continuing the agreement in effect 
after June 1, 1981.
    (b) Written notice. After June 1, 1981, a State not making 
disability determinations that wishes to perform the disability 
determination function under these regulations must notify us in 
writing. The notice must be from an official authorized to act for the 
State for this purpose. The State will provide an opinion from the 
State's Attorney General verifying the authority of the official who 
sent the notice to act for the State.



Sec. 404.1611  How we notify a State whether it may perform the disability determination function.

    (a) If a State notifies us in writing that it wishes to perform the 
disability determination function, we will notify the State in writing 
whether or not it may perform the function. The State will begin 
performing the disability determination function beginning with the 
month we and the State agree upon.
    (b) If we have previously found that a State agency has 
substantially failed to make disability determinations in accordance 
with the law or these regulations and other written guidelines or if the 
State has previously notified us in writing that it does not wish to 
make disability determinations, the notice will advise the State whether 
the State agency may again make the disability determinations and, if 
so, the date and the conditions under which the State may again make 
them.



Sec. 404.1613  Disability determinations the State makes.

    (a) General rule. A State agency will make determinations of 
disability with respect to all persons in the State except those 
individuals whose cases are in a class specifically excluded by our 
written guidelines. A determination of disability made by the State is 
the determination of the Secretary, except as described in 
Sec. 404.1503(d)(1).
    (b) New classes of cases. Where any new class or classes of cases 
arise requiring determinations of disability, we will determine the 
conditions under which a State may choose not to make the disability 
determinations. We will provide the State with the necessary funding to 
do the additional work.
    (c) Temporary transfer of classes of cases. We will make disability 
determinations for classes of cases temporarily transferred to us by the 
State agency if the State agency asks us to do so and we agree. The 
State agency

[[Page 498]]

will make written arrangements with us which will specify the period of 
time and the class or classes of cases we will do.



Sec. 404.1614  Responsibilities for obtaining evidence to make disability determinations.

    (a) The State agency will secure from the claimant, or other 
sources, any evidence it needs to make a disability determination.
    (b) We will secure from the claimant or other special arrangement 
sources, any evidence we can obtain as adequately and more readily than 
the State agency. We will furnish the evidence to the State agency for 
use in making a disability determination.
    (c) At our request, the State agency will obtain and furnish medical 
or other evidence and provide assistance as may be necessary for us to 
carry out our responsibilities--
    (1) For making disability determinations in those classes of cases 
described in the written guidelines for which the State agency does not 
make the determination; or
    (2) Under international agreements with respect to social security 
benefits payable under section 233 of the Act.



Sec. 404.1615  Making disability determinations.

    (a) When making a disability determination, the State agency will 
apply subpart P, part 404, of our regulations.
    (b) The State agency will make disability determinations based only 
on the medical and nonmedical evidence in its files.
    (c) Disability determinations will be made by either:
    (1) A State agency medical or psychological consultant and a State 
agency disability examiner;
    (2) A State agency disability examiner alone when there is no 
medical evidence to be evaluated (i.e., no medical evidence exists or we 
are unable, despite making every reasonable effort, to obtain any 
medical evidence that may exist) and the individual fails or refuses, 
without a good reason, to attend a consultative examination (see 
Sec. 404.1518); or
    (3) A State agency disability hearing officer.

See Sec. 404.1616 for the definition of medical or psychological 
consultant and Sec. 404.915 for the definition of disability hearing 
officer. The State agency disability examiner and disability hearing 
officer must be qualified to interpret and evaluate medical reports and 
other evidence relating to the claimant's physical or mental impairments 
and as necessary to determine the capacities of the claimant to perform 
substantial gainful activity.

See Sec. 404.1572 for what we mean by substantial gainful activity.
    (d) An initial determination by the State agency that an individual 
is not disabled, in any case where there is evidence which indicates the 
existence of a mental impairment, will be made only after every 
reasonable effort has been made to ensure that a qualified psychiatrist 
or psychologist has completed the medical portion of the case review and 
any applicable residual functional capacity assessment. (See 
Sec. 404.1616 for the qualifications we consider necessary for a 
psychologist to be a psychological consultant and Sec. 404.1617 for what 
we mean by ``reasonable effort''.) If the services of qualified 
psychiatrists or psychologists cannot be obtained because of impediments 
at the State level, the Secretary may contract directly for the 
services. In a case where there is evidence of mental and nonmental 
impairments and a qualified psychologist serves as a psychological 
consultant, the psychologist will evaluate only the mental impairment, 
and a physician will evaluate the nonmental impairment. The overall 
determination of impairment severity in combined mental and nonmental 
impairment cases will be made by a medical consultant and not a 
psychological consultant unless the mental impairment alone would 
justify a finding of disability.
    (e) The State agency will certify each determination of disability 
to us on forms we provide.
    (f) The State agency will furnish us with all the evidence it 
considered in making its determination.
    (g) The State agency will not be responsible for defending in court 
any determination made, or any procedure for

[[Page 499]]

making determinations, under these regulations.

[52 FR 33926, Sept. 9, 1987, as amended at 56 FR 11018, Mar. 14, 1991; 
61 FR 11135, Mar. 19, 1996]



Sec. 404.1616  Medical or psychological consultant.

    A medical consultant must be a physician. A psychological consultant 
used in cases where there is evidence of a mental impairment must be a 
qualified psychologist. For disability program purposes a psychologist 
will not be considered qualified unless he or she:
    (a) Is licensed or certified as a psychologist at the independent 
practice level of psychology by the State in which he or she practices; 
and
    (b)(1) Possesses a doctorate degree in psychology from a program in 
clinical psychology of an educational institution accredited by an 
organization recognized by the Council on Post-Secondary Accreditation; 
or
    (2) Is listed in a national register of health service providers in 
psychology which the Secretary of Health and Human Services deems 
appropriate; and
    (c) Possesses 2 years of supervised clinical experience as a 
psychologist in health service, at least 1 year of which is post masters 
degree.

[52 FR 33927, Sept. 9, 1987]



Sec. 404.1617  Reasonable efforts to obtain review by a qualified psychiatrist or psychologist.

    (a) The State agency must determine if additional qualified 
psychiatrists and psychologists are needed to make the necessary reviews 
(see Sec. 404.1615(d)). Where it does not have sufficient resources to 
make the necessary reviews, the State agency must attempt to obtain the 
resources needed. If the State agency is unable to obtain additional 
psychiatrists and psychologists because of low salary rates or fee 
schedules it should attempt to raise the State agency's levels of 
compensation to meet the prevailing rates for psychiatrists' and 
psychologists' services. If these efforts are unsuccessful, the State 
agency will seek assistance from us. We will assist the State agency as 
necessary. We will also monitor the State agency's efforts and where the 
State agency is unable to obtain the necessary services, we will make 
every reasonable effort to provide the services using Federal resources.
    (b) Federal resources may include the use of Federal contracts for 
the services of qualified psychiatrists and psychologists to review 
mental impairment cases. Where Federal resources are required to perform 
these reviews, which are a basic State agency responsibility, and where 
appropriate, the State agency's budget will be reduced accordingly.
    (c) Where every reasonable effort is made to obtain the services of 
a qualified psychiatrist or psychologist to review a mental impairment 
case, but the professional services are not obtained, a physician who is 
not a psychiatrist will review the mental impairment case. For these 
purposes, every reasonable effort to ensure that a qualified 
psychiatrist or psychologist review mental impairment cases will be 
considered to have been made only after efforts by both State and 
Federal agencies as set forth in paragraphs (a) and (b) of this section 
are made.

[52 FR 33927, Sept. 9, 1987]



Sec. 404.1618  Notifying claimants of the disability determination.

    The State agency will prepare denial notices in accordance with 
subpart J of this part whenever it makes a disability determination 
which is wholly or partly unfavorable to the claimant.

            Administrative Responsibilities and Requirements



Sec. 404.1620  General administrative requirements.

    (a) The State will provide the organizational structure, qualified 
personnel, medical consultant services, and a quality assurance function 
sufficient to ensure that disability determinations are made accurately 
and promptly. We may impose specific administrative requirements in 
these areas and in those under ``Administrative Responsibilities and 
Requirements'' in order to establish uniform, national administrative 
practices or to correct the areas of deficiencies which may later cause 
the State to be substantially failing to comply with our regulations or 
other

[[Page 500]]

written guidelines. We will notify the State, in writing, of the 
administrative requirements being imposed and of any administrative 
deficiencies it is required to correct. We will allow the State 90 days 
from the date of this notice to make appropriate corrections. Once 
corrected, we will monitor the State's administrative practices for 180 
days. If the State does not meet the requirements or correct all of the 
deficiencies, or, if some of the deficiencies recur, we may initiate 
procedures to determine if the State is substantially failing to follow 
our regulations or other written guidelines.
    (b) The State is responsible for making accurate and prompt 
disability determinations.

[46 FR 29204, May 29, 1981, as amended at 56 FR 11018, Mar. 14, 1991]



Sec. 404.1621  Personnel.

    (a) Equal employment opportunity. The State will comply with all 
applicable Federal statutes, executive orders and regulations concerned 
with equal employment opportunities.
    (b) Selection, tenure, and compensation. The State agency will, 
except as may be inconsistent with paragraph (a) of this section, adhere 
to applicable State approved personnel standards in the selection, 
tenure, and compensation of any individual employed in the disability 
program.
    (c) Travel. The State will make personnel available to attend 
meetings or workshops as may be sponsored or approved by us for 
furthering the purposes of the disability program.
    (d) Restrictions. Subject to appropriate Federal funding, the State 
will, to the best of its ability, facilitate the processing of 
disability claims by avoiding personnel freezes, restrictions against 
overtime work, or curtailment of facilities or activities.



Sec. 404.1622  Training.

    The State will insure that all employees have an acceptable level of 
competence. We will provide training and other instructional materials 
to facilitate basic and advanced technical proficiency of disability 
staff in order to insure uniformity and effectiveness in the 
administration of the disability program. We will conduct or specify 
training, as appropriate, but only if:
    (a) A State agency's performance approaches unacceptable levels; or
    (b) The material required for the training is complex or the 
capacity of the State to deliver the training is in doubt and uniformity 
of the training is essential.



Sec. 404.1623  Facilities.

    (a) Space, equipment, supplies, and other services. Subject to 
appropriate Federal funding, the State will provide adequate space, 
equipment, supplies, and other services to facilitate making accurate 
and prompt disability determinations.
    (b) Location of facilities. Subject to appropriate Federal funding, 
the State will determine the location where the disability determination 
function is to be performed so that disability determinations are made 
accurately and promptly.
    (c) Access. The State will permit us access to the premises where 
the disability determination function is performed and also where it is 
managed for the purposes of inspecting and obtaining information about 
the work and activities required by our regulations and assuring 
compliance with pertinent Federal statutes and regulations. Access 
includes personal onsite visits and other means, such as 
telecommunications, of contacting the State agency to obtain information 
about its functions. We will contact the State agency and give 
reasonable prior notice of the times and purposes of any visits.

[46 FR 29204, May 29, 1981, as amended at 56 FR 11019, Mar. 14, 1991]



Sec. 404.1624  Medical and other purchased services.

    The State will determine the rates of payment to be used for 
purchasing medical or other services necessary to make determinations of 
disability. The rates may not exceed the highest rate paid by Federal or 
other agencies in the State for the same or similar type of service. The 
State will maintain documentation to support the rates of payment it 
uses.

[[Page 501]]



Sec. 404.1625  Records and reports.

    (a) The State will establish and maintain the records and furnish 
the schedules, financial, cost, and other reports relating to the 
administration of the disability programs as we may require.
    (b) The State will permit us and the Comptroller General of the 
United States (including duly authorized representatives) access to and 
the right to examine records relating to the work which the State 
performs under these regulations. These records will be retained by the 
State for the periods of time specified for retention of records in the 
Federal Procurement Regulations (41 CFR parts 1-20).



Sec. 404.1626  Fiscal.

    (a) We will give the State funds, in advance or by way of 
reimbursement, for necessary costs in making disability determinations 
under these regulations. Necessary costs are direct as well as indirect 
costs as defined in 41 CFR part 1-15, subpart 1-15.7 of the Federal 
Procurement Regulations System for costs incurred before April 1, 1984; 
and 48 CFR part 31, subpart 31.6 of the Federal Acquisition Regulations 
System and Federal Management Circular A-74-4 \1\ as amended or 
superseded for costs incurred after March 31, 1984.
---------------------------------------------------------------------------

    \1\ The circular is available from the Office of Administration, 
Publications Unit, Rm. G-236, New Executive Office Bldg., Washington, DC 
20503.
---------------------------------------------------------------------------

    (b) The State will submit estimates of anticipated costs in the form 
of a budget at the time and in the manner we require.
    (c) We will notify the State of the amount which will be made 
available to it as well as what anticipated costs are being approved.
    (d) The State may not incur or make expenditures for items of cost 
not approved by us or in excess of the amount we make available to the 
State.
    (e) After the close of a period for which funds have been made 
available to the State, the State will submit a report of its 
expenditures. Based on an audit arranged by the State under Pub. L. 98-
502, the Single Audit Act of 1984, or by the Inspector General of the 
Department of Health and Human Services or based on an audit or review 
by the Social Security Administration (see Sec. 404.1627), we will 
determine whether the expenditures were consistent with cost principles 
described in 41 CFR part 1-15, subpart 1-15.7 for costs incurred before 
April 1, 1984; and 48 CFR part 31, subpart 31.6 and Federal Management 
Circular A-741-4 for costs incurred after March 31, 1984: and in other 
applicable written guidelines in effect at the time the expenditures 
were made or incurred.
    (f) Any monies paid to the State which are used for purposes not 
within the scope of these regulations will be paid back to the Treasury 
of the United States.

[46 FR 29204, May 29, 1981, as amended at 56 FR 11019, Mar. 14, 1991]



Sec. 404.1627  Audits.

    (a) Audits performed by the State--(1) Generally. Audits of accounts 
and records pertaining to the administration of the disability program 
under the Act, will be performed by the States in accordance with the 
Single Audit Act of 1984 (Pub. L. 98-502) which establishes audit 
requirements for States receiving Federal assistance. If the audit 
performed by the State meets our program requirements, we will accept 
the findings and recommendations of the audit. The State will make every 
effort to act upon and resolve any items questioned in the audit.
    (2) Questioned items. Items questioned as a result of an audit under 
the Single Audit Act of 1984 of a cross-cutting nature will be resolved 
by the Department of Health and Human Services, Office of Grant and 
Contract Financial Management. A cross-cutting issue is one that 
involves more than one Federal awarding agency. Questioned items 
affecting only the disability program will be resolved by SSA in accord 
with paragraph (b)(2) of this section,
    (3) State appeal of audit determinations. The Office of Grant and 
Contract Financial Management will notify the State of its determination 
on questioned cross-cutting items. If the State disagrees with that 
determination, it may appeal in writing within 60 days of receiving the 
determination. State appeals of a cross-cutting issue as a result of an 
audit under the Single Audit

[[Page 502]]

Act of 1984 will be made to the Department of Health and Human Services' 
Departmental Appeals Board. The rules for hearings and appeals are 
provided in 45 CFR part 16.
    (b) Audits performed by the Secretary--(1) Generally. If the State 
does not perform an audit under the Single Audit Act of 1984 or the 
audit performed is not satisfactory for disability program purposes, the 
books of account and records in the State pertaining to the 
administrations of the disability programs under the Act will be audited 
by the Department of Health and Human Services' Inspector General or 
audited or reviewed by SSA as appropriate. These audits or reviews will 
be conducted to determine whether the expenditures were made for the 
intended purposes and in amounts necessary for the proper and efficient 
administration of the disability programs. Audits or reviews will also 
be made to inspect the work and activities required by the regulations 
to ensure compliance with pertinent Federal statutes and regulations. 
The State will make every effort to act upon and resolve any items 
questioned in an audit or review.
    (2) Questioned items. Expenditures of State agencies will be audited 
or reviewed, as appropriate, on the basis of cost principles and written 
guidelines in effect at the time the expenditures were made or incurred. 
Both the State and the State agency will be informed and given a full 
explanation of any items questioned. They will be given reasonable time 
to explain items questioned. Any explanation furnished by the State or 
State agency will be given full consideration before a final 
determination is made on the audit or review report.
    (3) State appeal of audit determinations. The appropriate Social 
Security Administration Regional Commissioner will notify the State of 
his or her determination on the audit or review report. If the State 
disagrees with that determination, the State may request reconsideration 
in writing within 60 days of the date of the Regional Commissioner's 
notice of the determination. The written request may be made, through 
the Associate Commissioner, Office of Disability, to the Commissioner of 
Social Security, room 900, Altmeyer Building, 6401 Security Boulevard, 
Baltimore, Maryland 21235. The Commissioner will make a determination 
and notify the State of the decision in writing no later than 90 days 
from the date the Social Security Administration receives the State's 
appeal and all supporting documents. The decision by the Commissioner on 
other than monetary disallowances will be final and binding upon the 
State. The decision by the Commissioner on monetary disallowances will 
be final and binding upon the State unless the State appeals the 
decision in writing to the Department of Health and Human Services, 
Departmental Appeals Board within 30 days after receiving the 
Commissioner's decision. See Sec. 404.1683.

[56 FR 11019, Mar. 14, 1991]



Sec. 404.1628  Property.

    The State will have title to equipment purchased for disability 
program purposes. The State will be responsible for maintaining all 
property it acquires or which we furnish to it for performing the 
disability determination function. The State will identify the equipment 
by labeling and by inventory and will credit the SSA account with the 
fair market value of disposed property.
    In the event we assume the disability determination function from a 
State, ownership of all property and equipment acquired with SSA funds 
will be transferred to us effective on the date the State is notified 
that we are assuming the disability determination function or we are 
notified that the State is terminating the relationship.



Sec. 404.1629  Participation in research and demonstration projects.

    We will invite State participation in federally funded research and 
demonstration projects to assess the effectiveness of the disability 
program and to ascertain the effect of program policy changes. Where we 
determine that State participation is necessary for the project to be 
complete, for example, to provide national uniformity in a claims 
process, State participation is mandatory.

[[Page 503]]



Sec. 404.1630  Coordination with other agencies.

    (a) The State will establish cooperative working relationships with 
other agencies concerned with serving the disabled and, insofar as 
practicable, use their services, facilities, and records to:
    (1) Assist the State in developing evidence and making 
determinations of disability; and
    (2) Insure that referral of disabled or blind persons for 
rehabilitation services will be carried out effectively.
    (b) The State may pay these agencies for the services, facilities, 
or records they provide. The State will include these costs in its 
estimates of anticipated costs and reports of actual expenditures.



Sec. 404.1631  Confidentiality of information and records.

    The State will comply with the confidentiality of information, 
including the security of systems, and records requirements described in 
20 CFR part 401 and pertinent written guidelines (see Sec. 404.1633).



Sec. 404.1632  Other Federal laws and regulations.

    The State will comply with the provisions of other Federal laws and 
regulations that directly affect its responsibilities in carrying out 
the disability determination function; for example, Treasury Department 
regulations on letters of credit (31 CFR part 205).



Sec. 404.1633  Policies and operating instructions.

    (a) We will provide the State agency with written guidelines 
necessary for it to carry out its responsibilities in performing the 
disability determination function.
    (b) The State agency making determinations of disability will comply 
with our written guidelines that are not designated as advisory or 
discretionary. (See Sec. 404.1602 for what we mean by written 
guidelines.)
    (c) A representative group of State agencies will be given an 
opportunity to participate in formulating disability program policies 
that have an affect on their role in carrying out the disability 
determination function. State agencies will also be given an opportunity 
to comment before changes are made in written guidelines unless delay in 
issuing a change may impair service to the public.

[46 FR 29204, May 29, 1981, as amended at 56 FR 11020, Mar. 14, 1991]

                          Performance Standards



Sec. 404.1640  General.

    The following sections provide the procedures and guidelines we use 
to determine whether the State agency is substantially complying with 
our regulations and other written guidelines, including meeting 
established national performance standards. We use performance standards 
to help assure effective and uniform administration of our disability 
programs and to measure whether the performance of the disability 
determination function by each State agency is acceptable. Also, the 
standards are designed to improve overall State agency performance in 
the disability determination process and to ensure that benefits are 
made available to all eligible persons in an accurate and efficient 
manner. We measure the performance of a State agency in two areas--
processing time and quality of documentation and decisions on claims. 
State agency compliance is also judged by State agency adherence to 
other program requirements.

[56 FR 11020, Mar. 14, 1991]



Sec. 404.1641  Standards of performance.

    (a) General. The performance standards include both a target level 
of performance and a threshold level of performance for the State 
agency. The target level represents a level of performance that we and 
the States will work to attain in the future. The threshold level is the 
minimum acceptable level of performance. Performance below the threshold 
level will be the basis for the Secretary's taking from the State agency 
partial or complete responsibility for performing the disability 
determination function. Intermediate State agency goals are designed to 
help each State agency move from its current performance levels to the 
target levels.

[[Page 504]]

    (b) The target level. The target level is the optimum level of 
performance. There are three targets--one for combined title II and 
title XVI initial performance accuracy, one for title II initial 
processing time, and one for title XVI initial processing time.
    (c) The threshold level. The threshold level is the minimum 
acceptable level of performance. There are three thresholds--one for 
combined title II and title XVI initial performance accuracy, one for 
title II initial processing time, and one for title XVI initial 
processing time.
    (d) Intermediate goals. Intermediate goals are levels of performance 
between the threshold levels and the target levels established by our 
appropriate Regional Commissioner after negotiation with each State 
agency. The intermediate goals are designed to help the State agencies 
reach the target levels. Failure to meet these goals is not a cause for 
considering the State agency to be substantially failing to comply with 
the performance standards. However, failure to meet the intermediate 
goals may result in consultation and an offer of optional performance 
support depending on the availability of our resources.

[46 FR 29204, May 29, 1981, as amended at 56 FR 11020, Mar. 14, 1991]



Sec. 404.1642  Processing time standards.

    (a) General. Title II processing time refers to the average number 
of days, including Saturdays, Sundays, and holidays, it takes a State 
agency to process an initial disability claim from the day the case 
folder is received in the State agency until the day it is released to 
us by the State agency. Title XVI processing time refers to the average 
number of days, including Saturdays, Sundays, and holidays, from the day 
of receipt of the initial disability claim in the State agency until 
systems input of a presumptive disability decision or the day the case 
folder is released to us by the State agency, whichever is earlier.
    (b) Target levels. The processing time target levels are:
    (1) 37 days for title II initial claims.
    (2) 43 days for title XVI initial claims.
    (c) Threshold levels. The processing time threshold levels are:
    (1) 49.5 days for title II initial claims.
    (2) 57.9 days for title XVI initial claims.

[46 FR 29204, May 29, 1981, as amended at 56 FR 11020, Mar. 14, 1991]



Sec. 404.1643  Performance accuracy standard.

    (a) General. Performance accuracy refers to the percentage of cases 
that do not have to be returned to State agencies for further 
development or correction of decisions based on evidence in the files 
and as such represents the reliability of State agency adjudication. The 
definition of performance accuracy includes the measurement of factors 
that have a potential for affecting a decision, as well as the 
correctness of the decision. For example, if a particular item of 
medical evidence should have been in the file but was not included, even 
though its inclusion does not change the result in the case, that is a 
performance error. Performance accuracy, therefore, is a higher standard 
than decisional accuracy. As a result, the percentage of correct 
decisions is significantly higher than what is reflected in the error 
rate established by SSA's quality assurance system.
    (b) Target level. The State agency initial performance accuracy 
target level for combined title II and title XVI cases is 97 percent 
with a corresponding decision accuracy rate of 99 percent.
    (c) Intermediate Goals. These goals will be established annually by 
SSA's regional commissioner after negotiation with the State and should 
be used as stepping stones to progress towards our targeted level of 
performance.
    (d) Threshold levels. The State agency initial performance accuracy 
threshold level for combined title II and title XVI cases is 90.6 
percent.



Sec. 404.1644  How and when we determine whether the processing time standards are met.

    (a) How we determine processing times. For all initial title II 
cases, we calculate the mean number of days, including Saturdays, 
Sundays and holidays, from the day the case folder is received in the 
State agency until the

[[Page 505]]

day it is released to us by the State agency. For initial title XVI 
cases, we calculate the mean number of days, including Saturdays, 
Sundays, and holidays, from the day the case folder is received in the 
State agency until the day there is a systems input of a presumptive 
disability decision or the day the case folder is released to us by the 
State agency, whichever is earlier.
    (b) Frequency of review. Title II processing times and title XVI 
processing times are monitored separately on a quarterly basis. The 
determination as to whether or not the processing time thresholds have 
been met is made at the end of each quarter each year. Quarterly State-
by-State mean processing times are compared with the threshold levels 
for both title II and title XVI.

[46 FR 29204, May 29, 1981, as amended at 56 FR 11020, Mar. 14, 1991]



Sec. 404.1645  How and when we determine whether the performance accuracy standard is met.

    (a) How we determine performance accuracy. We determine a State 
agency's performance accuracy rate on the basis of decision and 
documentation errors identified in our review of the sample cases.
    (b) Frequency of review. Title II and title XVI initial performance 
accuracy are monitored together on a quarterly basis. The determinations 
as to whether the performance accuracy threshold has been met is made at 
the end of each quarter each year. Quarterly State-by-State combined 
initial performance accuracy rates are compared to the established 
threshold level.



Sec. 404.1650  Action we will take if a State agency does not meet the standards.

    If a State agency does not meet two of the three established 
threshold levels (one of which must be performance accuracy) for two or 
more consecutive calendar quarters, we will notify the State agency in 
writing that it is not meeting the standards. Following our 
notification, we will provide the State agency appropriate performance 
support described in Secs. 404.1660, 404.1661 and 404.1662 for a period 
of up to 12 months.

[56 FR 11020, Mar. 14, 1991]

                   Performance Monitoring and Support



Sec. 404.1660  How we will monitor.

    We will regularly analyze State agency combined title II and title 
XVI initial performance accuracy rate, title II initial processing time, 
and title XVI initial processing time. Within budgeted resources, we 
will also routinely conduct fiscal and administrative management reviews 
and special onsite reviews. A fiscal and administrative management 
review is a fact-finding mission to review particular aspects of State 
agency operations. During these reviews we will also review the quality 
assurance function. This regular monitoring and review program will 
allow us to determine the progress each State is making and the type and 
extent of performance support we will provide to help the State progress 
toward threshold, intermediate, and/or target levels.

[56 FR 11020, Mar. 14, 1991]



Sec. 404.1661  When we will provide performance support.

    (a) Optional support. We may offer, or a State may request, 
performance support at any time that the regular monitoring and review 
process reveals that support could enhance performance. The State does 
not have to be below the initial performance accuracy rate of 90.6 
percent to receive performance support. Support will be offered, or 
granted upon request, based on available resources.
    (b) Mandatory support. (1) We will provide a State agency with 
mandatory performance support if regular monitoring and review reveal 
that two of three threshold levels (one of which must be performance 
accuracy) are not met for two consecutive calendar quarters.
    (2) We may also decide to provide a State agency with mandatory 
performance support if regular monitoring and review reveal that any one 
of the three threshold levels is not met for two consecutive calendar 
quarters. Support will be provided based on available resources.
    (3) The threshold levels are:

[[Page 506]]

    (i) Combined title II and title XVI initial performance accuracy 
rate--90.6 percent,
    (ii) Title II initial processing time--49.5 days, and
    (iii) Title XVI initial processing time--57.9 days.

[56 FR 11020, Mar. 14, 1991]



Sec. 404.1662  What support we will provide.

    Performance support may include, but is not limited to, any or all 
of the following:
    (a) An onsite review of cases processed by the State agency 
emphasizing adherence to written guidelines.
    (b) A request that necessary administrative measures be implemented 
(e.g., filling staffing vacancies, using overtime, assisting with 
training activities, etc.).
    (c) Provisions for Federal personnel to perform onsite reviews, 
conduct training, or perform other functions needed to improve 
performance.
    (d) Provisions for fiscal aid to allow for overtime, temporary 
hiring of additional staff, etc., above the authorized budget.

[56 FR 11020, Mar. 14, 1991]

                           Substantial Failure



Sec. 404.1670  General.

    After a State agency falls below two of three established threshold 
levels, one being performance accuracy, for two consecutive quarters, 
and after the mandatory performance support period, we will give the 
State agency a 3-month adjustment period. During this 3-month period we 
will not require the State agency to meet the threshold levels. 
Following the adjustment period, if the State agency again falls below 
two of three threshold levels, one being performance accuracy, in two 
consecutive quarters during the next 12 months, we will notify the State 
that we propose to find that the State agency has substantially failed 
to comply with our standards and advise it that it may request a hearing 
on that issue. After giving the State notice and an opportunity for a 
hearing, if it is found that a State agency has substantially failed to 
make disability determinations consistent with the Act, our regulations 
or other written guidelines, we will assume partial or complete 
responsibility for performing the disability determination function 
after we have complied with Secs. 404.1690 and 404.1692.

[56 FR 11021, Mar. 14, 1991]



Sec. 404.1671  Good cause for not following the Act, our regulations, or other written guidelines.

    If a State has good cause for not following the Act, our 
regulations, or other written guidelines, we will not find that the 
State agency has substantially failed to meet our standards. We will 
determine if good cause exists. Some of the factors relevant to good 
cause are:
    (a) Disasters such as fire, flood, or civil disorder, that--
    (1) Require the diversion of significant personnel normally assigned 
to the disability determination function, or
    (2) Destroyed or delayed access to significant records needed to 
make accurate disability determinations;
    (b) Strikes of State agency staff or other government or private 
personnel necessary to the performance of the disability determination 
function;
    (c) Sudden and unanticipated workload changes which result from 
changes in Federal law, regulations, or written guidelines, systems 
modification or systems malfunctions, or rapid, unpredictable caseload 
growth for a 6-month period or longer.

[56 FR 11021, Mar. 14, 1991]



Sec. 404.1675  Finding of substantial failure.

    A finding of substantial failure with respect to a State may not be 
made unless and until the State is afforded an opportunity for a 
hearing.

                          Hearings and Appeals



Sec. 404.1680  Notice of right to hearing on proposed finding of substantial failure.

    If, following the mandatory performance support period and the 3-
month adjustment period, a State agency again falls below two of three 
threshold levels (one being performance accuracy) in two consecutive 
quarters in

[[Page 507]]

the succeeding 12 months, we will notify the State in writing that we 
will find that the State agency has substantially failed to meet our 
standards unless the State submits a written request for a hearing with 
the Department of Health and Human Services' Departmental Appeals Board 
within 30 days after receiving the notice. The notice will identify the 
threshold levels that were not met by the State agency, the period 
during which the thresholds were not met and the accuracy and processing 
time levels attained by the State agency during this period. If a 
hearing is not requested, the State agency will be found to have 
substantially failed to meet our standards, and we will implement our 
plans to assume the disability determination function.

[56 FR 11021, Mar. 14, 1991]



Sec. 404.1681  Disputes on matters other than substantial failure.

    Disputes concerning monetary disallowances will be resolved in 
proceedings before the Department of Health and Human Services' 
Departmental Appeals Board if the issue cannot be resolved between us 
and the State. Disputes other than monetary disallowances will be 
resolved through an appeal to the Commissioner of Social Security, who 
will make the final decision. (See Sec. 404.1627.)

[56 FR 11021, Mar. 14, 1991]



Sec. 404.1682  Who conducts the hearings.

    If a hearing is required, it will be conducted by the Health and 
Human Services Departmental Grant Appeals Board (the Board).



Sec. 404.1683  Hearings and appeals process.

    The rules for hearings and appeals before the Board are provided in 
45 CFR part 16. A notice under Sec. 404.1680 of this subpart will be 
considered a ``final written decision'' for purposes of Board review.

             Assumption of Disability Determination Function



Sec. 404.1690  Assumption when we make a finding of substantial failure.

    (a) Notice to State. When we find that substantial failure exists, 
we will notify the State in writing that we will assume responsibility 
for performing the disability determination function from the State 
agency, whether the assumption will be partial or complete, and the date 
on which the assumption will be effective.
    (b) Effective date of assumption. The date of any partial or 
complete assumption of the disability determination function from a 
State agency may not be earlier than 180 days after our finding of 
substantial failure, and not before compliance with the requirements of 
Sec. 404.1692.



Sec. 404.1691  Assumption when State no longer wishes to perform the disability determination function.

    (a) Notice to the Secretary. If a State no longer wishes to perform 
the disability determination function, it will notify us in writing. The 
notice must be from an official authorized to act for the State for this 
purpose. The State will provide an opinion from the State's Attorney 
General verifying the authority of the official who gave the notice.
    (b) Effective date of assumption. The State agency will continue to 
perform whatever activities of the disability determination function it 
is performing at the time the notice referred to in paragraph (a) of 
this section is given for not less than 180 days or, if later, until we 
have complied with the requirements of Sec. 404.1692. For example, if 
the State is not making disability determinations (because we previously 
assumed responsibility for making them) but is performing other 
activities related to the disability determination function at the time 
it gives notice, the State will continue to do these activities until 
the requirements of this paragraph are met. Thereafter, we will assume 
complete responsibility

[[Page 508]]

for performing the disability determination function.



Sec. 404.1692  Protection of State employees.

    (a) Hiring preference. We will develop and initiate procedures to 
implement a plan to partially or completely assume the disability 
determination function from the State agency under Sec. 404.1690 or 
Sec. 404.1691, as appropriate. Except for the State agency's 
administrator, deputy administrator, or assistant administrator (or his 
equivalent), we will give employees of the State agency who are capable 
of performing duties in the disability determination function preference 
over any other persons in filling positions with us for which they are 
qualified. We may also give a preference in hiring to the State agency's 
administrator, deputy administrator, or assistant administrator (or his 
equivalent). We will establish a system for determining the hiring 
priority among the affected State agency employees in those instances 
where we are not hiring all of them.
    (b) Determination by Secretary of Labor. We will not assume 
responsibility for performing the disability determination function from 
a State until the Secretary of Labor determines that the State has made 
fair and equitable arrangements under applicable Federal, State and 
local law to protect the interests of employees who will be displaced 
from their employment because of the assumption and who we will not 
hire.



Sec. 404.1693  Limitation on State expenditures after notice.

    The State agency may not, after it receives the notice referred to 
in Sec. 404.1690, or gives the notice referred to in Sec. 404.1691, make 
any new commitments to spend funds allocated to it for performing the 
disability determination function without the approval of the 
appropriate SSA regional commissioner. The State will make every effort 
to close out as soon as possible all existing commitments that relate to 
performing the disability determination function.



Sec. 404.1694  Final accounting by the State.

    The State will submit its final claims to us as soon as possible, 
but in no event later than 1 year from the effective date of our 
assumption of the disability determination function unless we grant an 
extension of time. When the final claim(s) is submitted, a final 
accounting will be made by the State of any funds paid to the State 
under Sec. 404.1626 which have not been spent or committed prior to the 
effective date of our assumption of the disability determination 
function. Disputes concerning final accounting issues which cannot be 
resolved between the State and us will be resolved in proceedings before 
the Grant Appeals Board as described in 45 CFR part 16.



                  Subpart R--Representation of Parties

    Authority:  Secs. 205(a), 206, and 702(a)(5) of the Social Security 
Act (42 U.S.C. 405(a), 406, and 902(a)(5)).

    Source:  45 FR 52090, Aug. 5, 1980, unless otherwise noted.



Sec. 404.1700  Introduction.

    You may appoint someone to represent you in any of your dealings 
with us. This subpart explains, among other things--
    (a) Who may be your representative and what his or her 
qualifications must be;
    (b) How you appoint a representative;
    (c) The payment of fees to a representative;
    (d) Our rules that representatives must follow; and
    (e) What happens to a representative who breaks the rules.



Sec. 404.1703  Definitions.

    As used in this subpart--
    Past-due benefits means the total amount of benefits payable under 
title II of the Act to all beneficiaries that has accumulated because of 
a favorable administrative or judicial determination or decision, up to 
but not including the month the determination or decision is made.
    Representative means an attorney who meets all of the requirements 
of Sec. 404.1705(a), or a person other than an

[[Page 509]]

attorney who meets all of the requirements of Sec. 404.1705(b), and whom 
you appoint to represent you in dealings with us.
    We, our, or us refers to the Social Security Administration.
    You or your refers to any person claiming a right under the old-age, 
disability, dependents', or survivors' benefits program.



Sec. 404.1705  Who may be your representative.

    (a) Attorney. You may appoint as your representative in dealings 
with us, any attorney in good standing who--
    (1) Has the right to practice law before a court of a State, 
Territory, District, or island possession of the United States, or 
before the Supreme Court or a lower Federal court of the United States;
    (2) Is not disqualified or suspended from acting as a representative 
in dealings with us; and
    (3) Is not prohibited by any law from acting as a representative.
    (b) Person other than attorney. You may appoint any person who is 
not an attorney to be your representative in dealings with us if he or 
she--
    (1) Is generally known to have a good character and reputation;
    (2) Is capable of giving valuable help to you in connection with 
your claim;
    (3) Is not disqualified or suspended from acting as a representative 
in dealings with us; and
    (4) Is not prohibited by any law from acting as a representative.



Sec. 404.1706  Notification of options for obtaining attorney representation.

    If you are not represented by an attorney and we make a 
determination or decision that is subject to the administrative review 
process provided under subpart J of this part and it does not grant all 
of the benefits or other relief you requested or it adversely affects 
any entitlement to benefits that we have established or may establish 
for you, we will include with the notice of that determination or 
decision information about your options for obtaining an attorney to 
represent you in dealing with us. We will also tell you that a legal 
services organization may provide you with legal representation free of 
charge if you satisfy the qualifying requirements applicable to that 
organization.

[58 FR 64886, Dec. 10, 1993]



Sec. 404.1707  Appointing a representative.

    We will recognize a person as your representative if the following 
things are done:
    (a) You sign a written notice stating that you want the person to be 
your representative in dealings with us.
    (b) That person signs the notice, agreeing to be your 
representative, if the person is not an attorney. An attorney does not 
have to sign a notice of appointment.
    (c) The notice is filed at one of our offices if you have initially 
filed a claim or have requested reconsideration; with an administrative 
law judge if you requested a hearing; or with the Appeals Council if you 
have requested a review of the administrative law judge's decision.



Sec. 404.1710  Authority of a representative.

    (a) What a representative may do. Your representative may, on your 
behalf--
    (1) Obtain information about your claim to the same extent that you 
are able to do;
    (2) Submit evidence;
    (3) Make statements about facts and law; and
    (4) Make any request or give any notice about the proceedings before 
us.
    (b) What a representative may not do. A representative may not sign 
an application on behalf of a claimant for rights or benefits under 
title II of the Act unless authorized to do so under Sec. 404.612.



Sec. 404.1715  Notice or request to a representative.

    (a) We shall send your representative--
    (1) Notice and a copy of any administrative action, determination, 
or decision; and
    (2) Requests for information or evidence.
    (b) A notice or request sent to your representative, will have the 
same force and effect as if it had been sent to you.

[[Page 510]]



Sec. 404.1720  Fee for a representative's services.

    (a) General. A representative may charge and receive a fee for his 
or her services as a representative only as provided in paragraph (b) of 
this section.
    (b) Charging and receiving a fee. (1) The representative must file a 
written request with us before he or she may charge or receive a fee for 
his or her services.
    (2) We decide the amount of the fee, if any, a representative may 
charge or receive.
    (3) A representative shall not charge or receive any fee unless we 
have approved it, and he or she shall not charge or receive any fee that 
is more than the amount we approve. This rule applies whether the fee is 
charged to or received from you or from someone else.
    (4) If the representative is an attorney and the claimant is 
entitled to past-due benefits, we will pay the authorized fee, or a part 
of the authorized fee, directly to the attorney out of the past-due 
benefits, subject to the limitations described in Sec. 404.1730(b)(1). 
If the representative is not an attorney, we assume no responsibility 
for the payment of any fee that we have authorized.
    (c) Notice of fee determination. We shall mail to both you and your 
representative at your last known address a written notice of what we 
decide about the fee. We shall state in the notice--
    (1) The amount of the fee that is authorized;
    (2) How we made that decision;
    (3) That we are not responsible for paying the fee, except when we 
may pay an attorney from past-due benefits; and
    (4) That within 30 days of the date of the notice, either you or 
your representative may request us to review the fee determination.
    (d) Review of fee determination--(1) Request filed on time. We will 
review the decision we made about a fee if either you or your 
representative files a written request for the review at one of our 
offices within 30 days after the date of the notice of the fee 
determination. Either you or your representative, whoever requests the 
review, shall mail a copy of the request to the other person. An 
authorized official of the Social Security Administration who did not 
take part in the fee determination being questioned will review the 
determination. This determination is not subject to further review. The 
official shall mail a written notice of the decision made on review both 
to you and to your representative at your last known address.
    (2) Request not filed on time. (i) If you or your representative 
requests a review of the decision we made about a fee, but does so more 
than 30 days after the date of the notice of the fee determination, 
whoever makes the request shall state in writing why it was not filed 
within the 30-day period. We will review the determination if we decide 
that there was good cause for not filing the request on time.
    (ii) Some examples of good cause follow:
    (A) Either you or your representative was seriously ill and the 
illness prevented you or your representative from contacting us in 
person or in writing.
    (B) There was a death or serious illness in your family or in the 
family of your representative.
    (C) Material records were destroyed by fire or other accidental 
cause.
    (D) We gave you or your representative incorrect or incomplete 
information about the right to request review.
    (E) You or your representative did not timely receive notice of the 
fee determination.
    (F) You or your representative sent the request to another 
government agency in good faith within the 30-day period, and the 
request did not reach us until after the period had ended.
    (3) Payment of fees. We assume no responsibility for the payment of 
a fee based on a revised determination if the request for administrative 
review was not filed on time.



Sec. 404.1725  Request for approval of a fee.

    (a) Filing a request. In order for your representative to obtain 
approval of a fee for services he or she performed in dealings with us, 
he or she shall file a written request with one of our offices.

[[Page 511]]

This should be done after the proceedings in which he or she was a 
representative are completed. The request must contain--
    (1) The dates the representative's services began and ended;
    (2) A list of the services he or she gave and the amount of time he 
or she spent on each type of service;
    (3) The amount of the fee he or she wants to charge for the 
services;
    (4) The amount of fee the representative wants to request or charge 
for his or her services in the same matter before any State or Federal 
court;
    (5) The amount of and a list of any expenses the representative 
incurred for which he or she has been paid or expects to be paid;
    (6) A description of the special qualifications which enabled the 
representative, if he or she is not an attorney, to give valuable help 
in connection with your claim; and
    (7) A statement showing that the representative sent a copy of the 
request for approval of a fee to you.
    (b) Evaluating a request for approval of a fee. (1) When we evaluate 
a representative's request for approval of a fee, we consider the 
purpose of the social security program, which is to provide a measure of 
economic security for the beneficiaries of the program, together with--
    (i) The extent and type of services the representative performed;
    (ii) The complexity of the case;
    (iii) The level of skill and competence required of the 
representative in giving the services;
    (iv) The amount of time the representative spent on the case;
    (v) The results the representative achieved;
    (vi) The level of review to which the claim was taken and the level 
of the review at which the representative became your representative; 
and
    (vii) The amount of fee the representative requests for his or her 
services, including any amount authorized or requested before, but not 
including the amount of any expenses he or she incurred.
    (2) Although we consider the amount of benefits, if any, that are 
payable, we do not base the amount of fee we authorize on the amount of 
the benefit alone, but on a consideration of all the factors listed in 
this section. The benefits payable in any claim are determined by 
specific provisions of law and are unrelated to the efforts of the 
representative. We may authorize a fee even if no benefits are payable.



Sec. 404.1728  Proceedings before a State or Federal court.

    (a) Representation of a party in court proceedings. We shall not 
consider any service the representative gave you in any proceeding 
before a State or Federal court to be services as a representative in 
dealings with us. However, if the representative also has given service 
to you in the same connection in any dealings with us, he or she must 
specify what, if any, portion of the fee he or she wants to charge is 
for services performed in dealings with us. If the representative 
charges any fee for those services, he or she must file the request and 
furnish all of the information required by Sec. 404.1725.
    (b) Attorney fee allowed by a Federal court. If a Federal court in 
any proceeding under title II of the Act makes a judgment in favor of a 
claimant who was represented before the court by an attorney, and the 
court, under section 206(b) of the Act, allows to the attorney as part 
of its judgment a fee not in excess of 25 percent of the total of past-
due benefits to which the claimant is entitled by reason of the 
judgment, we may pay the attorney the amount of the fee out of, but not 
in addition to, the amount of the past-due benefits payable. We will not 
certify for direct payment any other fee your representative may 
request.



Sec. 404.1730  Payment of fees.

    (a) Fees allowed by a Federal court. We will pay a representative 
who is an attorney, out of the claimant's past-due benefits, the amount 
of fee allowed by a Federal court in a proceeding under title II of the 
Act. The payment we make to the attorney is subject to the limitations 
described in paragraph (b)(1) of this section.
    (b) Fees we may authorize--(1) Attorneys. Except as provided in 
paragraph (c) of this section, if we make a determination or decision in 
favor of a claimant who was represented by an

[[Page 512]]

attorney, and as a result of the determination or decision past-due 
benefits are payable, we will pay the attorney out of the past-due 
benefits the smallest of--
    (i) Twenty-five percent of the total of the past-due benefits;
    (ii) The amount of the fee that we set; or
    (iii) The amount agreed upon between the attorney and the claimant 
represented.
    (2) Persons other than attorneys. If the representative is not an 
attorney, we assume no responsibility for the payment of any fee that we 
have authorized. We will not deduct the fee from any benefits payable to 
the claimant represented.
    (c) Time limit for filing request for approval of attorney fee. (1) 
In order to receive direct payment of a fee from a claimant's past-due 
benefits, an attorney should file a request for approval of a fee, or 
written notice of the intent to file a request, at one of our offices 
within 60 days of the date the notice of the favorable determination is 
mailed.
    (2)(i) If no request is filed within 60 days of the date the notice 
of the favorable determination is mailed, we will mail a written notice 
to the attorney and to the claimant, at their last known addresses. The 
notice will inform the attorney and the claimant that unless the 
attorney files, within 20 days from the date of the notice, a written 
request for approval of a fee under Sec. 404.1725, or a written request 
for an extension of time, we will pay all the past-due benefits to the 
claimant.
    (ii) The attorney must send the claimant a copy of any request made 
to us for an extension of time. If the request is not filed within 20 
days of the date of the notice, or by the last day of any extension we 
approved, we will pay all past-due benefits to the claimant. Any fee the 
attorney charges after that time must be approved by us, but the 
collection of any approved fee is a matter between the attorney and the 
claimant represented.



Sec. 404.1735  Services in a proceeding under title II of the Act.

    Services provided a claimant in any dealing with us under title II 
of the Act consist of services performed for that claimant in connection 
with any claim he or she may have before the Secretary of Health, and 
Human Services under title II of the Act. These services include any in 
connection with any asserted right a claimant may have calling for an 
initial or reconsidered determination by us, and a decision or action by 
an administrative law judge or by the Appeals Council.



Sec. 404.1740  Rules governing representatives.

    No attorney or other person representing a claimant shall--
    (a) With intent to defraud, in any manner willfully and knowingly 
deceive, mislead, or threaten by word, circular, letter, or 
advertisement, either oral or written, any claimant or prospective 
claimant or beneficiary regarding benefits, or other initial or 
continued right under the Act;
    (b) Knowingly charge or collect, or make any agreement to charge or 
collect, directly or indirectly, any fee in any amount in excess of that 
allowed by us or by the court;
    (c) Knowingly make or participate in the making or presentation of 
any false statement, representation, or claim about any material fact 
affecting the rights of any person under title II of the Act; or
    (d) Divulge, except as may be authorized by regulations prescribed 
by us, any information we furnish or disclose about the claim or 
prospective claim of another person.



Sec. 404.1745  What happens to a representative who breaks the rules.

    The Deputy Commissioner for Programs, or his or her designee, may 
begin proceedings to suspend or disqualify a person from acting as a 
representative in dealings with us if it appears that he or she--
    (a) Has violated any of the rules in Sec. 404.1740;
    (b) Has been convicted of a violation under section 206 of the Act; 
or
    (c) Has otherwise refused to comply with our rules and regulations 
on representing claimants in dealings with us.

[45 FR 52090, Aug. 5, 1980, as amended at 56 FR 24131, May 29, 1991]

[[Page 513]]



Sec. 404.1750  Notice of charges against a representative.

    (a) The Deputy Commissioner for Programs, or his or her designee, 
will prepare a notice containing a statement of charges that constitutes 
the basis for the proceeding against the representative.
    (b) We will send this notice to the representative either by 
certified or registered mail, to his or her last known address, or by 
personal delivery.
    (c) We will advise the representative to file an answer, within 30 
days from the date of the notice, or from the date the notice was 
delivered personally, stating why he or she should not be suspended or 
disqualified from acting as a representative in dealings with us.
    (d) The Deputy Commissioner for Programs, or his or her designee, 
may extend the 30-day period for good cause.
    (e) The representative must--
    (1) Answer the notice in writing under oath (or affirmation); and
    (2) File the answer with the Social Security Administration, Office 
of Hearings and Appeals, Attention: Special Counsel Staff, within the 
30-day time period.
    (f) If the representative does not file an answer within the 30-day 
time period, he or she does not have the right to present evidence, 
except as may be provided in Sec. 404.1765(g).

[45 FR 52090, Aug. 5, 1980, as amended at 56 FR 24131, May 29, 1991]



Sec. 404.1755  Withdrawing charges against a representative.

    We may withdraw charges against a representative. We will do this if 
the representative files an answer, or we obtain evidence, that 
satisfies us that there is reasonable doubt about whether he or she 
should be suspended or disqualified from acting as a representative in 
dealings with us. If we withdraw the charges, we shall notify the 
representative by mail at his or her last known address.



Sec. 404.1765  Hearing on charges.

    (a) Scheduling the hearing. If the Deputy Commissioner for Programs, 
or his or her designee, does not take action to withdraw the charges 
within 15 days after the date on which the representative filed an 
answer, we will hold a hearing and make a decision on the charges.
    (b)(1) Hearing officer. The Associate Commissioner for Hearings and 
Appeals, or his or her designee, shall assign an administrative law 
judge, designated to act as a hearing officer, to hold a hearing on the 
charges.
    (2) No hearing officer shall hold a hearing in a case in which he or 
she is prejudiced or partial about any party, or has any interest in the 
matter.
    (3) If the representative or any party to the hearing objects to the 
hearing officer who has been named to hold the hearing, we must be 
notified at the earliest opportunity. The hearing officer shall consider 
the objection(s) and either proceed with the hearing or withdraw from 
it.
    (4) If the hearing officer withdraws from the hearing, another one 
will be named.
    (5) If the hearing officer does not withdraw, the representative or 
any other person objecting may, after the hearing, present his or her 
objections to the Appeals Council explaining why he or she believes the 
hearing officer's decision should be revised or a new hearing held by 
another administrative law judge designated to act as a hearing officer.
    (c) Time and place of hearing. The hearing officer shall mail the 
parties a written notice of the hearing at their last known addresses, 
at least 20 days before the date set for the hearing.
    (d) Change of time and place for hearing. (1) The hearing officer 
may change the time and place for the hearing. This may be done either 
on his or her own initiative, or at the request of the representative or 
the other party to the hearing.
    (2) The hearing officer may adjourn or postpone the hearing.
    (3) The hearing officer may reopen the hearing for the receipt of 
additional evidence at any time before mailing notice of the decision.
    (4) The hearing officer shall give the representative and the other 
party to the hearing reasonable notice of any change in the time or 
place for the hearing, or of an adjournment or reopening of the hearing.

[[Page 514]]

    (e) Parties. The representative against whom charges have been made 
is a party to the hearing. The Deputy Commissioner for Programs, or his 
or her designee, shall also be a party to the hearing.
    (f) Subpoenas. (1) The representative or the other party to the 
hearing may request the hearing officer to issue a subpoena for the 
attendance and testimony of witnesses and for the production of books, 
records, correspondence, papers, or other documents that are material to 
any matter being considered at the hearing. The hearing officer may, on 
his or her own initiative, issue subpoenas for the same purposes when 
the action is reasonably necessary for the full presentation of the 
facts.
    (2) The representative or the other party who wants a subpoena 
issued shall file a written request with the hearing officer. This must 
be done at least 5 days before the date set for the hearing. The request 
must name the documents to be produced, and describe the address or 
location in enough detail to permit the witnesses or documents to be 
found.
    (3) The representative or the other party who wants a subpoena 
issued shall state in the request for a subpoena the material facts that 
he or she expects to establish by the witness or document, and why the 
facts could not be established by the use of other evidence which could 
be obtained without use of a subpoena.
    (4) We will pay the cost of the issuance and the fees and mileage of 
any witness subpoenaed, as provided in section 205(d) of the Act.
    (g) Conduct of the hearing. (1) The hearing officer shall make the 
hearing open to the representative, to the other party, and to any 
persons the hearing officer or the parties consider necessary or proper. 
The hearing officer shall inquire fully into the matters being 
considered, hear the testimony of witnesses, and accept any documents 
that are material.
    (2) If the representative did not file an answer to the charges, he 
or she has no right to present evidence at the hearing. The hearing 
officer may make or recommend a decision on the basis of the record, or 
permit the representative to present a statement about the sufficiency 
of the evidence or the validity of the proceedings upon which the 
suspension or disqualification, if it occurred, would be based.
    (3) If the representative did not file an answer to the charges, and 
if the hearing officer believes that there is material evidence 
available that was not presented at the hearing, the hearing officer may 
at any time before mailing notice of the hearing decisions reopen the 
hearing to accept the additional evidence.
    (4) The hearing officer has the right to decide the order in which 
the evidence and the allegations will be presented and the conduct of 
the hearing.
    (h) Evidence. The hearing officer may accept evidence at the 
hearing, even though it is not admissible under the rules of evidence 
that apply to Federal court procedure.
    (i) Witnesses. Witnesses who testify at the hearing shall do so 
under oath or affirmation. Either the representative or a person 
representing him or her may question the witnesses. The other party and 
that party's representative must also be allowed to question the 
witnesses. The hearing officer may also ask questions as considered 
necessary, and shall rule upon any objection made by either party about 
whether any question is proper.
    (j) Oral and written summation. (1) The hearing officer shall give 
the representative and the other party a reasonable time to present oral 
summation and to file briefs or other written statements about proposed 
findings of fact and conclusions of law if the parties request it.
    (2) The party that files briefs or other written statements shall 
provide enough copies so that they may be made available to any other 
party to the hearing who requests a copy.
    (k) Record of hearing. In all cases, the hearing officer shall have 
a complete record of the proceedings at the hearing made.
    (l) Representation. The representative, as the person charged, may 
appear in person and may be represented by an attorney or other 
representative.
    (m) Failure to appear. If the representative or the other party to 
the hearing fails to appear after being notified of the time and place, 
the hearing

[[Page 515]]

officer may hold the hearing anyway so that the party present may offer 
evidence to sustain or rebut the charges. The hearing officer shall give 
the party who failed to appear an opportunity to show good cause for 
failure to appear. If the party fails to show good cause, he or she is 
considered to have waived the right to be present at the hearing. If the 
party shows good cause, the hearing officer may hold a supplemental 
hearing.
    (n) Dismissal of charges. The hearing officer may dismiss the 
charges in the event of the death of the representative.
    (o) Cost of transcript. If the representative or the other party to 
a hearing requests a copy of the transcript of the hearing, the hearing 
officer will have it prepared and sent to the party upon payment of the 
cost, unless the payment is waived for good cause.

[45 FR 52090, Aug. 5, 1980, as amended at 56 FR 24131, 24132, May 29, 
1991]



Sec. 404.1770  Decision by hearing officer.

    (a) General. (1) After the close of the hearing, the hearing officer 
shall issue a decision or certify the case to the Appeals Council. The 
decision must be in writing, will contain findings of fact and 
conclusions of law, and be based upon the evidence of record.
    (2) If the hearing officer finds that the charges against the 
representative have been sustained, he or she shall either--
    (i) Suspend the representative for a specified period of not less 
than 1 year, nor more than 5 years, from the date of the decision; or
    (ii) Disqualify the representative from acting as a representative 
in dealings with us until he or she may be reinstated under 
Sec. 404.1799.
    (3) The hearing officer shall mail a copy of the decision to the 
representative at his or her last known address and to the Deputy 
Commissioner (Operations) or the Director (or Deputy Director) of the 
Office of Insurance Programs. The notice will inform the parties of the 
right to request the Appeals Council to review the decision.
    (b) Effect of hearing officer's decision. (1) The hearing officer's 
decision is final and binding unless reversed or modified by the Appeals 
Council upon review.
    (2) If the final decision is that a person is disqualified from 
being a representative in dealings with us, he or she will not be 
permitted to represent anyone in dealings with us until authorized to do 
so under the provisions of Sec. 404.1799.
    (3) The hearing officer shall mail a copy of the decision to the 
parties at their last known addresses. The notice will inform the 
parties of the right to request the Appeals Council to review the 
decision.

[45 FR 52090, Aug. 5, 1980, as amended at 56 FR 24132, May 29, 1991]



Sec. 404.1775  Requesting review of the hearing officer's decision.

    (a) General. After the hearing officer issues a decision, either the 
representative or the other party to the hearing may ask the Appeals 
Council to review the decision.
    (b) Time and place of filing request for review. The party 
requesting review shall file the request for review in writing with the 
Appeals Council within 30 days from the date the hearing officer mailed 
the notice. The party requesting review shall certify that a copy of the 
request for review and of any documents that are submitted have been 
mailed to the opposing party.



Sec. 404.1776  Assignment of request for review of the hearing officer's decision.

    Upon receipt of a request for review of the hearing officer's 
decision, the matter will be assigned to a panel consisting of three 
members of the Appeals Council none of whom shall be the Chair of the 
Appeals Council. The panel shall jointly consider and rule by majority 
opinion on the request for review of the hearing officer's decision, 
including a determination to dismiss the request for review. Matters 
other than a final disposition of the request for review may be disposed 
of by the member designated chair of the panel.

[56 FR 24132, May 29, 1991]



Sec. 404.1780  Appeals Council's review of hearing officer's decision.

    (a) Upon request, the Appeals Council shall give the parties a 
reasonable time

[[Page 516]]

to file briefs or other written statements as to fact and law, and to 
appear before the Appeals Council to present oral argument.
    (b) If a party files a brief or other written statement with the 
Appeals Council, he or she shall send a copy to the opposing party and 
certify that the copy has been sent.



Sec. 404.1785  Evidence permitted on review.

    (a) General. Generally, the Appeals Council will not consider 
evidence in addition to that introduced at the hearing. However, if the 
Appeals Council believes that the evidence offered is material to an 
issue it is considering, the evidence will be considered.
    (b) Individual charged filed an answer. (1) When the Appeals Council 
believes that additional material evidence is available, and the 
representative has filed an answer to the charges, the Appeals Council 
shall require that the evidence be obtained. The Appeals Council may 
name an administrative law judge or a member of the Appeals Council to 
receive the evidence.
    (2) Before additional evidence is admitted into the record, the 
Appeals Council shall mail a notice to the parties, telling them that 
evidence about certain issues will be obtained, unless the notice is 
waived. The Appeals Council shall give each party a reasonable 
opportunity to comment on the evidence and to present other evidence 
that is material to an issue it is considering.
    (c) Individual charged did not file an answer. If the representative 
did not file an answer to the charges, the Appeals Council will not 
permit the introduction of evidence that was not considered at the 
hearing.



Sec. 404.1790  Appeals Council's decision.

    (a) The Appeals Council shall base its decision upon the evidence in 
the hearing record and any other evidence it may permit on review. The 
Appeals Council shall either--
    (1) Affirm, reverse, or modify the hearing officer's decision; or
    (2) Return a case to the hearing officer when the Appeals Council 
considers it appropriate.
    (b) The Appeals Council, in changing a hearing officer's decision to 
suspend a representative for a specified period, shall in no event 
reduce the period of suspension to less than 1 year. In modifying a 
hearing officer's decision to disqualify a representative, the Appeals 
Council shall in no event impose a period of suspension of less than 1 
year.
    (c) If the Appeals Council affirms or changes a hearing officer's 
decision, the period of suspension or the disqualification is effective 
from the date of the Appeals Council's decision.
    (d) If the hearing officer did not impose a period of suspension or 
a disqualification, and the Appeals Council decides to impose one or the 
other, the suspension or disqualification is effective from the date of 
the Appeals Council's decision.
    (e) The Appeals Council shall make its decision in writing and shall 
mail a copy of the decision to the parties at their last known 
addresses.

[45 FR 52090, Aug. 5, 1980, as amended at 56 FR 24132, May 29, 1991]



Sec. 404.1795  When the Appeals Council will dismiss a request for review.

    The Appeals Council may dismiss a request for the review of any 
proceeding to suspend or disqualify a representative in any of the 
following circumstances:
    (a) Upon request of party. The Appeals Council may dismiss a request 
for review upon written request of the party or parties who filed the 
request if there is no other party who objects to the dismissal.
    (b) Death of party. The Appeals Council may dismiss a request for 
review in the event of the death of the representative.
    (c) Request for review not timely filed. The Appeals Council will 
dismiss a request for review if a party failed to file a request for 
review within the 30-day time period and the Appeals Council does not 
extend the time for good cause.



Sec. 404.1797  Reinstatement after suspension--period of suspension expired.

    We shall automatically allow a person to serve again as a 
representative in dealings with us at the end of any suspension.

[[Page 517]]



Sec. 404.1799  Reinstatement after suspension or disqualification--period of suspension not expired.

    (a) After more than one year has passed, a person who has been 
suspended or disqualified, may ask the Appeals Council for permission to 
serve as a representative again.
    (b) The suspended or disqualified person shall submit any evidence 
he or she wishes to have considered along with the request to be allowed 
to serve as a representative again.
    (c) The Appeals Council shall allow the Deputy Commissioner for 
Programs, or his or her designee, upon notification of receipt of the 
request, 30 days in which to present a written report of any experiences 
with the suspended or disqualified person subsequent to that person's 
suspension or disqualification. The Appeals Council shall make available 
to the suspended or disqualified person a copy of the report.
    (d) The Appeals Council shall not grant the request unless it is 
reasonably satisfied that the person will in the future act according to 
the provisions of section 206(a) of the Act, and to our rules and 
regulations.
    (e) The Appeals Council shall mail a notice of its decision on the 
request to the suspended or disqualified person. It shall also mail a 
copy to the Deputy Commissioner for Programs.
    (f) If the Appeals Council decides not to grant the request, it 
shall not consider another request before the end of 1 year from the 
date of the notice of the previous denial.

[45 FR 52090, Aug. 5, 1980, as amended at 56 FR 24132, May 29, 1991]



                      Subpart S--Payment Procedures

    Authority:  Secs. 205 (a) and (n), 207, 702(a)(5), and 708(a) of the 
Social Security Act (42 U.S.C. 405 (a) and (n), 407, 902(a)(5) and 
909(a)).

    Source:  45 FR 52095, Aug. 5, 1980, unless otherwise noted.



Sec. 404.1800  Introduction.

    After we have made a determination or decision that you are entitled 
to benefits under title II of the Act, we begin paying those benefits to 
you as soon as possible. This subpart explains--
    (a) What we must do so that your benefits begin promptly;
    (b) When and how you may request that payment of benefits be 
expedited;
    (c) When we may cause your benefits to be withheld;
    (d) Our obligation not to assign or transfer your benefits to 
someone; and
    (e) When we will use one check to pay benefits to two or more 
persons in a family.



Sec. 404.1805  Paying benefits.

    (a) As soon as possible after we have made a determination or 
decision that you are entitled to benefits, we certify to the Secretary 
of the Treasury, who is the Managing Trustee of the Trust Funds--
    (1) Your name and address, or the name and address of the person to 
be paid if someone receives your benefits on your behalf as a 
representative payee;
    (2) The amount of the payment or payments to be made from the 
appropriate Trust Fund; and
    (3) The time at which the payment or payments should be made in 
accordance with Sec. 404.1807.
    (b) Under certain circumstances when you have had railroad 
employment, we will certify the information to the Railroad Retirement 
Board.

[45 FR 52095, Aug. 5, 1980, as amended at 62 FR 6120, Feb. 11, 1997]

    Effective Date Note:  At 62 FR 6120, Feb. 11, 1997, in 
Sec. 404.1805, paragraph (a)(3) was revised, effective May 1, 1997. For 
the convenience of the user, the superseded text is set forth as 
follows:

404.1805  Paying benefits.

    (a) * * *

                                * * * * *

    (3) The time at which the payment or payments should be made.

                                * * * * *



Sec. 404.1807  Monthly payment day.

    (a) General. Once we have made a determination or decision that you 
are entitled to recurring monthly benefits, you will be assigned a 
monthly payment day. Thereafter, any recurring

[[Page 518]]

monthly benefits which are payable to you will be certified to the 
Managing Trustee for delivery on or before that day of the month as part 
of our certification under Sec. 404.1805(a)(3). Except as provided in 
paragraphs (c)(2) through (c)(6) of this section, once you have been 
assigned a monthly payment day, that day will not be changed.
    (b) Assignment of payment day. (1) We will assign the same payment 
day for all individuals who receive benefits on the earnings record of a 
particular insured individual.
    (2) The payment day will be selected based on the day of the month 
on which the insured individual was born. Insured individuals born on 
the 1st through the 10th of the month will be paid on the second 
Wednesday of each month. Insured individuals born on the 11th through 
the 20th of the month will be paid on the third Wednesday of each month. 
Insured individuals born after the 20th of the month will be paid on the 
fourth Wednesday of each month. See paragraph (c) of this section for 
exceptions.
    (3) We will notify you in writing of the particular monthly payment 
day that is assigned to you.
    (c) Exceptions. (1) If you or any other person became entitled to 
benefits on the earnings record of the insured individual based on an 
application filed before May 1, 1997, you will continue to receive your 
benefits on the 3rd day of the month (but see paragraph (c)(6) of this 
section). All persons who subsequently become entitled to benefits on 
that earnings record will be assigned to the 3rd day of the month as the 
monthly payment day.
    (2) If you or any other person become entitled to benefits on the 
earnings record of the insured individual based on an application filed 
after April 30, 1997, and also become entitled to Supplemental Security 
Income (SSI) benefits or have income which is deemed to an SSI 
beneficiary (per Sec. 416.1160), all persons who are or become entitled 
to benefits on that earnings record will be assigned to the 3rd day of 
the month as the monthly payment day. We will notify you in writing if 
your monthly payment day is being changed to the 3rd of the month due to 
this provision.
    (3) If you or any other person become entitled to benefits on the 
earnings record of the insured individual based on an application filed 
after April 30, 1997, and also reside in a foreign country, all persons 
who are or become entitled to benefits on that earnings record will be 
assigned to the 3rd day of the month as the monthly payment day. We will 
notify you in writing if your monthly payment day is being changed to 
the 3rd of the month due to this provision.
    (4) If you or any other person become entitled on the earnings 
record of the insured individual based on an application filed after 
April 30, 1997, and are not entitled to SSI but are or become eligible 
for the State where you live to pay your Medicare premium under the 
provisions of section 1843 of the Act, all persons who are or become 
entitled to benefits on that earnings record will be assigned to the 3rd 
day of the month as the monthly payment day. We will notify you in 
writing if your monthly payment day is being changed to the 3rd of the 
month due to this provision.
    (5) After April 30, 1997, all individuals who become entitled on one 
record and later entitled on another record, without a break in 
entitlement, will be paid all benefits to which they are entitled no 
later than their current payment day. Individuals who are being paid 
benefits on one record on the 3rd of the month, and who become entitled 
on another record without a break in entitlement, will continue to 
receive all benefits on the 3rd of the month.
    (6) If the day regularly scheduled for the delivery of your benefit 
payment falls on a Saturday, Sunday, or Federal legal holiday, you will 
be paid on the first preceding day that is not a Saturday, Sunday, or 
Federal legal holiday.

[62 FR 6120, Feb. 11, 1997]

    Effective Date Note:  At 62 FR 6120, Feb. 11, 1997, Sec. 404.1807 
was added, effective May 1, 1997.



Sec. 404.1810  Expediting benefit payments.

    (a) General. We have established special procedures to expedite the 
payment of benefits in certain initial and subsequent claims. This 
section tells

[[Page 519]]

how you may request an expedited payment and when we will be able to 
hasten your payments by means of this process.
    (b) Applicability of section. (1) This section applies to monthly 
benefits payable under title II of the Act, except as indicated in 
paragraph (b)(2) of this section; and to those cases where we certify 
information to the Railroad Retirement Board.
    (2) This section does not apply--
    (i) If an initial determination has been made and a request for a 
reconsideration, a hearing, a review by the Appeals Council, or review 
by a Federal court is pending on any issue of entitlement to or payment 
of a benefit;
    (ii) To any benefit for which a check has been cashed; or
    (iii) To any benefit based on an alleged disability.
    (c) Request for payment. (1) You shall submit to us a written 
request for payment of benefits in accordance with paragraph (c)(2) or 
(c)(3) of this section. Paragraph (c)(2) of this section applies if you 
were receiving payments regularly and you then fail to receive payment 
for one or more months. Paragraph (c)(3) of this section applies if we 
have not made a determination about your entitlement to benefits, or if 
we have suspended or withheld payment due, for example, to excess 
earnings or recovery of an overpayment.
    (2) If you received a regular monthly benefit in the month before 
the month in which a payment was allegedly due, you may make a written 
request for payment any time 30 days after the 15th day of the month in 
which the payment was allegedly due. If you request is made before the 
end of the 30-day period, we will consider it to have been made at the 
end of the period.
    (3)(i) If you did not receive a regular monthly benefit in the month 
before the month in which a payment was allegedly due, you may make a 
written request for payment any time 90 days after the later of--
    (A) The date on which the benefit is alleged to have been due; or
    (B) The date on which you furnished us the last information we 
requested from you.
    (ii) If your request is made before the end of the 90-day period we 
will consider it to have been made at the end of the period.
    (d) Certification for payment. If we find that benefits are due, we 
shall certify the benefits for payment in sufficient time to permit the 
payment to be made within 15 days after the request for expedited 
payment is made, or considered to have been made, as provided in 
paragraph (c) of this section.
    (e) Preliminary certification for payment. If we determine that 
there is evidence, although additional evidence may be required for a 
final decision, that a monthly benefit due to you in a particular month 
was not paid, we may make preliminary certification of payment even 
though the 30-day or 90-day periods described in paragraph (c) of this 
section have not elapsed.



Sec. 404.1815  Withholding certification or payments.

    (a) When certification may be withheld. After a determination or 
decision, we may withhold certification to the Managing Trustee, or, if 
we have already made certification, we may notify the Managing Trustee 
to withhold payments. We may do this if a question about the validity of 
the payment or payments to be made under the determination or decision 
arises as the result of one of the following events:
    (1) A reconsideration (whether at the request of a claimant or on 
our own motion), hearing, or review is being conducted, or a civil 
action has been filed in a Federal district court concerning the 
determination or decision.
    (2) An application or request is pending concerning the payment of 
benefits or a lump sum to another person, and the application or request 
is inconsistent, in whole or in part, with the payment or payments under 
the determination or decision.
    (b) When certification will not be withheld. We will not withhold 
certification or payment as explained in paragraph (a) of this section 
unless evidence is submitted with the request or application that is 
sufficient to raise a reasonable question about the validity of the 
payment or payments under the determination or decision. We will not 
withhold certification of any amount of the payment or payments not in 
question. Your acceptance of any payment or

[[Page 520]]

payments will not affect your right to reconsideration, hearing, or 
review about any additional payment or payments you may claim.



Sec. 404.1820  Transfer or assignment of payments.

    (a) General. We shall not certify payment to--
    (1) Any person designated as your assignee or transferee; or
    (2) Any person claiming payment because of an execution, levy, 
attachment, garnishment, or other legal process, or because of any 
bankruptcy or insolvency proceeding against or affecting you.
    (b) Enforcement of a child support or alimony obligation. If you 
have a legal obligation to provide child support or make alimony 
payments and legal process is issued to enforce this obligation, the 
provisions of paragraph (a) of this section do not apply.



Sec. 404.1825  Joint payments to a family.

    (a) Two or more beneficiaries in same family. If an amount is 
payable under title II of the Act for any month to two or more persons 
who are members of the same family, we may certify any two or more of 
the individuals for joint payment of the total benefits payable to them 
for the month.
    (b) Joint payee dies before cashing a check. (1) If a check has been 
issued for joint payment to an individual and spouse residing in the 
same household, and one of the joint payees dies before the check has 
been cashed, we may authorize the surviving payee to cash the check. We 
make the authorization by placing on the face of the check a stamped 
legend signed by an official of the Social Security Administration or 
the Treasury Disbursing Office redesignating the survivor as the payee 
of the check.
    (2) If the uncashed check represents benefits for a month after the 
month of death, we will not authorize the surviving payee to cash the 
check unless the proceeds of the check are necessary to meet the 
ordinary and necessary living expenses of the surviving payee.
    (c) Adjustment or recovery of overpayment. If a check representing 
payment of benefits to an individual and spouse residing in the same 
household is cashed by the surviving payee under the authorization in 
paragraph (b) of this section, and the amount of the check exceeds the 
amount to which the surviving payee is entitled, we shall make 
appropriate adjustment or recovery of the excess amount.



                   Subpart T--Totalization Agreements

    Authority:  Secs. 205(a), 233, and 702(a)(5) of the Social Security 
Act (42 U.S.C. 405(a), 433, and 902(a)(5)).

    Source:  44 FR 42964, July 23, 1979, unless otherwise noted.

                           General Provisions



Sec. 404.1901  Introduction.

    (a) Under section 233 of the Social Security Act, the President may 
enter into an agreement establishing a totalization arrangement between 
the social security system of the United States and the social security 
system of a foreign country. An agreement permits entitlement to and the 
amount of old-age, survivors, disability, or derivative benefits to be 
based on a combination of a person's periods of coverage under the 
social security system of the United States and the social security 
system of the foreign country. An agreement also provides for the 
precluding of dual coverage and dual social security taxation for work 
covered under both systems. An agreement may provide that the provisions 
of the social security system of each country will apply equally to the 
nationals of both countries (regardless of where they reside). For this 
purpose, refugees, stateless persons, and other nonnationals who derive 
benefit rights from nationals, refugees, or stateless persons may be 
treated as nationals if they reside within one of the countries.
    (b) The regulations in this subpart provide definitions and 
principles for the negotiation and administration of totalization 
agreements. Where necessary to accomplish the purposes of totalization, 
we will apply these definitions and principles, as appropriate and 
within the limits of the law, to accommodate the widely diverse 
characteristics of foreign social security systems.

[[Page 521]]



Sec. 404.1902  Definitions.

    For purposes of this subpart--
    Act means the Social Security Act (42 U.S.C. 301 et seq.).
    Agency means the agency responsible for the specific administration 
of a social security system including responsibility for implementing an 
agreement; the Social Security Administration (SSA) is the agency in the 
U.S.
    Agreement means the agreement negotiated to provide coordination 
between the social security systems of the countries party to the 
agreement. The term agreement includes any administrative agreements 
concluded for purposes of administering the agreement.
    Competent authority means the official with overall responsibility 
for administration of a country's social security system including 
applicable laws and international social security agreements; the 
Secretary of HEW is the competent authority in the U.S.
    Period of coverage means a period of payment of contributions or a 
period of earnings based on wages for employment or on self-employment 
income, or any similar period recognized as equivalent under the social 
security system of the U.S. or under the social security system of the 
foreign country which is a party to an agreement.
    Residence or ordinarily resides, when used in agreements, has the 
following meaning for the U.S. Residence or ordinarily resides in a 
country means that a person has established a home in that country 
intending to remain there permanently or for an indefinite period of 
time. Generally, a person will be considered to have established a home 
in a country if that person assumes certain economic burdens, such as 
the purchase of a dwelling or establishment of a business, and 
participates in the social and cultural activities of the community. If 
residence in a country is established, it may continue even though the 
person is temporarily absent from that country. Generally, an absence of 
six months or less will be considered temporary. If an absence is for 
more than six months, residence in the country will generally be 
considered to continue only if there is sufficient evidence to establish 
that the person intends to maintain the residence. Sufficient evidence 
would include the maintenance of a home or apartment in that country, 
the departure from the country with a reentry permit, or similar acts. 
The existence of business or family associations sufficient to warrant 
the person's return would also be considered.
    Social security system means a social insurance or pension system 
which is of general application and which provides for paying periodic 
benefits, or the actuarial equivalent, because of old-age, death, or 
disability.



Sec. 404.1903  Negotiating totalization agreements.

    An agreement shall be negotiated with the national government of the 
foreign country for the entire country. However, agreements may only be 
negotiated with foreign countries that have a social security system of 
general application in effect. The system shall be considered to be in 
effect if it is collecting social security taxes or paying social 
security benefits.



Sec. 404.1904  Effective date of a totalization agreement.

    Section 233 of the Social Security Act provides that a totalization 
agreement shall become effective on any date provided in the agreement 
if--
    (a) The date occurs after the expiration of a period during which at 
least one House of Congress has been in session on each of 60 days 
following the date on which the agreement is transmitted to Congress by 
the President; and
    (b) Neither House of Congress adopts a resolution of disapproval of 
the agreement within the 60-day period described in paragraph (a) of 
this section.

[49 FR 29775, July 24, 1984]



Sec. 404.1905  Termination of agreements.

    Each agreement shall contain provisions for its possible 
termination. If an agreement is terminated, entitlement to benefits and 
coverage acquired by an individual before termination shall be retained. 
The agreement shall provide for notification of termination to the other 
party and the effective date of termination.

[[Page 522]]

                           Benefit Provisions



Sec. 404.1908  Crediting foreign periods of coverage.

    (a) General. To have foreign periods of coverage combined with U.S. 
periods of coverage for purposes of determining entitlement to and the 
amount of benefits payable under title II, an individual must have at 
least 6 quarters of coverage, as defined in section 213 of the Social 
Security Act, under the U.S. system. As a rule, SSA will accept foreign 
coverage information, as certified by the foreign country's agency, 
unless otherwise specified by the agreement. No credit will be given, 
however, for periods of coverage acquired before January 1, 1937.
    (b) For quarters of coverage purposes. (1) Generally, a quarter of 
coverage (QC) will be credited for every 3 months (or equivalent 
period), or remaining fraction of 3 months, of coverage in a reporting 
period certified to SSA by the other country's agency. A reporting 
period used by a foreign country may be one calendar year or some other 
period of time. QCs based on foreign periods of coverage may be credited 
as QCs only to calender quarters not already QCs under title II. The QCs 
will be assigned chronologically beginning with the first calendar 
quarter (not already a QC under title II) within the reporting period 
and continuing until all the QCs are assigned, or the reporting period 
ends. Example: Country XYZ, which has an annual reporting period, 
certifies to SSA that a worker has 8 months of coverage in 1975, from 
January 1 to August 25. The worker has no QCs under title II in that 
year. Since 8 months divided by 3 months equals 2 QCs with a remainder 
of 2 months, the U.S. will credit the worker with 3 QCs. The QCs will be 
credited to the first 3 calendar quarters in 1975.
    (2) If an individual fails to meet the requirements for currently 
insured status or the insured status needed for establishing a period of 
disability solely because of the assignment of QCs based on foreign 
coverage to calendar quarters chronologically, the QCs based on foreign 
coverage may be assigned to different calendar quarters within the 
beginning and ending dates of the reporting period certified by the 
foreign country, but only as permitted under paragraph (b)(1) of this 
section.



Sec. 404.1910  Person qualifies under more than one totalization agreement.

    (a) An agreement may not provide for combining periods of coverage 
under more than two social security systems.
    (b) If a person qualifies under more than one agreement, the person 
will receive benefits from the U.S. only under the agreement affording 
the most favorable treatment.
    (c) In the absence of evidence to the contrary, the agreement that 
affords the most favorable treatment for purposes of paragraph (b) of 
this section will be determined as follows:
    (1) If benefit amounts are the same under all such agreements, 
benefits will be paid only under the agreement which affords the 
earliest month of entitlement.
    (2) If benefit amounts and the month of entitlement are the same 
under all such agreements, benefits will be paid only under the 
agreement under which all information necessary to pay such benefits is 
first available.
    (3) If benefit amounts under all such agreements are not the same, 
benefits will be paid only under the agreement under which the highest 
benefit is payable. However, benefits may be paid under an agreement 
under which a lower benefit is payable for months prior to the month of 
first entitlement to such higher benefit.

[44 FR 42964, July 23, 1979, as amended at 49 FR 29775, July 24, 1984]



Sec. 404.1911  Effects of a totalization agreement on entitlement to hospital insurance benefits.

    A person may not become entitled to hospital insurance benefits 
under section 226 or section 226A of the Act by combining the person's 
periods of coverage under the social security system of the United 
States with the person's periods of coverage under the social security 
system of the foreign country. Entitlement to hospital insurance 
benefits is not precluded if the person otherwise meets the 
requirements.

[[Page 523]]

                           Coverage Provisions



Sec. 404.1913  Precluding dual coverage.

    (a) General. Employment or self-employment or services recognized as 
equivalent under the Act or the social security system of the foreign 
country shall, on or after the effective date of the agreement, result 
in a period of coverage under the U.S. system or under the foreign 
system, but not under both. Methods shall be set forth in the agreement 
for determining under which system the employment, self-employment, or 
other service shall result in a period of coverage.
    (b) Principles for precluding dual coverage. (1) An agreement 
precludes dual coverage by assigning responsibility for coverage to the 
U.S. or a foreign country. An agreement may modify the coverage 
provisions of title II of the Act to accomplish this purpose. Where an 
agreement assigns coverage to the foreign country, it may exempt from 
coverage services otherwise covered by the Act. Where an agreement 
assigns coverage to the U.S., it may extend coverage to services not 
otherwise covered by the Act but only for taxable years beginning on or 
after April 20, 1983.
    (2) If the work would otherwise be covered by both countries, an 
agreement will exempt it from coverage by one of the countries.
    (3) Generally, an agreement will provide that a worker will be 
covered by the country in which he or she is employed and will be exempt 
from coverage by the other country.
    Example:  A U.S. national employed in XYZ country by an employer 
located in the United States will be covered by XYZ country and exempt 
from U.S. coverage.
    (4) An agreement may provide exceptions to the principle stated in 
paragraph (b)(3) of this section so that a worker will be covered by the 
country to which he or she has the greater attachment.
    Example:  A U.S. national sent by his employer located in the United 
States to work temporarily for that employer in XYZ country will be 
covered by the United States and will be exempt from coverage by XYZ 
country.
    (5) Generally, if a national of either country resides in one 
country and has self employment income that is covered by both 
countries, an agreement will provide that the person will be covered by 
the country in which he or she resides and will be exempt from coverage 
by the other country.
    (6) Agreements may provide for variations from the general 
principles for precluding dual coverage to avoid inequitable or 
anomalous coverage situations for certain workers. However, in all cases 
coverage must be provided by one of the countries.

[44 FR 42964, July 23, 1979, as amended at 50 FR 36575, Sept. 9, 1985]



Sec. 404.1914  Certificate of coverage.

    Under some agreements, proof of coverage under one social security 
system may be required before the individual may be exempt from coverage 
under the other system. Requests for certificates of coverage under the 
U.S. system may be submitted by the employer, employee, or self-employed 
individual to SSA.



Sec. 404.1915  Payment of contributions.

    On or after the effective date of the agreement, to the extent that 
employment or self-employment (or service recognized as equivalent) 
under the U.S. social security system or foreign system is covered under 
the agreement, the agreement shall provide that the work or equivalent 
service be subject to payment of contributions or taxes under only one 
system (see sections 1401(c), 3101(c), and 3111(c) of the Internal 
Revenue Code of 1954). The system under which contributions or taxes are 
to be paid is the system under which there is coverage pursuant to the 
agreement.

                         Computation Provisions



Sec. 404.1918  How benefits are computed.

    (a) General. Unless otherwise provided in an agreement, benefits 
will be computed in accordance with this section. Benefits payable under 
an agreement are based on a pro rata primary insurance amount (PIA), 
which we determine as follows:
    (1) We establish a theoretical earnings record for a worker which 
attributes to all computation base years (see Secs. 404.211(b) and 
404.241(c)) the same relative earnings position (REP) as he

[[Page 524]]

or she has in the years of his or her actual U.S. covered work. As 
explained in paragraph (b)(3) of this section, the REP is derived by 
determining the ratio of the worker's actual U.S. covered earnings in 
each year to the average of the total U.S. covered wages of all workers 
for that year, and then averaging the ratios for all such years. This 
average is the REP and is expressed as a percentage.
    (2) We compute a theoretical PIA as prescribed in Sec. 404.1918(c) 
based on the theoretical earnings record and the provisions of subpart C 
of this part.
    (3) We multiply the theoretical PIA by a fraction equal to the 
number of quarters of coverage (QC's) which the worker completed under 
the U.S. Social Security system over the number of calendar quarters in 
the worker's coverage lifetime (see paragraph (d)(2) of this section). 
See Sec. 404.140 for the definition of QC.
    (4) If the pro rata PIA is higher than the PIA which would be 
computed if the worker were insured under the U.S. system without 
totalization, the pro rata PIA will be reduced to the later PIA.
    (b) Establishing a theoretical earnings record. (1) To establish a 
worker's theoretical earnings record, we divide his or her U.S. earnings 
in each year credited with at least one U.S. QC by the average of the 
total wages of all workers for that year and express the quotient as a 
percentage. For the years 1937 through 1950, the average of the total 
wages is as follows:

------------------------------------------------------------------------
                                                              Average of
                                                              the total 
                            Year                               wages of 
                                                             all workers
------------------------------------------------------------------------
1937.......................................................    $1,137.96
1938.......................................................     1,053.24
1939.......................................................     1,142.36
1940.......................................................     1,195.00
1941.......................................................     1,276.04
1942.......................................................     1,454.28
1943.......................................................     1,713.52
1944.......................................................     1,936.32
1945.......................................................     2,021.40
1946.......................................................     1,891.76
1947.......................................................     2,175.32
1948.......................................................     2,361.64
1949.......................................................     2,483.20
1950.......................................................     2,543.96
------------------------------------------------------------------------

    (2) For years after 1950, the average of the total wages is as 
prescribed in Sec. 404.211(c). If a worker has earnings in the year 
preceding the year of eligibility or death, or in a later year, we may 
not have been able to establish the average of the total wages of all 
workers for that year. Therefore, we will divide a worker's actual 
earnings in these years by the average of the total wages for the latest 
year for which that information is available. Average wage information 
is considered available on January 1 of the year following the year in 
which it is published in the Federal Register.
    (3) The percentages for all years of actual covered earnings are 
then averaged to give the worker's REP for the entire period of work in 
the U.S. In determining the percentages for all years of covered 
earnings and the REP, we make adjustments as necessary to take account 
of the fact that the covered earnings for some years may have involved 
less than four U.S. QC's. The actual earnings that are taken into 
account in determining the percentage for any year with 1, 2, or 3 QC's 
cannot exceed \1/4\, \1/2\, or \3/4\, respectively, of the maximum 
creditable earnings for that year. When we determine the REP from the 
percentages for all years, we add the percentages for all years, divide 
this sum by the total number of QC's credited to the worker, and 
multiply this quotient by 4 (see Example 1 of paragraph (d) of this 
section). This has the effect of calculating the REP on a quarterly 
basis.
    (4) For each of the worker's computation base years (see 
Secs. 404.211(b), 404.221(b) and 404.241(c)), we multiply the average of 
the total wages of all workers for that year by the worker's REP. The 
product is the amount of earnings attributed to the worker for that 
year, subject to the annual wage limitation (see Sec. 404.1047). The 
worker's theoretical earnings record consists of his or her attributed 
earnings based on his or her REP for all computation base years. 
However, we do not attribute earnings to computation base years before 
the year of attainment of age 22 or to computation base years beginning 
with the year of attainment of retirement age (or the year in which a 
period of disability begins), unless the worker is actually credited 
with U.S. earnings in those years. In death cases, earnings for the year 
of death will be

[[Page 525]]

attributed only through the quarter of death, on a proportional basis.
    (c) Determining the theoretical PIA. We determine the worker's 
theoretical PIA based on his or her theoretical earnings record by 
applying the same computation method that would have applied under 
subpart C if the worker had these theoretical earnings and had qualified 
for benefits without application of an agreement. However, when the 
criteria in Sec. 404.210(a) for the Average Indexed Monthly Earnings 
(AIME) computation method are met, only that method is used. If these 
criteria are not met but the criteria in Sec. 404.220(a) for the Average 
Monthly Wage method are met, then only that method is used. If neither 
of these criteria are met, then the old-start method described in 
Sec. 404.241 is used. If a theoretical PIA is to be determined based on 
a worker's AIME, theoretical earnings amounts for each year, determined 
under paragraph (b) of this section, are indexed in determining the AIME 
under Sec. 404.211.
    (d) Determining the pro rata PIA. We then determine a pro rata PIA 
from the theoretical PIA. The pro rata PIA is the product of--
    (1) The theoretical PIA; and
    (2) The ratio of the worker's actual number of U.S. QC's to the 
number of calendar quarters in the worker's coverage lifetime. A 
coverage lifetime means the worker's benefit computation years as 
determined under Sec. 404.211(e), Sec. 404.221(c), or Sec. 404.241(d).
    Example 1:  C attains age 62 in 1982 and needs 31 QC's to be 
insured. C worked under the U.S. system from July 1, 1974 to December 
31, 1980 and therefore has only 6\1/2\ years during which he worked 
under the U.S. system (26 QC's). C, however, has worked under the Social 
Security system of a foreign country that is party to a totalization 
agreement, and his total U.S. and foreign work, combined as described in 
Sec. 404.1908, equals more than 31 QC's. Thus, the combined coverage 
gives C insured status. The benefit is computed as follows:
    Step 1: Establish C's theoretical earnings record:
    The following table shows: (1) C's actual U.S. covered earnings for 
each year, (2) the average of the total wages of all workers for that 
year and (3) the ratio of (1) to (2):

----------------------------------------------------------------------------------------------------------------
                                                                              C's actual                        
                                                                                 U.S.      National   Percentage
                                Year                                   QC's     covered     average    ratio of 
                                                                               earnings      wage     (1) to (2)
----------------------------------------------------------------------------------------------------------------
                                                                                     (1)         (2)         (3)
----------------------------------------------------------------------------------------------------------------
1974...............................................................        2   $2,045.08   $8,030.76    25.46558
1975...............................................................        4    7,542.00    8,630.92    87.38350
1976...............................................................        4    9,016.00    9,226.48    97.71874
1977...............................................................        4    9,952.00    9,779.44   101.76452
1978...............................................................        4   10,924.00   10,556.03   103.48587
1979...............................................................        4   12,851.00   11,479.46   111.94777
1980...............................................................        4   11,924.00   12,513.46    95.28939
----------------------------------------------------------------------------------------------------------------

    C's REP is the average of the ratios in column 3, adjusted to take 
account of the fact that C had only 2 QC's in 1974. Thus, the REP equals 
the sum of the figures in column 3 (623.05537), divided by the total 
number of C's QC's (26) and multiplied by 4, or 95.85467 percent.
    Since C attained age 62 in 1982, his computation base years are 1951 
through 1981. To establish his theoretical earnings record we use 
95.85467 percent of the national average wage for each of the years 1951 
through 1981. Since national average wage data is not available for 
1981, for that year we attribute 95.85467 percent of the national 
average wage for 1980 or $11,994.74. His theoretical earnings record 
would look like this:

1951.......................................................    $2,683.13
1952.......................................................     2,850.07
1953.......................................................     3,009.30
1954.......................................................     3,024.83
1955.......................................................     3,164.58
1956.......................................................     3,385.93
1957.......................................................     3,490.76
1958.......................................................     3,521.51
1959.......................................................     3,695.96
1960.......................................................     3,841.01
1961.......................................................     3,917.35
1962.......................................................     4,113.51
1963.......................................................     4,214.38
1964.......................................................     4,386.62
1965.......................................................     4,465.60
1966.......................................................     4,733.65
1967.......................................................     4,997.33
1968.......................................................     5,340.79
1969.......................................................     5,649.44
1970.......................................................     5,929.80
1971.......................................................     6,227.75
1972.......................................................     6,838.08
1973.......................................................     7,265.94
1974.......................................................     7,697.86
1975.......................................................     8,273.14
1976.......................................................     8,844.01
1977.......................................................     9,374.05
1978.......................................................    10,118.45
1979.......................................................    11,003.60
1980.......................................................    11,994.74
1981.......................................................    11,994.74
                                                                        

    Step 2: Compute the theoretical PIA: Since C attains age 62 in 1982, 
we determine his theoretical PIA using an AIME computation. In applying 
the AIME computation, we index each year's earnings on the theoretical 
earnings record in accordance with Sec. 404.211(d). In this example, the 
theoretical PIA is $453.
    Step 3: Compute the pro rata PIA:

[[Page 526]]



                                                        Theoretical PIA                                         
                                                      - Actual U.S. QC's                                        
                                        ----------------------------------------------                          
                                                     calendar quarters in                                       
                                                   benefit computation years                                    
                                                                                                                
                                                                                                                
                                                 $453 - 26 QC's (6\1/2\ years)                                  
                                        ----------------------------------------------                          
                                                    104 quarters (26 years)                                     
                                                                                                                
                                                                                                                
                                              =$113.20 pro rata PIA                                             
                                                                                                                

    Example 2:  M needs 27 QC's to be insured, but she has only 3 years 
of work (12 QC's) under the U.S. system. M has enough foreign work, 
however, to be insured. She attained age 62 in 1978, and her U.S. 
covered earnings were in 1947, 1948 and 1949. Based on M's date of 
birth, her theoretical PIA can be computed, in accordance with 
Sec. 404.220, under a new start method. If M's earnings in 1947, 1948, 
and 1949 were 50 percent, 60 percent and 70 percent, respectively, of 
the average wage for each year, her REP would be 60 percent. For each 
year in the computation period, 60 percent of the average wage for that 
year will be attributed as M's assumed earnings. The theoretical PIA 
will then be computed as described in Secs. 404.220 through 404.222.
    To determine M's pro rata PIA, the theoretical PIA will be 
multiplied by the ratio of the actual number of U.S. QC's to the number 
of calendar quarters in the benefit computation years. There are 22 
benefit computation years, or 88 quarters. The pro rata PIA would, 
therefore, be \12/88\ x theoretical PIA.
    (e) Rounding of benefits. (1) If the effective date of the pro rata 
PIA is before June 1982, we will round to the next higher multiple of 10 
cents if it is not already a multiple of 10 cents.
    (2) If the effective date of the pro rata PIA is June 1982 or later, 
we will round to the next lower multiple of 10 cents if it is not 
already a multiple of 10 cents.
    (f) Auxiliary and survivors benefits; reductions; family maximum. We 
will determine auxiliary and survivors benefit amounts (see subpart D) 
on the basis of the pro rata PIA. We will apply the regular reductions 
for age under section 202(q) of the Act to the benefits of the worker or 
to any auxiliaries or survivors which are based on the pro rata PIA (see 
Sec. 404.410). Benefits will be payable subject to the family maximum 
(see Sec. 404.403) derived from the pro rata PIA. If the pro rata PIA is 
less than the minimum PIA, the family maximum will be 1\1/2\ times the 
pro rata PIA.

[49 FR 29775, July 24, 1984]



Sec. 404.1919  How benefits are recomputed.

    Unless otherwise provided in an agreement, we will recompute 
benefits in accordance with this section. We will recompute the pro rata 
PIA only if the inclusion of the additional earnings results in an 
increase in the benefits payable by the U.S. to all persons receiving 
benefits on the basis of the worker's earnings. Subject to this 
limitation, the pro rata PIA will be automatically recomputed (see 
Sec. 404.285) to include additional earnings under the U.S. system. In 
so doing, a new REP will be established for the worker, taking the 
additional earnings into account, and assumed earnings in the 
computation base years used in the original computation will be 
refigured using the new REP. Assumed earnings will also be determined 
for the year of additional earnings using the new REP. The additional 
U.S. earnings will also be used in refiguring the ratio described in 
Sec. 404.1918(d)(2).

[49 FR 29777, July 24, 1984]



Sec. 404.1920  Supplementing the U.S. benefit if the total amount of the combined benefits is less than the U.S. minimum benefit.

    If a resident of the U.S. receives benefits under an agreement from 
both the U.S. and from the foreign country, the total amount of the two 
benefits may be less than the amount for which the resident would 
qualify under the U.S. system based on the minimum PIA as in effect for 
persons first becoming eligible for benefits before January 1982. An 
agreement may provide that in the case of an individual who first 
becomes eligible for benefits before January 1982, the U.S. will 
supplement the total amount to raise it to the amount for which the 
resident would have qualified under the U.S. system based on the minimum 
PIA. (The minimum benefit will be based on the first figure in column IV 
in the table in section 215(a) of the Act for a person becoming eligible 
for the benefit before January 1, 1979, or the PIA determined under 
section 215(a)(1)(C)(i)(I) of the Act (as in effect

[[Page 527]]

in December 1981) for a person becoming eligible for the benefit after 
December 31, 1978.)

[49 FR 29777, July 24, 1984]



Sec. 404.1921  Benefits of less than $1 due.

    If the monthly benefit amount due an individual (or several 
individuals, e.g., children, where several benefits are combined in one 
check) as a result of a claim filed under an agreement is less than $1, 
the benefits may be accumulated until they equal or exceed $5.

                            Other Provisions



Sec. 404.1925  Applications.

    (a)(1) An application, or written statement requesting benefits, 
filed with the competent authority or agency of a country with which the 
U.S. has concluded an agreement shall be considered an application for 
benefits under title II of the Act as of the date it is filed with the 
competent authority or agency if--
    (i) An applicant expresses or implies an intent to claim benefits 
from the U.S. under an agreement; and
    (ii) The applicant files an application that meets the requirements 
in subpart G of this part.
    (2) The application described in paragraph (a)(1)(ii) of this 
section must be filed, even if it is not specifically provided for in 
the agreement.
    (b) Benefits under an agreement may not be paid on the basis of an 
application filed before the effective date of the agreement.



Sec. 404.1926  Evidence.

    (a) An applicant for benefits under an agreement shall submit the 
evidence needed to establish entitlement, as provided in subpart H of 
this part. Special evidence requirements for disability benefits are in 
subpart P of this part.
    (b) Evidence submitted to the competent authority or agency of a 
country with which the U.S. has concluded an agreement shall be 
considered as evidence submitted to SSA. SSA shall use the rules in 
Secs. 404.708 and 404.709 to determine if the evidence submitted is 
sufficient, or if additional evidence is needed to prove initial or 
continuing entitlement to benefits.
    (c) If an application is filed for disability benefits, SSA shall 
consider medical evidence submitted to a competent authority or agency, 
as described in paragraph (b) of this section, and use the rules of 
subpart P of this part for making a disability determination.



Sec. 404.1927  Appeals.

    (a) A request for reconsideration, hearing, or Appeals Council 
review of a determination that is filed with the competent authority or 
agency of a country with which the U.S. has concluded an agreement, 
shall be considered to have been timely filed with SSA if it is filed 
within the 60-day time period provided in Secs. 404.911, 404.918, and 
404.946.
    (b) A request for reconsideration, hearing, or Appeals Council 
review of a determination made by SSA resulting from a claim filed under 
an agreement shall be subject to the provisions in subpart J of this 
part. The rules governing administrative finality in subpart J of this 
part shall also apply.



Sec. 404.1928  Effect of the alien non-payment provision.

    An agreement may provide that a person entitled to benefits under 
title II of the Social Security Act may receive those benefits while 
residing in the foreign country party to the agreement, regardless of 
the alien non-payment provision (see Sec. 404.460).



Sec. 404.1929  Overpayments.

    An agreement may not authorize the adjustment of title II benefits 
to recover an overpayment made under the social security system of a 
foreign country (see Sec. 404.501). Where an overpayment is made under 
the U.S. system, the provisions in subpart F of this part will apply.



Sec. 404.1930  Disclosure of information.

    The use of information furnished under an agreement generally shall 
be governed by the national statutes on confidentiality and disclosure 
of information of the country that has been furnished the information. 
(The U.S. will be governed by pertinent provisions of the Social 
Security Act, the

[[Page 528]]

Freedom of Information Act, the Privacy Act, the Tax Reform Act, and 
other related statutes.) In negotiating an agreement, consideration, 
should be given to the compatibility of the other country's laws on 
confidentiality and disclosure to those of the U.S. To the extent 
possible, information exchanged between the U.S. and the foreign country 
should be used exclusively for purposes of implementing the agreement 
and the laws to which the agreement pertains.



                    Subpart U--Representative Payment

    Authority:  Secs. 205 (a), (j), and (k), and 702(a)(5) of the Social 
Security Act (42 U.S.C. 405 (a), (j), and (k), and 902(a)(5)).

    Source:  47 FR 30472, July 14, 1982, unless otherwise noted.



Sec. 404.2001  Introduction.

    (a) Explanation of representative payment. This subpart explains the 
principles and procedures that we follow in determining whether to make 
representative payment and in selecting a representative payee. It also 
explains the responsibilities that a representative payee has concerning 
the use of the funds he or she receives on behalf of a beneficiary. A 
representative payee may be either a person or an organization selected 
by us to receive benefits on behalf of a beneficiary. A representative 
payee will be selected if we believe that the interest of a beneficiary 
will be served by representative payment rather than direct payment of 
benefits. Generally, we appoint a representative payee if we have 
determined that the beneficiary is not able to manage or direct the 
management of benefit payments in his or her interest.
    (b) Policy used to determine whether to make representative payment. 
(1) Our policy is that every beneficiary has the right to manage his or 
her own benefits. However, some beneficiaries due to a mental or 
physical condition or due to their youth may be unable to do so. Under 
these circumstances, we may determine that the interests of the 
beneficiary would be better served if we certified benefit payments to 
another person as a representative payee.
    (2) If we determine that representative payment is in the interest 
of a beneficiary, we will appoint a representative payee. We may appoint 
a representative payee even if the beneficiary is a legally competent 
individual. If the beneficiary is a legally incompetent individual, we 
may appoint the legal guardian or some other person as a representative 
payee.
    (3) If payment is being made directly to a beneficiary and a 
question arises concerning his or her ability to manage or direct the 
management of benefit payments, we will, if the beneficiary is 18 years 
old or older and has not been adjudged legally incompetent, continue to 
pay the beneficiary until we make a determination about his or her 
ability to manage or direct the management of benefit payments and the 
selection of a representative payee.



Sec. 404.2010  When payment will be made to a representative payee.

    (a) We pay benefits to a representative payee on behalf of a 
beneficiary 18 years old or older when it appears to us that this method 
of payment will be in the interest of the beneficiary. We do this if we 
have information that the beneficiary is--
    (1) Legally incompetent or mentally incapable of managing benefit 
payments; or
    (2) Physically incapable of managing or directing the management of 
his or her benefit payments.
    (b) Generally, if a beneficiary is under age 18, we will pay 
benefits to a representative payee. However, in certain situations, we 
will make direct payments to a beneficiary under age 18 who shows the 
ability to manage the benefits. For example, we make direct payments to 
a beneficiary under age 18 if the beneficiary is--
    (1) Receiving disability insurance benefits on his or her own Social 
Security earnings record; or
    (2) Serving in the military services; or
    (3) Living alone and supporting himself or herself; or
    (4) A parent and files for himself or herself and/or his or her 
child and he or she has experience in handling his or her own finances; 
or

[[Page 529]]

    (5) Capable of using the benefits to provide for his or her current 
needs and no qualified payee is available; or
    (6) Within 7 months of attaining age 18 and is initially filing an 
application for benefits.

[47 FR 30472, July 14, 1982, as amended at 54 FR 35483, Aug. 28, 1989]



Sec. 404.2015  Information considered in determining whether to make representative payments.

    In determining whether to make representative payment we consider 
the following information:
    (a) Court determinations. If we learn that a beneficiary has been 
found to be legally incompetent, a certified copy of the court's 
determination will be the basis of our determination to make 
representative payment.
    (b) Medical evidence. When available, we will use medical evidence 
to determine if a beneficiary is capable of managing or directing the 
management of benefit payments. For example, a statement by a physician 
or other medical professional based upon his or her recent examination 
of the beneficiary and his or her knowledge of the beneficiary's present 
condition will be used in our determination, if it includes information 
concerning the nature of the beneficiary's illness, the beneficiary's 
chances for recovery and the opinion of the physician or other medical 
professional as to whether the beneficiary is able to manage or direct 
the management of benefit payments.
    (c) Other evidence. We will also consider any statements of 
relatives, friends and other people in a position to know and observe 
the beneficiary, which contain information helpful to us in deciding 
whether the beneficiary is able to manage or direct the management of 
benefit payments.



Sec. 404.2020  Information considered in selecting a representative payee.

    In selecting a payee we try to select the person, agency, 
organization or institution that will best serve the interest of the 
beneficiary. In making our selection we consider--
    (a) The relationship of the person to the beneficiary;
    (b) The amount of interest that the person shows in the beneficiary;
    (c) Any legal authority the person, agency, organization or 
institution has to act on behalf of the beneficiary;
    (d) Whether the potential payee has custody of the beneficiary; and
    (e) Whether the potential payee is in a position to know of and look 
after the needs of the beneficiary.



Sec. 404.2021  Order of preference in selecting a representative payee.

    As a guide in selecting a representative payee, categories of 
preferred payees have been established. These preferences are flexible. 
Our primary concern is to select the payee who will best serve the 
beneficiary's interest. The preferences are:
    (a) For beneficiaries 18 years old or older, our preference is--
    (1) A legal guardian, spouse (or other relative) who has custody of 
the beneficiary or who demonstrates strong concern for the personal 
welfare of the beneficiary;
    (2) A friend who has custody of the beneficiary or demonstrates 
strong concern for the personal welfare of the beneficiary;
    (3) A public or nonprofit agency or institution having custody of 
the beneficiary;
    (4) A private institution operated for profit and licensed under 
State law, which has custody of the beneficiary; and
    (5) Persons other than above who are qualified to carry out the 
responsibilities of a payee and who are able and willing to serve as a 
payee for a beneficiary; e.g., members of community groups or 
organizations who volunteer to serve as payee for a beneficiary.
    (b) For beneficiaries under age 18, our preference is--
    (1) A natural or adoptive parent who has custody of the beneficiary, 
or a guardian;
    (2) A natural or adoptive parent who does not have custody of the 
beneficiary, but is contributing toward the beneficiary's support and is 
demonstrating strong concern for the beneficiary's well being;
    (3) A natural or adoptive parent who does not have custody of the 
beneficiary and is not contributing toward his or her support but is 
demonstrating

[[Page 530]]

strong concern for the beneficiary's well being;
    (4) A relative or stepparent who has custody of the beneficiary;
    (5) A relative who does not have custody of the beneficiary but is 
contributing toward the beneficiary's support and is demonstrating 
concern for the beneficiary's well being;
    (6) A relative or close friend who does not have custody of the 
beneficiary but is demonstrating concern for the beneficiary's well 
being; and
    (7) An authorized social agency or custodial institution.

[47 FR 30472, July 14, 1982; 47 FR 32936, July 30, 1982]



Sec. 404.2025  Information to be submitted by a representative payee.

    (a) Before we select a representative payee, the payee applicant 
must give us information showing his or her relationship to the 
beneficiary and his or her responsibility for the care of the 
beneficiary.
    (b) Anytime after we have selected a payee, we may ask the payee to 
give us information showing a continuing relationship to the beneficiary 
and a continuing responsibility for the care of the beneficiary. If the 
payee does not give us the requested information within a reasonable 
period of time, we may stop paying the payee unless we determine that 
the payee had a good reason for not complying with our request, and we 
receive the information requested.



Sec. 404.2030  Advance notice of the determination to make representative payment.

    (a) Generally, whenever we intend to make representative payment and 
to name a payee, we notify the beneficiary or the individual acting on 
his or her behalf, of our proposed actions. In this notice we tell the 
person that we plan to name a representative payee and who that payee 
will be. We also ask the person to contact us if he or she objects to 
either proposed action. If he or she objects to either proposed action, 
the person may--
    (1) Review the evidence upon which the proposed actions will be 
based; and
    (2) Submit any additional evidence regarding the proposed actions.
    (b) If the person objects to the proposed actions, we will review 
our proposed determinations and consider any additional information 
given to us. We will then issue our determinations. If the person is 
dissatisfied with either determination, he or she may request a 
reconsideration.
    (c) If the person does not object to the proposed actions, we will 
issue our determinations. If the person is dissatisfied with either 
determination, he or she may request a reconsideration.

[47 FR 30472, July 14, 1982; 47 FR 32936, July 30, 1982]



Sec. 404.2035  Responsibilities of a representative payee.

    A representative payee has a responsibility to--
    (a) Use the payments he or she receives only for the use and benefit 
of the beneficiary in a manner and for the purposes he or she 
determines, under the guidelines in this subpart, to be in the best 
interests of the beneficiary;
    (b) Notify us of any event that will affect the amount of benefits 
the beneficiary receives or the right of the beneficiary to receive 
benefits;
    (c) Submit to us, upon our request, a written report accounting for 
the benefits received; and
    (d) Notify us of any change in his or her circumstances that would 
affect performance of the payee responsibilities.



Sec. 404.2040  Use of benefit payments.

    (a) Current maintenance. (1) We will consider that payments we 
certify to a representative payee have been used for the use and benefit 
of the beneficiary if they are used for the beneficiary's current 
maintenance. Current maintenance includes cost incurred in obtaining 
food, shelter, clothing, medical care, and personal comfort items.
    Example:  An aged beneficiary is entitled to a monthly Social 
Security benefit of $400. Her son, who is her payee, disburses her 
benefits in the following manner:

Rent and utilities...............................................   $200
Medical..........................................................     25
Food.............................................................     60
Clothing (coat)..................................................     55
Savings..........................................................     30
Miscellaneous....................................................     30

[[Page 531]]

                                                                        
                                                                        




The above expenditures would represent proper disbursements on behalf of 
the beneficiary.
    (2) Notwithstanding the provisions of paragraph (a)(1) of this 
section, if a beneficiary is a member of an Aid to Families With 
Dependent Children (AFDC) assistance unit, we do not consider it 
inappropriate for a representative payee to make the benefit payments 
available to the AFDC assistance unit.
    (b) Institutional care. If a beneficiary is receiving care in a 
Federal, State, or private institution because of mental or physical 
incapacity, current maintenance includes the customary charges made by 
the institution, as well as expenditures for those items which will aid 
in the beneficiary's recovery or release from the institution or 
expenses for personal needs which will improve the beneficiary's 
conditions while in the institution.
    Example:  An institutionalized beneficiary is entitled to a monthly 
Social Security benefit of $320. The institution charges $700 a month 
for room and board. The beneficiary's brother, who is the payee, learns 
the beneficiary needs new shoes and does not have any funds to purchase 
miscellaneous items at the institution's canteen.
    The payee takes his brother to town and buys him a pair of shoes for 
$29. He also takes the beneficiary to see a movie which costs $3. When 
they return to the institution, the payee gives his brother $3 to be 
used at the canteen.
    Although the payee normally withholds only $25 a month from Social 
Security benefit for the beneficiary's personal needs, this month the 
payee deducted the above expenditures and paid the institution $10 less 
than he usually pays.
    The above expenditures represent what we would consider to be proper 
expenditures for current maintenance.
    (c) Support of legal dependents. If the current maintenance needs of 
the beneficiary are met, the payee may use part of the payments for the 
support of the beneficiary's legally dependent spouse, child, and/or 
parent.
    Example:  A disabled beneficiary receives a Veterans Administration 
(VA) benefit of $325 and a Social Security benefit of $525. The 
beneficiary resides in a VA hospital and his VA benefits are sufficient 
to provide for all of his needs; i.e., cost of care and personal needs. 
The beneficiary's legal dependents--his wife and two children--have a 
total income of $250 per month in Social Security benefits. However, 
they have expenses of approximately $450 per month.
    Because the VA benefits are sufficient to meet the beneficiary's 
needs, it would be appropriate to use part of his Social Security 
benefits to support his dependents.
    (d) Claims of creditors. A payee may not be required to use benefit 
payments to satisfy a debt of the beneficiary, if the debt arose prior 
to the first month for which payments are certified to a payee. If the 
debt arose prior to this time, a payee may satisfy it only if the 
current and reasonably foreseeable needs of the beneficiary are met.
    Example:  A retroactive Social Security check in the amount of 
$1,640, representing benefits due for July 1980 through January 1981, 
was issued on behalf of the beneficiary to the beneficiary's aunt who is 
the representative payee. The check was certified in February 1981.
    The nursing home, where the beneficiary resides, submitted a bill 
for $1,139 to the payee for maintenance expenses the beneficiary 
incurred during the period from June 1980 through November 1980. 
(Maintenance charges for December 1980 through February 1981 had 
previously been paid.)
    Because the benefits were not required for the beneficiary's current 
maintenance, the payee had previously saved over $500 for the 
beneficiary and the beneficiary had no foreseeable needs which would 
require large disbursements, the expenditure for the maintenance charges 
would be consistent with our guidelines.

[47 FR 30472, July 14, 1982, as amended at 54 FR 35483, Aug. 28, 1989]



Sec. 404.2040a  Compensation for qualified organizations serving as representative payees.

    (a) General. A community-based, nonprofit social service agency 
which meets the requirements set out in paragraph (b) of this section 
may request our authorization to collect a monthly fee from a 
beneficiary for providing representative payee services.
    (b) Organizations that may request compensation. We will authorize 
an organization to collect a fee if all the following requirements are 
met.
    (1) It is community-based, i.e., serves or represents one or more 
neighborhoods, city or county locales and is located within its service 
area.
    (2) It is a nonprofit social service organization founded for 
religious, charitable or social welfare purposes and is

[[Page 532]]

tax exempt under section 501(c) of the Internal Revenue Code.
    (3) It is bonded or licensed in the State in which it serves as 
representative payee.
    (4) It regularly provides representative payee services concurrently 
to at least five beneficiaries. An organization which has received our 
authorization to collect a fee for representative payee services, but is 
temporarily not a payee for at least five beneficiaries, may request our 
approval to continue to collect fees.
    (5) It was in existence on October 1, 1988.
    (6) It is not a creditor of the beneficiary. See paragraph (c) of 
this section for exceptions to this requirement.
    (c) Creditor relationship. If an organization has a creditor 
relationship with a beneficiary, we may, on a case-by-case basis, 
authorize the organization to collect a fee for payee services 
notwithstanding this relationship. To provide this authorization, we 
will review all of the evidence submitted by the organization and 
authorize collection of a fee when:
    (1) The services provided by the organization help to meet the 
current needs of the beneficiary; and
    (2) The amount the organization charges the beneficiary for these 
services is commensurate with the beneficiary's ability to pay.
    (d) Authorization process. (1) An organization must request in 
writing and receive an authorization from us before it may collect a 
fee.
    (2) An organization seeking authorization to collect a fee must also 
give us evidence to show that it is qualified, pursuant to paragraphs 
(b) and (c) of this section, to collect a fee.
    (3) If the evidence provided to us by the organization shows that 
the requirements of this section are met, we will notify the 
organization in writing that it is authorized to collect a fee. If we 
need more evidence, or if we are not able to authorize the collection of 
a fee, we will also notify the organization in writing that we have not 
authorized the collection of a fee.
    (e) Revocation, cancellation and expiration of the authorization. 
(1) We will revoke an authorization to collect a fee if we have evidence 
which establishes that an organization no longer meets the requirements 
of this section. We will issue a written notice to the organization 
explaining the reason(s) for the revocation.
    (2) An organization may cancel its authorization at any time upon 
written notice to us.
    (f) Notices. The written notice we will send to an organization 
authorizing the collection of a fee will contain an effective date for 
the collection of a fee pursuant to paragraphs (b) and (c) of this 
section. The effective date will be no earlier than the month in which 
the organization asked for authorization to collect a fee. The notice 
will be applicable to all beneficiaries for whom the organization was 
payee at the time of our authorization and all beneficiaries for whom 
the organization becomes payee while the authorization is in effect.
    (g) Limitation on fees. (1) An organization authorized to collect a 
fee pursuant to this section may collect from a beneficiary a monthly 
fee for expenses (including overhead) it has incurred in providing payee 
services to a beneficiary if the fee does not exceed the lesser of--
    (i) 10 percent of the beneficiary's monthly benefit payments; or
    (ii) $25.00 per month.
    (2) Any agreement providing for a fee in excess of the amount 
permitted under paragraph (g)(1) of this section shall be void and 
treated as misuse of benefits by the organization of the individual's 
benefits under Sec. 404.2041.
    (3) A fee may be collected for any month during which the 
organization--
    (i) Provides representative payee services;
    (ii) Receives a benefit payment for the beneficiary; and
    (iii) Is authorized to receive a fee for representative payee 
services.
    (4) Fees for services may not be taken from any funds conserved for 
the beneficiary by a payee in accordance with Sec. 404.2045.
    (5) Generally, an organization may not collect a fee for months in 
which it does not receive a benefit payment. However, an organization 
will be allowed to collect a fee for months in which it did not receive 
a payment if

[[Page 533]]

we later issue payments for these months and the organization:
    (i) Received our approval to collect a fee for the months for which 
payment is made;
    (ii) Provided payee services in the months for which payment is 
made; and
    (iii) Was the payee when the retroactive payment was paid by us.
    (6) An authorized organization may not collect a fee for the 
expenses it incurred in providing representative payee services if these 
expenses are paid from another source.

[57 FR 23057, June 1, 1992]



Sec. 404.2041  Liability for misuse of benefit payments.

    Our obligation to the beneficiary is completely discharged when we 
make a correct payment to a representative payee on behalf of the 
beneficiary. The payee in his or her personal capacity, and not SSA, may 
be liable if the payee misuses the beneficiary's benefits.



Sec. 404.2045  Conservation and investment of benefit payments.

    (a) General. After the representative payee has used benefit 
payments consistent with the guidelines in this subpart (see 
Sec. 404.2040 regarding use of benefits), any remaining amount shall be 
conserved or invested on behalf of the beneficiary. Conserved funds 
should be invested in accordance with the rules followed by trustees. 
Any investment must show clearly that the payee holds the property in 
trust for the beneficiary.
    Example:  A State institution for mentally retarded children, which 
is receiving Medicaid funds, is representative payee for several Social 
Security beneficiaries. The checks the payee receives are deposited into 
one account which shows that the benefits are held in trust for the 
beneficiaries. The institution has supporting records which show the 
share each individual has in the account. Funds from this account are 
disbursed fairly quickly after receipt for the current support and 
maintenance of the beneficiaries as well as for miscellaneous needs the 
beneficiaries may have. Several of the beneficiaries have significant 
accumulated resources in this account. For those beneficiaries whose 
benefits have accumulated over $150, the funds should be deposited in an 
interest-bearing account or invested relatively free of risk on behalf 
of the beneficiaries.
    (b) Preferred investments. Preferred investments for excess funds 
are U.S. Savings Bonds and deposits in an interest or dividend paying 
account in a bank, trust company, credit union, or savings and loan 
association which is insured under either Federal or State law. The 
account must be in a form which shows clearly that the representative 
payee has only a fiduciary and not a personal interest in the funds. If 
the payee is the legally appointed guardian or fiduciary of the 
beneficiary, the account may be established to indicate this 
relationship. If the payee is not the legally appointed guardian or 
fiduciary, the accounts may be established as follows:
    (1) For U.S. Savings Bonds--

    ------------ (Name of beneficiary) ------------ (Social Security 
Number), for whom ------ (Name of payee) is representative payee for 
Social Security benefits;

    (2) For interest or dividend paying accounts--

    ------------ (Name of beneficiary) by ------------ (Name of payee), 
representative payee.

    (c) Interest and dividend payments. The interest and dividends which 
result from an investment are the property of the beneficiary and may 
not be considered to be the property of the payee.

[47 FR 30472, July 14, 1982, as amended at 54 FR 35483, Aug. 28, 1989]



Sec. 404.2050  When a new representative payee will be selected.

    When we learn that the interests of the beneficiary are not served 
by continuing payment to the present payee or that the present payee is 
no longer able to carry out the payee responsibilities, we try to find a 
new payee. We will select a new payee if we find a preferred payee or if 
the present payee--
    (a) Has not used the benefit payments on the beneficiary's behalf in 
accordance with the guidelines in this subpart;
    (b) Has not carried out the other responsibilities described in this 
subpart;
    (c) Dies;
    (d) No longer wishes to be payee;
    (e) Is unable to manage the benefit payments; or

[[Page 534]]

    (f) Fails to cooperate, within a reasonable time, in providing 
evidence, accounting, or other information which we request.



Sec. 404.2055  When representative payment will be stopped.

    If a beneficiary receiving representative payment shows us that he 
or she is mentally and physically able to manage or direct the 
management of benefit payments, we will make direct payment. Information 
which the beneficiary may give us to support his or her request for 
direct payment include the following--
    (a) A physician's statement regarding the beneficiary's condition, 
or a statement by a medical officer of the institution where the 
beneficiary is or was confined, showing that the beneficiary is able to 
manage or direct the management of his or her funds; or
    (b) A certified copy of a court order restoring the beneficiary's 
rights in a case where a beneficiary was adjudged legally incompetent; 
or
    (c) Other evidence which establishes the beneficiary's ability to 
manage or direct the management of benefits.



Sec. 404.2060  Transfer of accumulated benefit payments.

    A representative payee who has conserved or invested benefit 
payments shall transfer these funds, and the interest earned from the 
invested funds, to either a successor payee or to us, as we will 
specify. If the funds and the earned interest are returned to us, we 
will recertify them to a successor representative payee or to the 
beneficiary.

[47 FR 30472, July 14, 1982; 47 FR 34781, Aug. 11, 1982]



Sec. 404.2065  Accounting for benefit payments.

    A representative payee is accountable for the use of benefits. We 
may require periodic written reports from representative payees. We may 
also, in certain situations, verify how a representative payee used the 
funds. A representative payee should keep records of what was done with 
the benefit payments in order to make accounting reports. We may ask the 
following questions--
    (a) The amount of benefit payments on hand at the beginning of the 
accounting period;
    (b) How the benefit payments were used;
    (c) How much of the benefit payments were saved and how the savings 
were invested;
    (d) Where the beneficiary lived during the accounting period; and
    (e) The amount of the beneficiary's income from other sources during 
the accounting period. We ask for information about other funds to 
enable us to evaluate the use of benefit payments.



       Subpart V--Payments for Vocational Rehabilitation Services

    Authority:  Secs. 205(a), 222, and 702(a)(5) of the Social Security 
Act (42 U.S.C. 405(a), 422, and 902(a)(5)).

    Source:  48 FR 6293, Feb. 10, 1983, unless otherwise noted.

                           General Provisions



404.2101  General.

    Section 222(d) of the Social Security Act authorizes the transfer 
from the Federal Old-Age and Survivors Insurance Trust Fund and the 
Federal Disability Insurance Trust Fund of such sums as may be necessary 
to pay for the reasonable and necessary costs of vocational 
rehabilitation (VR) services provided certain disabled individuals 
entitled under section 223, 225(b), 202(d), 202(e) or 202(f) of the 
Social Security Act. The purpose of this provision is to make VR 
services more readily available to disabled individuals, help State VR 
agencies and alternate participants to recover some of their costs in VR 
refusal situations as described in Sec. 404.2113, and ensure that 
savings accrue to the Federal Old-Age and Survivors Insurance Trust Fund 
and the Federal Disability Insurance Trust Fund. Payment will be made 
for VR services provided on behalf of such an individual in cases 
where--
    (a) The furnishing of the VR services results in the individual's 
completion of a continuous 9-month period of substantial gainful 
activity (SGA) as specified in Secs. 404.2110 through 404.2111;
    (b) The individual continues to receive disability payments from us,

[[Page 535]]

even though his or her disability has ceased, because of his or her 
continued participation in an approved VR program which we have 
determined will increase the likelihood that he or she will not return 
to the disability rolls (see Sec. 404.2112); or
    (c) The individual refuses, without good cause, to continue or to 
cooperate in a VR program in such a manner as to preclude his or her 
successful rehabilitation (see Sec. 404.2113).

[55 FR 8453, Mar. 8, 1990]



Sec. 404.2102  Purpose and scope.

    This subpart describes the rules under which the Secretary will pay 
the State VR agencies or alternate participants for VR services. Payment 
will be provided for VR services provided on behalf of disabled 
individuals under one or more of the three provisions discussed in 
Sec. 404.2101.
    (a) Sections 404.2101 through 404.2103 describe the purpose of these 
regulations and the meaning of terms we frequently use in them.
    (b) Section 404.2104 explains how State VR agencies or alternate 
participants may participate in the payment program under this subpart.
    (c) Section 404.2106 describes the basic qualifications for 
alternate participants.
    (d) Sections 404.2108 through 404.2109 describe the requirements and 
conditions under which we will pay a State VR agency or alternate 
participant under this subpart.
    (e) Sections 404.2110 through 404.2111 describe when an individual 
has completed a continuous period of SGA and when VR services will be 
considered to have contributed to that period.
    (f) Sections 404.2112 and 404.2113 describe when payment will be 
made to a VR agency or alternate participant because an individual's 
disability benefits are continued based on his or her participation in a 
VR program which we have determined will increase the likelihood that he 
or she will not return to the disability rolls; and when payment will be 
made to a VR agency or alternate participant when an individual, without 
good cause, refuses to continue to participate in a VR program or fails 
to cooperate in such a manner as to preclude his or her successful 
rehabilitation.
    (g) Sections 404.2114 through 404.2115 describe services for which 
payment will be made.
    (h) Section 404.2116 describes the filing deadlines for claims for 
payment for VR services.
    (i) Section 404.2117 describes the payment conditions.
    (j) Section 404.2118 describes the applicability of these 
regulations to alternate participants.
    (k) Section 404.2119 describes how we will make payment to State VR 
agencies or alternate participants for rehabilitation services.
    (l) Sections 404.2120 and 404.2121 describe the audits and the 
prepayment and postpayment validation reviews we will conduct.
    (m) Section 404.2122 discusses confidentiality of information and 
records.
    (n) Section 404.2123 provides for the applicability of other Federal 
laws and regulations.
    (o) Section 404.2127 provides for the resolution of disputes.

[48 FR 6293, Feb. 10, 1983, as amended at 55 FR 8454, Mar. 8, 1990; 59 
FR 11912, Mar. 15, 1994]



Sec. 404.2103  Definitions.

    For purposes of this subpart:
    Accept the beneficiary as a client for VR services means that the 
State VR agency determines that the individual is eligible for VR 
services and places the individual into an active caseload status for 
development of an individualized written rehabilitation program.
    Act means the Social Security Act, as amended.
    Alternate participants means any public or private agencies (except 
participating State VR agencies (see Sec. 404.2104)), organizations, 
institutions, or individuals with whom the Commissioner has entered into 
an agreement or contract to provide VR services.
    Commissioner means the Commissioner of Social Security or the 
Commissioner's designee.
    Disability means ``disability'' or ``blindness'' as defined in 
sections 216(i) and 223 of the Act.
    Disability beneficiary means a disabled individual who is entitled 
to benefits under section 223, 202(d), 202(e) or 202(f)

[[Page 536]]

of the act or is continuing to receive payment under section 225(b) of 
the Act after his or her disabling physical or mental impairments have 
ceased.
    Good cause for VR refusal (as described in Sec. 404.2113) is defined 
in Sec. 404.422(e) of this part.
    Medical recovery for purposes of this subpart is established when a 
beneficiary's disability entitlement ceases for any medical reason 
(other than death). The determination of medical recovery is made by the 
Commissioner in deciding a beneficiary's continuing entitlement to 
benefits.
    Place the beneficiary into an extended evaluation process means that 
the State VR agency determines that an extended evaluation of the 
individual's VR potential is necessary to determine whether the 
individual is eligible for VR services and places the individual into an 
extended evaluation status.
    Secretary means the Secretary of the Department of Health and Human 
Services or the Secretary's designee.
    SGA means substantial gainful activity performed by an individual as 
defined in Secs. 404.1571 through 404.1575 or Sec. 404.1584 of this 
subpart.
    State means any of the 50 States of the United States, the 
Commonwealth of Puerto Rico, the District of Columbia, the Virgin 
Islands, or Guam. It includes the State VR agency.
    Trust Funds means the Federal Old-Age and Survivors Insurance Trust 
Fund and the Federal Disability Insurance Trust Fund.
    Vocational rehabilitation services has the meaning assigned to it 
under title I of the Rehabilitation Act of 1973.
    VR agency means an agency of the State which has been designated by 
the State to provide vocational rehabilitation services under title I of 
the Rehabilitation Act of 1973.
    Waiting period means a five consecutive calendar month period 
throughout which an individual must be under a disability and which must 
be served before disability benefits can be paid (see Sec. 404.315(d)).
    We, us and our refer to the Social Security Administration (SSA) or 
the Secretary, as appropriate.

[48 FR 6293, Feb. 10, 1983, as amended at 55 FR 8454, Mar. 8, 1990; 59 
FR 11912, Mar. 15, 1994]



Sec. 404.2104  Participation by State VR agencies or alternate participants.

    (a) General. In order to participate in the payment program under 
this subpart through its VR agency(ies), a State must have a plan which 
meets the requirements of title I of the Rehabilitation Act of 1973, as 
amended. An alternate participant must have a similar plan and otherwise 
qualify under Sec. 404.2106.
    (b) Participation by States. (1) The opportunity to participate 
through its VR agency(ies) with respect to disability beneficiaries in 
the State will be offered first to the State in accordance with 
paragraph (c) of this section, unless the State has notified us in 
advance under paragraph (e)(1) of this section of its decision not to 
participate or to limit such participation.
    (2) A State with one or more approved VR agencies may choose to 
limit participation of those agencies to a certain class(es) of 
disability beneficiaries. For example, a State with separate VR agencies 
for the blind and disabled may choose to limit participation to the VR 
agency for the blind. In such a case, we would give the State, through 
its VR agency for the blind, the opportunity to participate with respect 
to blind disability beneficiaries in the State in accordance with 
paragraph (d) of this section. We would arrange for VR services for non-
blind disability beneficiaries in the State through an alternate 
participant(s). A State that chooses to limit participation of its VR 
agency(ies) must notify us in advance under paragraph (e)(1) of this 
section of its decision to limit such participation.
    (3) If a State chooses to participate by using a State agency other 
than a VR agency with a plan for VR services approved under title I of 
the Rehabilitation Act of 1973, as amended, that State agency may 
participate only as an alternate participant.
    (c) Opportunity for participation through State VR agencies. (1) 
Unless a State has decided not to participate or to limit participation, 
we will give the State the opportunity to participate through its VR 
agency(ies) with respect to disability beneficiaries in the State by 
referring such beneficiaries first to the State VR agency(ies) for

[[Page 537]]

necessary VR services. A State, through its VR agency(ies), may 
participate with respect to any beneficiary so referred by accepting the 
beneficiary as a client for VR services or placing the beneficiary into 
an extended evaluation process and notifying us under paragraph (c)(2) 
of this section of such acceptance or placement.
    (2)(i) In order for the State to participate with respect to a 
disability beneficiary whom we referred to a State VR agency, the State 
VR agency must notify the appropriate Regional Commissioner (SSA) in 
writing or through electronic notification of its decision either to 
accept the beneficiary as a client for VR services or to place the 
beneficiary into an extended evaluation process. The notice must be 
received by the appropriate Regional Commissioner (SSA) no later than 
the close of the fourth month following the month in which we referred 
the beneficiary to the State VR agency. If we do not receive such notice 
with respect to a beneficiary whom we referred to the State VR agency, 
we may arrange for VR services for that beneficiary through an alternate 
participant.
    (ii) In any case in which a State VR agency notifies the appropriate 
Regional Commissioner (SSA) in writing within the stated time period 
under paragraph (c)(2)(i) of this section of its decision to place the 
beneficiary into an extended evaluation process, the State VR agency 
also must notify that Regional Commissioner in writing upon completion 
of the evaluation of its decision whether or not to accept the 
beneficiary as a client for VR services. If we receive a notice of a 
decision by the State VR agency to accept the beneficiary as a client 
for VR services following the completion of the extended evaluation, the 
State may continue to participate with respect to such beneficiary. If 
we receive a notice of a decision by the State VR agency not to accept 
the beneficiary as a client for VR services following the completion of 
the extended evaluation, we may arrange for VR services for that 
beneficiary through an alternate participant.
    (d) Opportunity for limited participation through State VR agencies. 
If a State has decided under paragraph (e)(1) of this section to limit 
participation of its VR agency(ies) to a certain class(es) of disability 
beneficiaries in the State, we will give the State the opportunity to 
participate with respect to such class(es) of disability beneficiaries 
by referring such beneficiaries first to the State VR agency(ies) for 
necessary VR services. The State, through its VR agency(ies), may 
participate with respect to any beneficiary so referred by accepting the 
beneficiary as a client for VR services or placing the beneficiary into 
an extended evaluation process and notifying us under paragraph (c)(2) 
of this section of such acceptance or placement.
    (e) Decision of a State not to participate or to limit 
participation. (1) A State may choose not to participate through its VR 
agency(ies) with respect to any disability beneficiaries in the State, 
or it may choose to limit participation of its VR agency(ies) to a 
certain class(es) of disability beneficiaries in the State. A State 
which decides not to participate or to limit participation must provide 
advance written notice of that decision to the appropriate Regional 
Commissioner (SSA). Unless a State specifies a later month, a decision 
not to participate or to limit participation will be effective beginning 
with the third month following the month in which the notice of the 
decision is received by the appropriate Regional Commissioner (SSA). The 
notice of the State decision must be submitted by an official authorized 
to act for the State for this purpose. A State must provide to the 
appropriate Regional Commissioner (SSA) an opinion from the State's 
Attorney General verifying the authority of the official who sent the 
notice to act for the State. This opinion will not be necessary if the 
notice is signed by the Governor of the State.
    (2)(i) If a State has decided not to participate through its VR 
agency(ies), we may arrange for VR services through an alternate 
participant(s) for disability beneficiaries in the State.
    (ii) If a State has decided to limit participation of its VR 
agency(ies) to a

[[Page 538]]

certain class(es) of disability beneficiaries, we may arrange for VR 
services through an alternate participant(s) for the class(es) of 
disability beneficiaries in the State excluded from the scope of the 
State's participation.
    (3) A State which has decided not to participate or to limit 
participation may participate later through its VR agency(ies) in 
accordance with paragraph (c) of this section, provided that such 
participation will not conflict with any previous commitment which we 
may have made to an alternate participant(s) under paragraph (e)(2) of 
this section. A State which decides to resume participation under 
paragraph (c) of this section must provide advance written notice of 
that decision to the appropriate Regional Commissioner (SSA). Unless a 
commitment to an alternate participant(s) requires otherwise, a decision 
of a State to resume participation under paragraph (c) of this section 
will be effective beginning with the third month following the month in 
which the notice of the decision is received by the appropriate Regional 
Commissioner (SSA) or, if later, with a month specified by the State. 
The notice of the State decision must be submitted by an official 
authorized to act for the State as explained in paragraph (e)(1) of this 
section.
    (f) Use of alternate participants. The Commissioner, by written 
agreement or contract, may arrange for VR services through an alternate 
participant(s) for any disability beneficiary in the State with respect 
to whom the State is unwilling to participate through its VR 
agency(ies). In such a case, we may refer the beneficiary to such 
alternate participant for necessary VR services. The Commissioner will 
find that a State is unwilling to participate with respect to any of the 
following disability beneficiaries in that State:
    (1) A disability beneficiary whom we referred to a State VR agency 
under paragraph (c) or (d) of this section if we do not receive a notice 
within the stated time period under paragraph (c)(2)(i) of this section 
of a decision by the VR agency either to accept the beneficiary as a 
client for VR services or to place the beneficiary into an extended 
evaluation process;
    (2) A disability beneficiary with respect to whom we receive a 
notice under paragraph (c)(2)(ii) of this section of a decision by the 
VR agency not to accept the beneficiary as a client for VR services 
following the completion of the extended evaluation;
    (3) The class(es) of disability beneficiaries excluded from the 
scope of the State's participation if the State has decided to limit 
participation of its VR agency(ies); and
    (4) All disability beneficiaries in the State if the State has 
decided not to participate through its VR agency(ies).

[59 FR 11912, Mar. 15, 1994]



Sec. 404.2106  Basic qualifications for alternate participants.

    (a) General. We may arrange for VR services through an alternate 
participant by written agreement or contract as explained in 
Sec. 404.2104(f). An alternate participant may be a public or private 
agency, organization, institution or individual (that is, any entity 
whether for-profit or not-for-profit), other than a State VR agency.
    (1) An alternate participant must--
    (i) Be licensed, certified, accredited, or registered, as 
appropriate, to provide VR services in the State in which it provides 
services; and
    (ii) Under the terms of the written contract or agreement, have a 
plan similar to the State plan described in Sec. 404.2104(a) which shall 
govern the provision of VR services to individuals.
    (2) We will not use as an alternate participant any agency, 
organization, institution, or individual--
    (i) Whose license, accreditation, certification, or registration is 
suspended or revoked for reasons concerning professional competence or 
conduct or financial integrity;
    (ii) Who has surrendered such license, accreditation, certification, 
or registration pending a final determination of a formal disciplinary 
proceeding; or
    (iii) Who is precluded from Federal procurement or nonprocurement 
programs.
    (b) Standards for the provision of VR services. An alternate 
participant's plan must provide, among other things, that

[[Page 539]]

the provision of VR services to individuals will meet certain minimum 
standards, including, but not limited to, the following:
    (1) All medical and related health services furnished will be 
prescribed by, or provided under the formal supervision of, persons 
licensed to prescribe or supervise the provision of these services in 
the State;
    (2) Only qualified personnel and rehabilitation facilities will be 
used to furnish VR services; and
    (3) No personnel or rehabilitation facility described in paragraph 
(a)(2) (i), (ii), or (iii) of this section will be used to provide VR 
services.

[59 FR 11914, Mar. 15, 1994]

                           Payment Provisions



Sec. 404.2108  Requirements for payment.

    (a) The State VR agency or alternate participant must file a claim 
for payment in each individual case within the time periods specified in 
Sec. 404.2116;
    (b) The claim for payment must be in a form prescribed by us and 
contain the following information:
    (1) A description of each service provided;
    (2) When the service was provided; and
    (3) The cost of the service;
    (c) The VR services for which payment is being requested must have 
been provided during the period specified in Sec. 404.2115;
    (d) The VR services for which payment is being requested must have 
been provided under a State plan for VR services approved under title I 
of the Rehabilitation Act of 1973, as amended, or, in the case of an 
alternate participant, under a negotiated plan, and must be services 
that are described in Sec. 404.2114;
    (e) The individual must meet one of the VR payment provisions 
specified in Sec. 404.2101;
    (f) The State VR agency or alternate participant must maintain, and 
provide as we may require, adequate documentation of all services and 
costs for all disability beneficiaries with respect to whom a State VR 
agency or alternate participant could potentially request payment for 
services and costs under this subpart; and
    (g) The amount to be paid must be reasonable and necessary and be in 
compliance with the cost guidelines specified in Sec. 404.2117.

[48 FR 6293, Feb. 10, 1983, as amended at 55 FR 8454, Mar. 8, 1990; 59 
FR 11914, Mar. 15, 1994



Sec. 404.2109  Responsibility for making payment decisions.

    The Commissioner will decide--
    (a) Whether a continuous period of 9 months of SGA has been 
completed;
    (b) Whether a disability beneficiary whose disability has ceased 
should continue to receive benefits under Sec. 404.316(c), 404.337(c), 
or 404.352(c) for a month after October 1984, based on his or her 
continued participation in a VR program;
    (c) Whether an individual, without good cause, refused to continue 
to accept VR services or failed to cooperate in a VR program for a 
month(s) after October 1984, and whether deductions should be imposed 
against the individual's disability benefits;
    (d) If and when medical recovery has occurred;
    (e) Whether documentation of VR services and expenditures is 
adequate;
    (f) If payment is to be based on completion of a continuous 9-month 
period of SGA, whether the VR services contributed to the continuous 
period of SGA;
    (g) Whether a VR service is a service described in Sec. 404.2114; 
and
    (h) What VR costs were reasonable and necessary and will be paid.

[55 FR 8454, Mar. 8, 1990, as amended at 59 FR 11914, Mar. 15, 1994]



Sec. 404.2110  What we mean by ``SGA'' and by ``a continuous period of 9 months''.

    (a) What we mean by ``SGA''. In determining whether an individual's 
work is SGA, we will follow the rules in Secs. 404.1572 through 
404.1575. We will follow these same rules for individuals who are 
statutorily blind, but we will evaluate the earnings in accordance with 
the rules in Sec. 404.1584(d).
    (b) What we mean by ``a continuous period of 9 months''. A 
continuous period of 9 months ordinarily means a period of 9 consecutive 
calendar months. Exception: When an individual does not

[[Page 540]]

perform SGA in 9 consecutive calendar months, he or she will be 
considered to have done so if--
    (1) The individual performs 9 months of SGA within 10 consecutive 
months and has monthly earnings that meet or exceed the guidelines in 
Sec. 404.1574(b)(2), or Sec. 404.1584(d) if the individual is 
statutorily blind; or
    (2) The individual performs at least 9 months of SGA within 12 
consecutive months, and the reason for not performing SGA in 2 or 3 of 
those months was due to circumstances beyond his or her control and 
unrelated to the impairment (e.g., the employer closed down for 3 
months).
    (c) What work we consider. In determining if a continuous period of 
SGA has been completed, all of an individual's work activity may be 
evaluated for purposes of this section, including work performed before 
October 1981, during the waiting period, during the trial work period 
and after entitlement to disability benefits terminated. We will 
ordinarily consider only the first 9 months of SGA that occur. The 
exception will be if an individual who completed 9 months of SGA later 
stops performing SGA, receives VR services and then performs SGA for a 
9-month period. See Sec. 404.2115 for the use of the continuous period 
in determining payment for VR services.

[48 FR 6293, Feb. 10, 1983, as amended at 55 FR 8454, Mar. 8, 1990]



Sec. 404.2111  Criteria for determining when VR services will be considered to have contributed to a continuous period of 9 months.

    The State VR agency or alternate participant may be paid for VR 
services if such services contribute to the individual's performance of 
a continuous 9-month period of SGA. The following criteria apply to 
individuals who received more than just evaluation services. If a State 
VR agency or alternate participant claims payment for services to an 
individual who received only evaluation services, it must establish that 
the individual's continuous period or medical recovery (if medical 
recovery occurred before completion of a continuous period) would not 
have occurred without the services provided. In applying the criteria 
below, we will consider services described in Sec. 404.2114 that were 
initiated, coordinated or provided, including services before October 1, 
1981.
    (a) Continuous period without medical recovery. If an individual who 
has completed a ``continuous period'' of SGA has not medically recovered 
as of the date of completion of the period, the determination as to 
whether VR services contributed will depend on whether the continuous 
period began one year or less after VR services ended or more than one 
year after VR services ended.
    (1) One year or less. Any VR services which significantly motivated 
or assisted the individual in returning to, or continuing in, SGA will 
be considered to have contributed to the continuous period.
    (2) More than one year. (i) If the continuous period was preceded by 
transitional work activity (employment or self-employment which 
gradually evolved, with or without periodic interruption, into SGA), and 
that work activity began less than a year after VR services ended, any 
VR services which significantly motivated or assisted the individual in 
returning to, or continuing in, SGA will be considered to have 
contributed to the continuous period.
    (ii) If the continuous period was not preceded by transitional work 
activity that began less than a year after VR services ended, VR 
services will be considered to have contributed to the continuous period 
only if it is reasonable to conclude that the work activity which 
constitutes a continuous period could not have occurred without the VR 
services (e.g., training).
    (b) Continuous period with medical recovery occurring before 
completion. (1) If an individual medically recovers before a continuous 
period has been completed, VR services under paragraph (a) of this 
section will not be payable unless some VR services contributed to the 
medical recovery. VR services will be considered to have contributed to 
the medical recovery if--
    (i) The individualized written rehabilitation program (IWRP) or, in 
the case of an alternate participant, a similar document, included 
medical services; and

[[Page 541]]

    (ii) The medical recovery occurred, at least in part, because of 
these medical services. (For example, the individual's medical recovery 
was based on improvement in a back condition which, at least in part, 
stemmed from surgery initiated, coordinated or provided under an IWRP).
    (2) In some instances, the State VR agency or alternate participant 
will not have provided, initiated, or coordinated medical services. If 
this happens, payment for VR services may still be possible under 
paragraph (a) of this section if: (i) The medical recovery was not 
expected by us; and (ii) the individual's impairment is determined by us 
to be of such a nature that any medical services provided would not 
ordinarily have resulted in, or contributed to, the medical cessation.

[48 FR 6293, Feb. 10, 1983, as amended at 59 FR 11914, Mar. 15, 1994]



Sec. 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.

    Sections 404.1586(g), 404.316(c), 404.337(c), and 404.352(c) explain 
the criteria we will use in determining if an individual whose 
disability has ceased should continue to receive disability benefits 
from us because of his or her continued participation in a VR program. A 
VR agency or alternate participant can be paid for the cost of VR 
services provided to an individual if the individual was receiving 
benefits in a month or months, after October 1984, based on 
Sec. 404.316(c), 404.337(c), or 404.352(c). If this requirement is met, 
a VR agency or alternate participant can be paid for the costs of VR 
services provided within the period specified in Sec. 404.2115, subject 
to the other payment and administrative provisions of this subpart.

[55 FR 8455, Mar. 8, 1990]



Sec. 404.2113  Payment for VR services in a case of VR refusal.

    (a) For purposes of this section, VR refusal means an individual's 
refusal to continue to accept VR services or failure to cooperate in 
such a manner as to preclude the individual's successful rehabilitation.
    (b) No later than the 60th day after the State VR agency or 
alternate participant makes a preliminary finding that an individual 
refuses to continue to accept VR services or fails to cooperate in a VR 
program, the State VR agency or alternate participant shall report to 
the appropriate Regional Commissioner (SSA) in writing such individual's 
VR refusal so that we may make the determination described in 
Sec. 404.2109(c).
    (c) Payment can be made to a State VR agency or alternate 
participant for the costs of VR services provided to an individual who, 
after filing an application with the State VR agency or alternate 
participant for rehabilitation services, without good cause, refuses to 
continue to accept VR services or fails to cooperate in such a manner as 
to preclude the individual's successful rehabilitation. A State VR 
agency or alternate participant may be paid, subject to the provisions 
of this subpart, for the costs of VR services provided to an individual 
prior to his or her VR refusal if deductions have been imposed against 
the individual's monthly disability benefits for a month(s) after 
October 1984 because of such VR refusal.

[59 FR 11915, Mar. 15, 1994, as amended at 61 FR 31025, June 19, 1996]



Sec. 404.2114  Services for which payment may be made.

    (a) General. Payment may be made for VR services provided by a State 
VR agency in accordance with title I of the Rehabilitation Act of 1973, 
as amended, or by an alternate participant under a negotiated plan, 
subject to the limitations and conditions in this subpart. VR services 
for which payment may be made under this subpart include only those 
services described in paragraph (b) of this section which are--
    (1) Necessary to determine an individual's eligibility for VR 
services or the nature and scope of the services to be provided; or
    (2) Provided by a State VR agency under an IWRP, or by an alternate 
participant under a similar document, but only if the services could 
reasonably be expected to motivate or assist the individual in returning 
to, or continuing in, SGA.

[[Page 542]]

    (b) Specific services. Payment may be made under this subpart only 
for the following VR services:
    (1) An assessment for determining an individual's eligibility for VR 
services and vocational rehabilitation needs by qualified personnel, 
including, if appropriate, an assessment by personnel skilled in 
rehabilitation technology, and which includes determining--
    (i) The nature and extent of the physical or mental impairment(s) 
and the resultant impact on the individual's employability;
    (ii) The likelihood that an individual will benefit from vocational 
rehabilitation services in terms of employability; and
    (iii) An employment goal consistent with the capacities of the 
individual and employment opportunities;
    (2) Counseling and guidance, including personal adjustment 
counseling, and those referrals and other services necessary to help an 
individual secure needed services from other agencies;
    (3) Physical and mental restoration services necessary to correct or 
substantially modify a physical or mental condition which is stable or 
slowly progressive and which constitutes an impediment to suitable 
employment at or above the SGA level;
    (4) Vocational and other training services, including personal and 
vocational adjustment, books, tools, and other training materials, 
except that training or training services in institutions of higher 
education will be covered under this section only if maximum efforts 
have been made by the State VR agency or alternate participant to secure 
grant assistance in whole or in part from other sources;
    (5) Maintenance expenses that are extra living expenses over and 
above the individual's normal living expenses and that are incurred 
solely because of and while the individual is participating in the VR 
program and that are necessary in order for the individual to benefit 
from other necessary VR services;
    (6) Travel and related expenses necessary to transport an individual 
for purpose of enabling the individual's participation in other 
necessary VR services;
    (7) Services to family members of a disabled individual only if 
necessary to the successful vocational rehabilitation of that 
individual;
    (8) Interpreter services and note-taking services for an individual 
who is deaf and tactile interpreting for an individual who is deaf and 
blind;
    (9) Reader services, rehabilitation teaching services, note-taking 
services, and orientation and mobility services for an individual who is 
blind;
    (10) Telecommunications, sensory, and other technological aids and 
devices;
    (11) Work-related placement services to secure suitable employment;
    (12) Post-employment services necessary to maintain, regain or 
advance into suitable employment at or above the SGA level;
    (13) Occupational licenses, tools, equipment, initial stocks, and 
supplies;
    (14) Rehabilitation technology services; and
    (15) Other goods and services that can reasonably be expected to 
motivate or assist the individual in returning to, or continuing in, 
SGA.

[59 FR 11915, Mar. 15, 1994]



Sec. 404.2115  When services must have been provided.

    (a) In order for the VR agency or alternate participant to be paid, 
the services must have been provided--
    (1) After September 30, 1981;
    (2) No earlier than the beginning of the waiting period or the first 
month of entitlement, if no waiting period is required; and
    (3) Before completion of a continuous 9-month period of SGA or 
termination of entitlement to disability benefits, whichever occurs 
first.
    (b) If an individual who is entitled to disability benefits under 
this part also is or has been receiving disability or blindness benefits 
under part 416 of this chapter, the determination as to when services 
must have been provided may be made under this section or Sec. 416.2215 
of this chapter, whichever is advantageous to the State VR agency or 
alternate participant that is participating in both VR programs.

[55 FR 8455, Mar. 8, 1990, as amended at 61 FR 31025, June 19, 1996]

[[Page 543]]



Sec. 404.2116  When claims for payment for VR services must be made (filing deadlines).

    The State VR agency or alternate participant must file a claim for 
payment in each individual case within the following time periods:
    (a) A claim for payment for VR services based on the individual's 
completion of a continuous 9-month period of SGA must be filed within 12 
months after the month in which the continuous 9-month period of SGA is 
completed.
    (b) A claim for payment for VR services provided to an individual 
whose disability benefits were continued after disability has ceased 
because of that individual's continued participation in a VR program 
must be filed as follows:
    (1) If a written notice requesting that a claim be filed was sent to 
the State VR agency or alternate participant, a claim must be filed 
within 90 days following the month in which VR services end, or if 
later, within 90 days after receipt of the notice.
    (2) If no written notice was sent to the State VR agency or 
alternate participant, a claim must be filed within 12 months after the 
month in which VR services end.
    (c) A claim for payment based on an individual's refusal, without 
good cause, to continue or cooperate in a VR program must be filed--
    (1) Within 90 days after the VR agency or alternate participant 
receives our written request to file a claim for payment; or
    (2) If no written notice was sent to the State VR agency or 
alternate participant, a claim must be filed within 12 months after the 
first month for which deductions are imposed against disability benefits 
because of such VR refusal.

[55 FR 8455, Mar. 8, 1990, as amended at 61 FR 31025, June 19, 1996]



Sec. 404.2117  What costs will be paid.

    In accordance with section 222(d) of the Social Security Act, the 
Secretary will pay the State VR agency or alternate participant for the 
VR services described in Sec. 404.2114 which were provided during the 
period described in Sec. 404.2115 and which meet the criteria in 
Sec. 404.2111, Sec. 404.2112, or Sec. 404.2113, but subject to the 
following limitations:
    (a) The cost must have been incurred by the State VR agency or 
alternate participant;
    (b) The cost must not have been paid or be payable from some other 
source. For this purpose, State VR agencies or alternate participants 
will be required to seek payment or services from other sources in 
accordance with the ``similar benefit'' provisions under 34 CFR part 
361, including making maximum efforts to secure grant assistance in 
whole or part from other sources for training or training services in 
institutions of higher education. Alternate participants will not be 
required to consider State VR services a similar benefit.
    (c)(1) The cost must be reasonable and necessary, in that it 
complies with the written cost-containment policies of the State VR 
agency or, in the case of an alternate participant, it complies with 
similar written policies established under a negotiated plan. A cost 
which complies with these policies will be considered necessary only if 
the cost is for a VR service described in Sec. 404.2114. The State VR 
agency or alternate participant must maintain and use these cost-
containment policies, including any reasonable and appropriate fee 
schedules, to govern the costs incurred for all VR services, including 
the rates of payment for all purchased services, for which payment will 
be requested under this subpart. For the purpose of this subpart, the 
written cost-containment policies must provide guidelines designed to 
ensure--
    (i) The lowest reasonable cost for such services; and
    (ii) Sufficient flexibility so as to allow for an individual's 
needs.
    (2) The State VR agency shall submit to us before the end of the 
first calendar quarter of each year a written statement certifying that 
cost-containment policies are in effect and are adhered to in procuring 
and providing goods and services for which the State VR agency requests 
payment under this subpart. Such certification must be signed by the 
State's chief financial official or the head of the VR agency. Each 
certification must specify the

[[Page 544]]

basis upon which it is made, e.g., a recent audit by an authorized 
State, Federal or private auditor (or other independent compliance 
review) and the date of such audit (or compliance review). In the case 
of an alternate participant, these certification requirements shall be 
incorporated into the negotiated agreement or contract. We may request 
the State VR agency or alternate participant to submit to us a copy(ies) 
of its specific written cost-containment policies and procedures (e.g., 
any guidelines and fee schedules for a given year) if we determine that 
such additional information is necessary to ensure compliance with the 
requirements of this subpart. The State VR agency or alternate 
participant shall provide such information when requested by us.
    (d) The total payment in each case, including any prior payments 
related to earlier continuous 9-month periods of SGA made under this 
subpart, must not be so high as to preclude a ``net saving'' to the 
trust funds (a ``net saving'' is the difference between the estimated 
saving to the trust funds, if disability benefits eventually terminate, 
and the total amount we pay to the State VR agency or alternate 
participant);
    (e) Any payment to the State VR agency for either direct or indirect 
VR expenses must be consistent with the cost principles described in OMB 
Circular No. A-87, published at 46 FR 9548 on January 28, 1981 (see 
Sec. 404.2118(a) for cost principles applicable to alternate 
participants);
    (f) Payment for VR services or costs may be made under more than one 
of the VR payment provisions described in Secs. 404.2111 through 
404.2113 of this subpart and similar provisions in Secs. 416.2211 
through 416.2213 of subpart V of part 416. However, payment will not be 
made more than once for the same VR service or cost. For example, 
payment to a VR agency based upon the completion of a continuous 9-month 
period of SGA which was made after an earlier payment based upon VR 
refusal, would only include payment for those VR costs incurred or 
services provided after the individual resumed VR services after 
refusal; and
    (g) Payment will be made for administrative costs and for counseling 
and placement costs. This payment may be on a formula basis, or on an 
actual cost basis, whichever the State VR agency prefers. The formula 
will be negotiated. The payment will also be subject to the preceding 
limitations.

[48 FR 6293, Feb. 10, 1983. Redesignated and amended at 55 FR 8454, 
8455, Mar. 8, 1990; 59 FR 11915, Mar. 15, 1994]

                        Administrative Provisions



Sec. 404.2118  Applicability of these provisions to alternate participants.

    When an alternate participant provides rehabilitation services under 
this subpart, the payment procedures stated herein shall apply except 
that:
    (a) Payment must be consistent with the cost principles described in 
45 CFR part 74 or 41 CFR parts 1-15 as appropriate; and
    (b) Any disputes, including appeals of audit determinations, shall 
be resolved in accordance with applicable statutes and regulations which 
will be specified in the negotiated agreement or contract.

[48 FR 6293, Feb. 10, 1983. Redesignated at 55 FR 8454, Mar. 8, 1990]



Sec. 404.2119  Method of payment.

    Payment to the State VR agencies or alternate participants pursuant 
to this subpart will be made either by advancement of funds or by 
payment for services provided (with necessary adjustments for any 
overpayments and underpayments), as decided by the Commissioner.

[55 FR 8455, Mar. 8, 1990]



Sec. 404.2120  Audits.

    (a) General. The State or alternate participant shall permit us and 
the Comptroller General of the United States (including duly authorized 
representatives) access to and the right to examine records relating to 
the services and costs for which payment was requested or made under 
these regulations. These records shall be retained by the State or 
alternate participant

[[Page 545]]

for the periods of time specified for retention of records in the 
Federal Procurement Regulations (41 CFR parts 1-20).
    (b) Audit basis. Auditing will be based on cost principles and 
written guidelines in effect at the time services were provided and 
costs were incurred. The State VR agency or alternate participant will 
be informed and given a full explanation of any questioned items. It 
will be given a reasonable time to explain questioned items. Any 
explanation furnished by the State VR agency or alternate participant 
will be given full consideration before a final determination is made on 
questioned items in the audit report.
    (c) Appeal of audit determinations. The appropriate SSA Regional 
Commissioner will notify the State VR agency or alternate participant in 
writing of his or her final determination on the audit report. If the 
State VR agency (see Sec. 404.2118(b) for alternate participants) 
disagrees with that determination, it may request reconsideration in 
writing within 60 days after receiving the Regional Commissioner's 
notice of the determination. The Commissioner will make a determination 
and notify the State VR agency of that decision in writing, usually, no 
later than 45 days from the date of appeal. The decision by the 
Commissioner will be final and conclusive unless the State VR agency 
appeals that decision in writing in accordance with 45 CFR part 16 to 
the Department of Health and Human Services Departmental Grant Appeals 
Board within 30 days after receiving it.

[48 FR 6293, Feb. 10, 1983, as amended at 55 FR 8456, Mar. 8, 1990]



Sec. 404.2121  Validation reviews.

    (a) General. We will conduct a validation review of a sample of the 
claims for payment filed by each State VR agency or alternate 
participant. We will conduct some of these reviews on a prepayment basis 
and some on a postpayment basis. We may review a specific claim, a 
sample of the claims, or all the claims filed by any State VR agency or 
alternate participant, if we determine that such review is necessary to 
ensure compliance with the requirements of this subpart. For each claim 
selected for review, the State VR agency or alternate participant must 
submit such records of the VR services and costs for which payment has 
been requested or made under this subpart, or copies of such records, as 
we may require to ensure that the services and costs meet the 
requirements for payment. For claims for cases described in 
Sec. 404.2101(a), a clear explanation or existing documentation which 
demonstrates how the service contributed to the individual's performance 
of a continuous 9-month period of SGA must be provided. For claims for 
cases described in Sec. 404.2101(b) or (c), a clear explanation or 
existing documentation which demonstrates how the service was reasonably 
expected to motivate or assist the individual to return to or continue 
in SGA must be provided. If we find in any prepayment validation review, 
that the scope or content of the information is inadequate, we will 
request additional information and will withhold payment until adequate 
information has been provided. The State VR agency or alternate 
participant shall permit us (including duly authorized representatives) 
access to, and the right to examine, any records relating to such 
services and costs. Any review performed under this section will not be 
considered an audit for purposes of this subpart.
    (b) Purpose. The primary purpose of these reviews is--
    (1) To ensure that the VR services and costs meet the requirements 
for payment under this subpart;
    (2) To assess the validity of our documentation requirements; and
    (3) To assess the need for additional validation reviews or 
additional documentation requirements for any State VR agency or 
alternate participant to ensure compliance with the requirements under 
this subpart.
    (c) Determinations. In any validation review, we will determine 
whether the VR services and costs meet the requirements for payment and 
determine the amount of payment. We will notify in writing the State VR 
agency or alternate participant of our determination. If we find in any 
postpayment validation review that more or less than the correct amount 
of payment was made for a claim, we will determine that an

[[Page 546]]

overpayment or underpayment has occurred and will notify the State VR 
agency or alternate participant that we will make the appropriate 
adjustment.
    (d) Appeals. If the State VR agency or alternate participant 
disagrees with our determination under this section, it may appeal that 
determination in accordance with Sec. 404.2127. For purposes of this 
section, an appeal must be filed within 60 days after receiving the 
notice of our determination.

[59 FR 11916, Mar. 15, 1994]



Sec. 404.2122  Confidentiality of information and records.

    The State or alternate participant shall comply with the provisions 
for confidentiality of information, including the security of systems, 
and records requirements described in 20 CFR part 401 and pertinent 
written guidelines (see Sec. 404.2123).



Sec. 404.2123  Other Federal laws and regulations.

    Each State VR agency and alternate participant shall comply with the 
provisions of other Federal laws and regulations that directly affect 
its responsibilities in carrying out the vocational rehabilitation 
function.



Sec. 404.2127  Resolution of disputes.

    (a) Disputes on the amount to be paid. The appropriate SSA official 
will notify the State VR agency or alternative participant in writing of 
his or her determination concerning the amount to be paid. If the State 
VR agency (see Sec. 404.2118(b) for alternate participants) disagrees 
with that determination, the State VR agency may request reconsideration 
in writing within 60 days after receiving the notice of determination. 
The Commissioner will make a determination and notify the State VR 
agency of that decision in writing, usually no later than 45 days from 
the date of the State VR agency's appeal. The decision by the 
Commissioner will be final and conclusive upon the State VR agency 
unless the State VR agency appeals that decision in writing in 
accordance with 45 CFR part 16 to the Department of Health and Human 
Services Departmental Grant Appeals Board within 30 days after receiving 
the Commissioner's decision.
    (b) Disputes on whether there was a continuous period of SGA and 
whether VR services contributed to a continuous period of SGA. The rules 
in paragraph (a) of this section will apply, except that the 
Commissioner's decision will be final and conclusive. There is no right 
of appeal to the Grant Appeals Board.
    (c) Disputes on determinations made by the Secretary which affect a 
disability beneficiary's rights to benefits. Determinations made by the 
Secretary which affect an individual's right to benefits (e.g., 
determinations that disability benefits should be terminated, denied, 
suspended, continued or begun at a different date than alleged) cannot 
be appealed by a State VR agency or alternate participant. Because these 
determinations are an integral part of the disability benefits claims 
process, they can only be appealed by the beneficiary or applicant whose 
rights are affected or by his or her authorized representative. However, 
if an appeal of an unfavorable determination is made by the individual 
and is successful, the new determination would also apply for purposes 
of this subpart. While a VR agency or alternate participant cannot 
appeal a determination made by the Secretary which affects a 
beneficiary's or applicant's rights, the VR agency can furnish any 
evidence it may have which would support a revision of a determination.

[48 FR 6293, Feb. 10, 1983, as amended at 55 FR 8456, Mar. 8, 1990]



PART 410--FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969, TITLE IV--BLACK LUNG BENEFITS (1969-    )--Table of Contents




      Subpart A--Introduction, General Provisions, and Definitions

Sec.
410.101  Introduction.
410.110  General definitions and use of terms.
410.120  Disclosure of program information.
410.130  Periods of limitation ending on nonworkdays.

[[Page 547]]

Subpart B--Requirements for Entitlement; Duration of Entitlement; Filing 
                         of Claims and Evidence

410.200  Types of benefits; general.
410.201  Conditions of entitlement; miner.
410.202  Duration of entitlement; miner.
410.210  Conditions of entitlement; widow or surviving divorced wife.
410.211  Duration of entitlement; widow or surviving divorced wife.
410.212  Conditions of entitlement; child.
410.213  Duration of entitlement; child.
410.214  Conditions of entitlement; parent, brother, or sister.
410.215  Duration of entitlement; parent, brother, or sister.
410.216  ``Good cause'' for delayed filing of proof of support.
410.219  Filing a claim under State workmen's compensation law; when 
          filing such claim shall be considered futile.
410.220  Claim for benefits; definitions.
410.221  Prescribed application and request forms.
410.222  Execution of a claim.
410.223  Evidence of authority to execute a claim on behalf of another.
410.224  Claimant must be alive when claim is filed.
410.226  Periods for which claims are effective.
410.227  When a claim is considered to have been filed; time and place 
          of filing.
410.228  Requests and notices to be in writing.
410.229  When written statement is considered a claim; general.
410.230  Written statement filed by or for a miner on behalf of a member 
          of his family.
410.231  Time limits for filing claims.
410.232  Withdrawal of a claim.
410.233  Cancellation of a request for withdrawal.
410.234  Interim provisions.
410.240  Evidence.
410.250  Effect of conviction of felonious and intentional homicide on 
          entitlement to benefits.

                 Subpart C--Relationship and Dependency

410.300  Relationship and dependency; general.
410.310  Determination of relationship; wife.
410.311  Determination of relationship; divorced wife.
410.320  Determination of relationship; widow.
410.321  Determination of relationship; surviving divorced wife.
410.330  Determination of relationship; child.
410.340  Determination of relationship; parent, brother, or sister.
410.350  Determination of dependency; wife.
410.351  Determination of dependency; divorced wife.
410.360  Determination of dependency; widow.
410.361  Determination of dependency; surviving divorced wife.
410.370  Determination of dependency; child.
410.380  Determination of dependency; parent, brother, or sister.
410.390  Time of determinations.
410.391  Legal impediment.
410.392  Domicile.
410.393  ``Member of the same household''; ``living with''; ``living in 
          the same household''; and ``living in the miner's household.''
410.394  [Reserved]
410.395  Contributions and support.

       Subpart D--Total Disability or Death Due to Pneumoconiosis

410.401  Scope of subpart D.
410.410  Total disability due to pneumoconiosis, including statutory 
          presumption.
410.412  ``Total disability'' defined.
410.414  Determining the existence of pneumoconiosis, including 
          statutory presumption.
410.416  Determining origin of pneumoconiosis, including statutory 
          presumption.
410.418  Irrebuttable presumption of total disability due to 
          pneumoconiosis.
410.422  Determining total disability: General criteria.
410.424  Determining total disability: Medical criteria only.
410.426  Determining total disability: Age, education, and work 
          experience criteria.
410.428  X-ray, biopsy, and autopsy evidence of pneumoconiosis.
410.430  Ventilatory studies.
410.432  Cessation of disability.
410.450  Death due to pneumoconiosis, including statutory presumption.
410.454  Determining the existence of pneumoconiosis, including 
          statutory presumption--survivor's claim.
410.456  Determining origin of pneumoconiosis, including statutory 
          presumption--survivor's claim.
410.458  Irrebuttable presumption of death due to pneumoconiosis--
          survivor's claim.
410.462  Presumption relating to respirable disease.
410.470  Determination by nongovernmental organization or other 
          governmental agency.
410.471  Conclusion by physician regarding miner's disability or death.
410.472  Consultative examinations.
410.473  Evidence of continuation of disability.
410.474  Place and manner of submitting evidence.

[[Page 548]]

410.475  Failure to submit evidence.
410.476  Responsibility to give notice of event which may affect a 
          change in disability status.
410.490  Interim adjudicatory rules for certain part B claims filed by a 
          miner before July 1, 1973, or by a survivor where the miner 
          died before January 1, 1974.

Appendix to Subpart D

                     Subpart E--Payment of Benefits

410.501  Payment periods.
410.505  Payees.
410.510  Computation of benefits.
410.511  Certification to dependent of augmentation portion of benefit.
410.515  Modification of benefit amounts; general.
410.520  Reductions; receipt of State benefit.
410.530  Reductions; excess earnings.
410.535  Reductions; effect of an additional claim for benefits.
410.536  Reductions; effect of augmentation of benefits based on 
          subsequent qualification of individual.
410.540  Reductions; more than one reduction event.
410.550  Nonpayment of benefits to residents of certain States.
410.560  Overpayments.
410.561  Notice of right to waiver consideration.
410.561a  When waiver may be applied and how to process the request.
410.561b  Fault.
410.561c  Defeat the purpose of title IV.
410.561d  Against equity and good conscience; defined.
410.561e  When an individual is ``without fault'' in a reduction-
          overpayment.
410.561f  When an individual is ``without fault'' in an entitlement 
          overpayment.
410.561g  When an individual is at ``fault'' in a reduction-overpayment.
410.561h  When adjustment or recovery of an overpayment will be waived.
410.563  Liability of a certifying officer.
410.565  Collection and compromise of claims for overpayment.
410.570  Underpayments.
410.580  Relation to provisions for reductions or increases.
410.581  Payments on behalf of an individual.
410.582  Submission of evidence by representative payee.
410.583  Responsibility of representative payee.
410.584  Use of benefits for current maintenance.
410.585  Conservation and investment of payments.
410.586  Use of benefits for beneficiary in institution.
410.587  Support of legally dependent spouse, child, or parent.
410.588  Claims of creditors.
410.589  Accountability.
410.590  Transfer of accumulated benefit payments.
410.591  Eligibility for services and supplies under part C of title IV 
          of the act.

     Subpart F--Determinations of Disability, Other Determinations, 
  Administrative Review, Finality of Decisions, and Representation of 
                                 Parties

410.601  Determinations of disability.
410.610  Administrative actions that are initial determinations.
410.615  Administrative actions that are not initial determinations.
410.620  Notice of initial determination.
410.621  Effect of initial determination.
410.622  Reconsideration and hearing.
410.623  Reconsideration; right to reconsideration.
410.624  Time and place of filing request.
410.625  Parties to the reconsideration.
410.626  Notice of reconsideration.
410.627  Reconsidered determination.
410.628  Notice of reconsidered determination.
410.629  Effect of a reconsidered determination.
410.629a  Expedited appeals process; conditions for use of such process.
410.629b  Expedited appeals process; place and time of filing request.
410.629c  Expedited appeals process; parties.
410.629d  Expedited appeals process; agreement requirements.
410.629e  Expedited appeals process; effect of agreement.
410.629f  Effect of a request that does not result in agreement.
410.630  Hearing; right to hearing.
410.631  Time and place of filing request.
410.632  Parties to a hearing.
410.633  Additional parties to the hearing.
410.634  Administrative Law Judge.
410.635  Disqualification of Administrative Law Judge.
410.636  Time and place of hearing.
410.637  Hearing on new issues.
410.638  Change of time and place for hearing.
410.639  Subpenas.
410.640  Conduct of hearing.
410.641  Evidence.
410.642  Witnesses.
410.643  Oral argument and written allegations.
410.644  Record of hearing.
410.645  Joint hearings.
410.646  Consolidated issues.
410.647  Waiver of right to appear and present evidence.
410.648  Dismissal of request for hearing; by application of party.
410.649  Dismissal by abandonment of party.
410.650  Dismissal for cause.

[[Page 549]]

410.651  Notice of dismissal and right to request review thereon.
410.652  Effect of dismissal.
410.653  Vacation of dismissal of request for hearing.
410.654  Administrative Law Judge's decision or certification to Appeals 
          Council.
410.655  Effect of Administrative Law Judge's decision.
410.656  Removal of hearing to Appeals Council.
410.657  Appeals Council proceedings on certification and review; 
          procedure before Appeals Council on certification by the 
          Administrative Law Judge.
410.658  Evidence in proceeding before Appeals Council.
410.659  Decision of Appeals Council.
410.660  Right to request review of Administrative Law Judge's decision 
          or dismissal.
410.661  Time and place of filing request.
410.662  Action by Appeals Council on review.
410.663  Procedure before Appeals Council on review.
410.664  Evidence admissible on review.
410.665  Decision by Appeals Council or remanding of case.
410.666  Effect of Appeals Council's decision or refusal to review.
410.667  Dismissal by Appeals Council.
410.668  Extension of time to request reconsideration.
410.669  Extension of time to request hearing or review or begin civil 
          action.
410.670  Review by Appeals Council.
410.670a  Judicial review.
410.670b  Interim provisions for the adjudication of certain claims 
          filed prior to May 19, 1972.
410.670c  Application of circuit court law.
410.671  Revision for error or other reason; time limitation generally.
410.672  Reopening initial, revised or reconsidered determinations of 
          the Administration and decisions of an Administrative Law 
          Judge or the Appeals Council; finality of determinations and 
          decisions.
410.673  Good cause for reopening a determination or decision.
410.674  Finality of suspension of benefit payments for entire taxable 
          year because of earnings.
410.675  Time limitation for revising finding suspending benefit 
          payments for entire taxable year because of earnings.
410.675a  Late completion of timely investigation.
410.676  Notice of revision.
410.677  Effect of revised determination.
410.678  Time and place of requesting hearing on revised determination.
410.679  Finality of findings with respect to other claims for benefits 
          based on the disability or death of a miner.
410.680  Imposition of reductions.
410.681  Change of ruling or legal precedent.
410.682  General applicability.
410.683  Certification of payment; determination or decision providing 
          for payment.
410.683a  [Reserved]
410.683b  Transfer or assignment.
410.684  Representation of party; appointment of representative.
410.685  Qualifications of representative.
410.686  Authority of representative.
410.686a  Proceedings before a State or Federal court.
410.686b  Fee for services performed for an individual before the Social 
          Security Administration.
410.686c  Petition for approval of fee.
410.686d  Payment of fees.
410.686e  Services rendered for an individual in a proceeding before the 
          Administration under Part B of title IV of the Act.
410.687  Rules governing the representation and advising of claimants 
          and parties.
410.687a  Effective date.
410.688  Disqualification or suspension of an individual from acting as 
          a representative in proceedings before the Administration.
410.689  Notice of charges.
410.690  Withdrawal of charges.
410.691  Referral to Bureau of Hearings and Appeals for hearing and 
          decision.
410.692  Hearing on charges.
410.693  Decision by hearing officer.
410.694  Right to request review of the hearing officer's decision.
410.695  Procedure before Appeals Council on review of hearing officer's 
          decision.
410.696  Evidence admissible on review.
410.697  Decision by Appeals Council on review of hearing officer's 
          decision.
410.698  Dismissal by Appeals Council.
410.699  Reinstatement after suspension or disqualification.
410.699a  Penalties for fraud.

 Subpart G--Rules for the Review of Denied and Pending Claims Under the 
             Black Lung Benefits Reform Act (BLBRA) of 1977

410.700  Background.
410.701  Jurisdiction for determining entitlement under Part B.
410.702  Definitions and terms.
410.703  Adjudicatory rules for determining entitlement to benefits.
410.704  Review procedures.
410.705  Duplicate claims.
410.706  Effect of Social Security Administration determination of 
          entitlement.
410.707  Hearings and appeals.

[[Page 550]]



      Subpart A--Introduction, General Provisions, and Definitions

    Authority:  Secs. 3 (g) and (h), 402, 411, 412, 413, 414, 426(a), 
and 508, 83 Stat. 744; 30 U.S.C. 802 (g) and (h), 902, 921-924, 936(a), 
and 957. sec. 410.120 also issued under sec. 1106, 53 Stat. 1398, as 
amended, 42 U.S.C. 1306.



Sec. 410.101  Introduction.

    The regulations in this part 410 (Regulation No. 10 of the Social 
Security Administration) relate to the provisions of part B (Black Lung 
Benefits) of title IV of the Federal Coal Mine Health and Safety Act of 
1969, as enacted December 30, 1969, as amended by the Black Lung 
Benefits Act of 1972, and as may hereafter be amended. The regulations 
in this part are divided into the following subparts according to 
subject content:
    (a) This subpart A contains this introduction, general provisions, 
and provisions relating to definitions and the use of terms.
    (b) Subpart B of this part relates to the requirements for 
entitlement, duration of entitlement, filing of claims, and evidence.
    (c) Subpart C of this part describes the relationship and dependency 
required for widows, children, parents, brothers, and sisters, and 
relationship and dependency requirements which affect the benefit 
amounts of entitled miners and widows.
    (d) Subpart D of this part provides standards for determining total 
disability and death due to pneumoconiosis.
    (e) Subpart E of this part relates to payment of benefits, payment 
periods, benefit rates and their modification, representative payees, 
and overpayments and underpayments.
    (f) Subpart F of this part relates to determinations of disability 
and other determinations, the procedures for administrative review, 
finality of decisions, and the representation of parties.

[36 FR 23752, Dec. 14, 1971, as amended at 37 FR 20635, Sept. 30, 1972]



Sec. 410.110  General definitions and use of terms.

    For purposes of this part, except where the context clearly 
indicates otherwise, the following definitions apply:
    (a) The Act, means the Federal Coal Mine Health and Safety Act of 
1969 (Pub. L. 91-173), enacted December 30, 1969, as amended by the 
Black Lung Benefits Act of 1972 (Pub. L. 92-303), enacted May 19, 1972, 
and as may hereafter be amended.
    (b) Benefit means the black lung benefit provided under part B of 
title IV of the Act to coal miners, to surviving widows of miners, to 
the surviving child or children of a miner, or of a widow of a miner, to 
the surviving dependent parent or parents of a miner, and to the 
surviving dependent brother(s) or sister(s) of a miner.
    (c) Secretary means the Secretary of Health, Education, and Welfare.
    (d) Commissioner means the Commissioner of Social Security.
    (e) Administration means the Social Security Administration in the 
Department of Health, Education, and Welfare.
    (f) Appeals Council means the Appeals Council of the Bureau of 
Hearings and Appeals in the Social Security Administration or such 
member or members thereof as may be designated by the Chairman.
    (g) Administrative Law Judge means an Administrative Law Judge in 
the Bureau of Hearings and Appeals of the Social Security 
Administration.
    (h) Coal mine means an area of land and all structures, facilities, 
machinery, tools, equipment, shafts, slopes, tunnels, excavations, and 
other property, real or personal, placed upon, under, or above the 
surface of such land by any person, used in, or to be used in, or 
resulting from, the work of extracting in such area bituminous coal, 
lignite, or anthracite from its natural deposits in the earth by any 
means or method, and the work of preparing the coal so extracted, and 
includes custom coal preparation facilities.
    (i) Underground coal mine means a coal mine in which the earth and 
other materials which lie above the natural deposit of coal (overburden) 
is not removed in mining. In addition to the natural deposits of coal in 
the earth, the underground mine includes all

[[Page 551]]

land, buildings and equipment appurtenant thereto.
    (j) Miner or coal miner means any individual who is working or has 
worked as an employee in a coal mine, performing functions in extracting 
the coal or preparing the coal so extracted.
    (k) The Nation's coal mines comprise all coal mines as defined in 
paragraph (h) of this section located in a State as defined in paragraph 
(l) of this section.
    (l) State includes a State of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American 
Samoa, Guam, the Trust Territory of the Pacific Islands, and prior to 
January 3, 1959, and August 21, 1959, respectively, the Territories of 
Alaska and Hawaii.
    (m) Employee means an individual in a legal relationship (between 
the person for whom he performs services and himself) of employer and 
employee under the usual common-law rules.
    (1) Generally, such relationship exists when the person for whom 
services are performed has the right to control and direct the 
individual who performs the services, not only as to the result to be 
accomplished by the work but also as to the means by which that result 
is accomplished; that is, an employee is subject to the will and control 
of the employer not only as to what shall be done but how it shall be 
done. In this connection, it is not necessary that the employer actually 
direct or control the manner in which the services are performed; it is 
sufficient if he has the right to do so. The right to discharge is also 
an important factor indicating that the person possessing that right is 
an employer. Other factors characteristic of an employer, but not 
necessarily present in every case, are the furnishing of tools and the 
furnishing of a place to work to the individual who performs the 
services. In general, if an individual is subject to the control or 
direction of another merely as to the result to be accomplished by the 
work and not as to the means and methods for accomplishing the result, 
he is an independent contractor. An individual performing services as an 
independent contractor is not as to such services an employee under the 
usual common-law rules.
    (2) Whether the relationship of employer and employee exists under 
the usual common-law rules will in doubtful cases be determined upon an 
examination of the particular facts of each case.
    (n) The Social Security Act means the Social Security Act (49 Stat. 
620) as amended from time to time.
    (o) Pneumoconiosis means: (1) A chronic dust disease of the lung 
arising out of employment in the Nation's coal mines, and includes coal 
workers' pneumoconiosis, anthracosilicosis, anthracosis, 
anthrosilicosis, massive pulmonary fibrosis, progressive massive 
fibrosis, silicosis, or silicotuberculosis, arising out of such 
employment.

For purposes of this subpart, the term also includes the following 
conditions that may be the basis for application of the statutory 
presumption of disability or death due to pneumoconiosis under the 
circumstances prescribed in section 411(c) of the Act:
    (2) Any other chronic respiratory or pulmonary impairment when the 
conditions are met for the application of the presumption described in 
Sec. 410.414(b) or Sec. 410.454(b), and
    (3) Any respirable disease when the conditions are met for the 
application of the presumption described in Sec. 410.462.
    (p) A workmen's compensation law means a law providing for payment 
of compensation to an employee (and his dependents) for injury 
(including occupational disease) or death suffered in connection with 
his employment. A payment funded wholly out of general revenues and paid 
(without regard to insurance principles) solely on account of the 
financial need of the miner and his family, shall not be considered a 
payment under a workmen's compensation law.
    (q) Masculine gender includes the feminine, and the singular 
includes the plural.
    (r) Beneficiary means a miner or a surviving widow, child, parent, 
brother, or sister, who is entitled to a benefit as defined in paragraph 
(b) of this section.

[35 FR 5623, Apr. 7, 1970, as amended at 37 FR 20635, Sept. 30, 1972]

[[Page 552]]



Sec. 410.120  Disclosure of program information.

    Disclosure of any file, record, report, or other paper, or any 
information obtained at any time by the Department of Health, Education, 
and Welfare, or any officer or employee of that Department, or any 
person, agency, or organization with whom the Administration has entered 
into an agreement to perform certain functions in the Administration of 
title IV of the Act, which in any way relates to, or is necessary to, or 
is used in, or in connection with, the administration of such title, 
shall be made in accordance with the regulations of the Department 
contained in 45 CFR part 5, except that any such file, record, report, 
or other paper or information obtained in connection with the 
administration of the old-age, survivors, disability, or health 
insurance programs pursuant to titles II and XVIII of the Social 
Security Act, shall be disclosed only in accordance with Regulation No. 
1 of the Social Security Administration, part 401 of this chapter.

[36 FR 23752, Dec. 14, 1971]



Sec. 410.130  Periods of limitation ending on nonworkdays.

    Where any provision of part B of title IV of the Act, or any 
provision of another law of the United States, relating to or changing 
the effect of part B, or any regulation of the Secretary issued under 
part B, provides for a period within which an act is required to be done 
which affects eligibility for or the amount of any benefit or payment 
under this part or is necessary to establish or protect any right under 
this part, and such period ends on a Saturday, Sunday, or Federal legal 
holiday, or on any other day all or part of which is declared to be a 
nonworkday for Federal employees by statute or Executive order, then 
such act shall be considered as done within such period if it is done on 
the first day thereafter which is not a Saturday, Sunday, or legal 
holiday, or any other day all or part of which is declared to be a 
nonworkday for Federal employees either by statute or Executive order. 
For purposes of this section, the day on which a period ends shall 
include the final day of the extended period where such extension is 
authorized by law or by the Secretary pursuant to law. Such extension of 
any period of limitation does not apply to periods during which benefits 
may be paid for months prior to the month a claim for such benefits is 
filed (see Sec. 410.226).

[37 FR 20635, Sept. 30, 1972]



Subpart B--Requirements for Entitlement; Duration of Entitlement; Filing 
                         of Claims and Evidence

    Authority:  Secs. 402, 411, 412, 413, 414, 426(a), and 508, 83 Stat. 
792; 30 U.S.C. 902, 921-924, 936(a), and 957.

    Source:  36 FR 23752, Dec. 14, 1971, unless otherwise noted.



Sec. 410.200  Types of benefits; general.

    (a) Part B of title IV of the Act provides for the payment of 
periodic benefits:
    (1) To a miner who is determined to be totally disabled due to 
pneumoconiosis; or
    (2) To the widow or child of a miner who was entitled to benefits at 
the time of his death, who is determined to have been totally disabled 
due to pneumoconiosis at the time of his death, or whose death was due 
to pneumoconiosis; or
    (3) To the child of a widow of a miner who was entitled to benefits 
at the time of her death; or
    (4) To the surviving dependent parents, or the surviving dependent 
brothers or sisters, of a miner who is determined to have been entitled 
to benefits at the time of his death, or who was totally disabled due to 
pneumoconiosis at the time of his death, or whose death was due to 
pneumoconiosis.
    (b) The following sections of this subpart set out the conditions of 
entitlement to benefits for a miner, a widow, child, parent, brother, or 
sister; describe the events which terminate or preclude entitlement to 
benefits and the procedures for filing a claim; and prescribe certain 
requirements as to evidence. Also see subpart C of this

[[Page 553]]

part for regulations relating to the relationship and dependency 
requirements applicable to claimants for benefits as a widow, child, 
parent, brother, or sister, and to beneficiaries with dependents.

[37 FR 20635, Sept. 30, 1972]



Sec. 410.201  Conditions of entitlement; miner.

    An individual is entitled to benefits if such individual:
    (a) Is a miner (see Sec. 410.110(j)); and
    (b) Is totally disabled due to pneumoconiosis (see subpart D of this 
part); and
    (c) Has filed a claim for benefits in accordance with the provisions 
of Secs. 410.220 through 410.234.

[36 FR 23752, Dec. 14, 1971, as amended at 37 FR 20635, Sept. 30, 1972]



Sec. 410.202  Duration of entitlement; miner.

    (a) An individual is entitled to benefits as a miner for each month 
beginning with the first month in which all of the conditions of 
entitlement prescribed in Sec. 410.201 are satisfied.
    (b) The last month for which such individual is entitled to such 
benefit is the month before the month:
    (1) In which the miner dies (see, however, Sec. 410.226); or
    (2) In no part of which the miner is under a disability.
    (c) A miner's entitlement to benefits under part B of title IV of 
the Act which is based on a claim which is filed (see Sec. 410.227) 
after June 30, 1973, and before January 1, 1974, shall terminate on 
December 31, 1973, unless sooner terminated under paragraph (b) of this 
section.

[36 FR 23752, Dec. 14, 1971, as amended at 37 FR 20635, Sept. 30, 1972]



Sec. 410.210  Conditions of entitlement; widow or surviving divorced wife.

    An individual is entitled to benefits if such individual:
    (a) Is the widow (see Sec. 410.320) or surviving divorced wife (see 
Sec. 410.321) of a miner (see Sec. 410.110(j));
    (b) Is not married during her initial month of entitlement (or, for 
months prior to May 1972, had not remarried since the miner's death);
    (c) Has filed a claim for benefits in accordance with the provisions 
of Secs. 410.220 through 410.234;
    (d) Was dependent on the miner at the pertinent time (see 
Sec. 410.360 or Sec. 410.361); and
    (e) The deceased miner:
    (1) Was entitled to benefits at the time of his death; or
    (2) Died before January 1, 1974, and it is determined that he was 
totally disabled due to pneumoconiosis at the time of his death, or that 
his death was due to pneumoconiosis (see subpart D of this part).

[37 FR 20636, Sept. 30, 1972, as amended at 41 FR 4899, Feb. 3, 1976]



Sec. 410.211  Duration of entitlement; widow or surviving divorced wife.

    (a) An individual is entitled to benefits as a widow, or as a 
surviving divorced wife, for each month beginning with the first month 
in which all of the conditions of entitlement prescribed in Sec. 410.210 
are satisfied. If such individual remarries, payment of benefits ends 
with the month before the month of remarriage (see paragraph (b) of this 
section). Should the remarriage subsequently end, payment of benefits 
may be resumed beginning with the month after December 1973 in which the 
remarriage ends if the Social Security Administration receives notice in 
writing within 3 months of the end of such remarriage or within 3 months 
of February 3, 1976, whichever is later. Where such notice is not 
provided within the prescribed time period, resumption of payment will 
begin with the month the individual provides such notice to the Social 
Security Administration.
    (b) The last month for which such individual is entitled to such 
benefit is the month before the month in which either of the following 
events first occurs:
    (1) The widow or surviving divorced wife dies; or
    (2) Where the individual has qualified as the widow of a miner under 
Sec. 410.320 (d), she ceases to so qualify, as provided therein.
    (c) Although payment of benefits to a widow or surviving divorced 
wife ends with the month before the month in which she marries (see 
paragraph (a) of this section), her entitlement is not

[[Page 554]]

terminated by such marriage. However, but solely for purposes of 
entitlement of a child under Sec. 410.212(b), a widow is deemed not 
entitled to benefits in months for which she is not paid benefits 
because she is married.

[41 FR 4899, Feb. 3, 1976]



Sec. 410.212  Conditions of entitlement; child.

    (a) An individual is entitled to benefits if such individual:
    (1) Is the child or stepchild (see Sec. 410.330) of (i) a deceased 
miner (see Sec. 410.110(j)) or (ii) of the widow of a miner who was 
entitled to benefits at the time of her death (see Secs. 410.210 and 
410.211);
    (2) Has filed a claim for benefits in accordance with the provisions 
of Secs. 410.220 through 410.234;
    (3) Meets the dependency requirements in Sec. 410.370;
    (4) If a child of a miner, the deceased miner:
    (i) Was entitled to benefits at the time of his death; or
    (ii) Died before January 1, 1974, and his death is determined to 
have been due to pneumoconiosis (see subpart D of this part), or
    (iii) Died before January 1, 1974, and it is determined that at the 
time of his death he was totally disabled by pneumoconiosis (see subpart 
D of this part).
    (b) A child is not entitled to benefits for any month for which a 
widow of a miner is entitled to benefits, except that (for purposes of 
entitlement of a child under this section) a widow is deemed not 
entitled to benefits in months for which she is not paid benefits 
because she is married (see Sec. 410.211). Thus, a child may be entitled 
to benefits for months wherein such benefits are not payable to the 
widow because of marriage.

[37 FR 20636, Sept. 30, 1972, as amended at 41 FR 4900, Feb. 3, 1976]



Sec. 410.213  Duration of entitlement; child.

    (a) An individual is entitled to benefits as a child for each month 
beginning with the first month in which all of the conditions of 
entitlement prescribed in Sec. 410.212 are satisfied.
    (b) The last month for which such individual is entitled to or may 
be paid such benefit is the month before the month in which any one of 
the following events first occurs:
    (1) The child dies;
    (2) The child marries;
    (3) The child attains age 18 and,
    (i) Is not under a disability at that time, and
    (ii) Is not a student (as defined in Sec. 410.370) during any part 
of the month in which he attains age 18;
    (4) If the child's entitlement is based on his status as a student, 
the earlier of:
    (i) The first month during no part of which he is a student, or
    (ii) The month in which he attains age 23 and is not under a 
disability at that time (but see Sec. 410.370(c)(4) for an exception);
    (5) If the child's entitlement is based on disability, the first 
month in no part of which such individual is under a disability;
    (6) A widow's benefit payment, which was ended because of marriage, 
is resumed following termination of such marriage. (See 
Sec. 410.211(a)). (In the month before the month in which a widow 
marries, payment of benefits to her ends and non-payment of such 
benefits continues for the duration of the marriage. Thereafter, if her 
remarriage ends, subject to the provisions of Sec. 410.211 her benefit 
payments may be resumed. Should such widow again remarry or die, payment 
of benefits to such child, if he is otherwise entitled, will be resumed 
effective with the month of such remarriage or death. In such event no 
action by or on behalf of such child is required for resumption of 
payment.)
    (c) A child whose entitlement to benefits terminated with the month 
before the month in which he attained age 18, or later, may thereafter 
(provided he is not married) again become entitled to such benefits upon 
filing application for such reentitlement, beginning with the first 
month in which he files such application in or after such termination 
and in which he is a student and has not attained the age of 23.

[37 FR 20636, Sept. 30, 1972, as amended at 41 FR 4900, Feb. 3, 1976]

[[Page 555]]



Sec. 410.214  Conditions of entitlement; parent, brother, or sister.

    An individual is entitled to benefits if:
    (a) Such individual:
    (1) Is the parent, brother, or sister (see Sec. 410.340) of a 
deceased miner (see Sec. 410.110(j));
    (2) Has filed a claim for benefits in accordance with the provisions 
of Secs. 410.220 through 410.234;
    (3) Was dependent on the miner at the pertinent time (see 
Sec. 410.380); and
    (4) Files proof of support before June 1, 1974, or within 2 years 
after the miner's death, whichever is later, or it is shown to the 
satisfaction of the Administration that there is good cause for failure 
to file such proof within such period (see Sec. 410.216).
    (b) In the case of a brother, he also:
    (1) Is under 18 years of age; or
    (2) Is 18 years of age or older and is under a disability as defined 
in section 223(d) of the Social Security Act, 42 U.S.C. 423(d) (see 
subpart P of part 404 of this chapter), which began:
    (i) Before he attained age 22, however, no entitlement to brother's 
benefits may be established for any month before January 1973, based on 
a disability which began after attainment of age 18; or
    (ii) In the case of a student, before he ceased to be a student (see 
Sec. 410.370(c)); or
    (3) Is a student (see Sec. 410.370(c)); or
    (4) Is under a disability as defined in section 223(d) of the Social 
Security Act, 42 U.S.C. 423(d) (see subpart P of part 404 of this 
chapter), at the time of the miner's death.
    (c) In addition to the requirements set forth in paragraphs (a) and 
(b) of this section, the deceased miner:
    (1) Was entitled to benefits at the time of his death; or
    (2) Died before January 1, 1974, and his death is determined to have 
been due to pneumoconiosis (see subpart D of this part); or
    (3) Died before January 1, 1974, and it is determined that at the 
time of his death he was totally disabled by pneumoconiosis (see subpart 
D of this part).
    (d) Notwithstanding the provisions of paragraphs (a), (b), and (c) 
of this section:
    (1) A parent is not entitled to benefits if the deceased miner was 
survived by a widow or child at the time of his death, and
    (2) A brother or sister is not entitled to benefits if the deceased 
miner was survived by a widow, child, or parent at the time of his 
death.

[37 FR 20636, Sept. 30, 1972, as amended at 41 FR 7091, Feb. 17, 1976]



Sec. 410.215  Duration of entitlement; parent, brother, or sister.

    (a) A parent, brother, or sister is entitled to benefits beginning 
with the month all the conditions of entitlement described in 
Sec. 410.214 are met.
    (b) The last month for which such parent is entitled to benefits is 
the month before the month in which the parent dies.
    (c) The last month for which such sister is entitled to benefits is 
the month before the month in which any of the following events occurs:
    (1) She dies;
    (2)(i) She marries or remarries; or
    (ii) If already married, she receives support in any amount from her 
spouse.
    (d) The last month for which such brother is entitled to benefits is 
the month before the month in which any of the following events first 
occurs:
    (1) He dies;
    (2)(i) He marries or remarries; or
    (ii) If already married, he receives support in any amount from his 
spouse;
    (3) He attains age 18 and,
    (i) Is not under a disability at that time, and
    (ii) Is not a student (see Sec. 410.370(c)) during any part of the 
month in which he attains age 18;
    (4) If his entitlement is based on his status as a student, the 
earlier of:
    (i) The first month during no part of which he is a student; or
    (ii) The month in which he attains age 23 and is not under a 
disability at that time;
    (5) If his entitlement is based on disability, the first month in no 
part of which such individual is under a disability.

[37 FR 20636, Sept. 30, 1972]

[[Page 556]]



Sec. 410.216  ``Good cause'' for delayed filing of proof of support.

    (a) What constitutes ``good cause.'' Good cause may be found for 
failure to file proof of support within the 2-year period where the 
parent, brother, or sister establishes to the satisfaction of the 
Administration that such failure to file was due to:
    (1) Circumstances beyond the individual's control, such as extended 
illness, mental or physical incapacity, or communication difficulties; 
or
    (2) Incorrect or incomplete information furnished the individual by 
the Administration; or
    (3) Efforts by the individual to secure supporting evidence without 
a realization that such evidence could be submitted after filing proof 
of support; or
    (4) Unusual or unavoidable circumstances, the nature of which 
demonstrate that the individual could not reasonably be expected to have 
been aware of the need to file timely the proof of support.
    (b) What does not constitute ``good cause.'' Good cause for failure 
to file timely such proof of support does not exist when there is 
evidence of record in the Administration that the individual was 
informed that he should file within the initial 2-year period and he 
failed to do so through negligence or intent not to file.

[37 FR 20637, Sept. 30, 1972]



Sec. 410.219  Filing a claim under State workmen's compensation law; when filing such claim shall be considered futile.

    (a) A claimant for benefits under this part must file a claim under 
the applicable State workmen's compensation law prior to a final 
decision on his claim for benefits under this part (see Sec. 410.227(c)) 
except where the filing of a claim under such applicable State workmen's 
compensation law would clearly be futile.
    (b) The Administration shall determine that the filing of such a 
claim would clearly be futile when:
    (1) The period within which such a claim may be filed under such law 
has expired; or
    (2) Pneumoconiosis as defined in Sec. 410.110(o) is not compensable 
under such law; or
    (3) The maximum amount of compensation or the maximum number of 
compensation payments allowable under such law has already been paid; or
    (4) The claimant does not meet one or more conditions of eligibility 
for workmen's compensation payments under applicable State law; or
    (5) In any other situation the claimant establishes to the 
satisfaction of the Administration that the filing of a claim on account 
of pneumoconiosis would result as a matter of law in a denial of his 
claim for compensation under such law.
    (c) To be considered to have complied with the statutory requirement 
for filing a claim under the applicable State workmen's compensation 
law, a claimant for benefits under this part must diligently prosecute 
such State claim.
    (d) Where, but for the failure to file a claim under the applicable 
State workmen's compensation law, an individual's claim for benefits 
under this part would be allowed, the Administration shall notify the 
individual in writing of the need to file such State claim as a 
prerequisite to such allowance. Such claim, when filed within 30 days of 
the date such notice is mailed to the individual, will be considered to 
have been filed timely.
    (e) Where, on the other hand, a claim has not been filed under the 
applicable State workmen's compensation law, and the Administration 
determines that a claim for benefits under this part would be disallowed 
even if such a State claim were filed, the Administration shall make 
such determination as may be necessary for the adjudication of the 
individual's claim for benefits under this part pursuant to 
Sec. 410.610.

[36 FR 23752, Dec. 14, 1971; 36 FR 24214, Dec. 22, 1971. Redesignated at 
37 FR 20636, Sept. 30, 1972]



Sec. 410.220  Claim for benefits; definitions.

    For purposes of this part:
    (a) Claim defined. The term claim means a writing asserting a right 
to benefits by an individual, or by a proper party on his behalf as 
defined in Sec. 410.222, which writing is filed with the Administration 
in accordance with the regulations in this subpart.

[[Page 557]]

    (b) Application defined. The term application refers only to a 
writing on a form prescribed in Sec. 410.221.
    (c) Claimant defined. The term claimant refers to the individual who 
has filed a claim for benefits on his own behalf, or on whose behalf a 
proper party as defined in Sec. 410.222 has filed a claim.
    (d) Applicant defined. The term applicant refers to the individual 
who has filed an application on his own behalf, or on behalf of another, 
for benefits.
    (e) Execution of claim defined. The term to execute a claim means to 
complete and sign an application (but, for an exception, see 
Sec. 410.234). Irrespective of who may have prepared or completed the 
application, it is considered to have been executed by or on behalf of 
the claimant when it is signed by him or by an individual authorized to 
do so on his behalf (see Sec. 410.222).
    (f) Provisions with respect to claims applicable with respect to 
requests. The provisions of Secs. 410.222 through 410.234 (relating to 
the preparation, execution, or filing of a claim for benefits) are 
applicable to the preparation, execution, and filing of a written 
request required under this part, e.g., a request to be selected as 
representative payee (see Sec. 410.581 et seq.), a request for separate 
payment of an augmentation (see Sec. 410.511), a request for 
reconsideration (see Sec. 410.622), etc. In such cases, the term 
claimant as used therein refers to the individual filing the request on 
his own behalf or the individual on whose behalf such request is filed.

[36 FR 23752, Dec. 14, 1971, as amended at 37 FR 20637, Sept. 30, 1972]



Sec. 410.221  Prescribed application and request forms.

    (a) Claims shall be made as provided in this subpart on such 
application forms and in accordance with such instructions (provided 
thereon or attached thereto) as are prescribed by the Administration.
    (b) The application forms used by the public to file claims for 
benefits under part B of title IV of the Act are SSA-46 (application for 
benefits under the Federal Coal Mine Health and Safety Act of 1969 (coal 
miner's claim of total disability)), SSA-47 (application for benefits 
under the Federal Coal Mine Health and Safety Act of 1969 (widow's 
claim)), SSA-48 (application for benefits under the Black Lung Benefits 
Act of 1972 (child's claim)), and SSA-49 (application for benefits under 
the Black Lung Act of 1972 (parent's, brother's, or sister's claim)).
    (c) The form used by an individual to request that such individual 
be selected as a representative payee or by a dependent to request that 
payment be certified to him separately is SSA-50 (Request to be Selected 
as Payee).
    (d) For further information about some of the forms used in the 
administration of part B of title IV of the Act, see Secs. 422.505(b), 
422.515, 422.525, and 422.527 of this chapter.

[37 FR 20637, Sept. 30, 1972]



Sec. 410.222  Execution of a claim.

    The Administration determines who is the proper party to execute a 
claim in accordance with the following rules:
    (a) If the claimant has attained the age of 18, is mentally 
competent, and is physically able to execute the claim, the claim shall 
be executed by him. Where, however, paragraph (d) of this section 
applies, the claim may also be executed by the claimant's legal 
guardian, committee, or other representative.
    (b) If the claimant is between the ages of 16 and 18, is mentally 
competent, has no legally appointed guardian, committee, or other 
representative, and is not in the care of any person, such claimant may 
execute the claim upon filing a statement on the prescribed form 
indicating capacity to act on his own behalf.
    (c) If the claimant is mentally competent but has not attained age 
18 and is in the care of a person, the claim may be executed by such 
person.
    (d) If the claimant (regardless of his age) has a legally appointed 
guardian, committee, or other representative, the claim may be executed 
by such guardian committee, or representative.
    (e) If the claimant (regardless of his age) is mentally incompetent 
or is physically unable to execute the claim, it may be executed by the 
person who has the claimant in his care or by a legally appointed 
guardian, committee, or other representative.
    (f) Where the claimant is in the care of an institution and is not 
mentally

[[Page 558]]

competent or physically able to execute a claim, the manager or 
principal officer of such institution may execute the claim.
    (g) For good cause shown, the Administration may accept a claim 
executed by a person other than one described in paragraph (a), (b), 
(c), (d), (e), or (f) of this section.

[37 FR 20637, Sept. 30, 1972]



Sec. 410.223  Evidence of authority to execute a claim on behalf of another.

    Where the claim is executed by a person other than the claimant, 
such person shall, at the time of filing the claim or within a 
reasonable time thereafter, file evidence of his authority to execute 
the claim on behalf of such claimant in accordance with the following 
rules:
    (a) If the person executing the claim is the legally appointed 
guardian, committee, or other legal representative of such claimant, the 
evidence shall be a certificate executed by the proper official of the 
court of appointment.
    (b) If the person executing the claim is not such a legal 
representative, the evidence shall be a statement describing his 
relationship to the claimant, the extent to which he has the care of 
such claimant, or his position as an officer of the institution of which 
the claimant is an inmate. The Administration may, at any time, require 
additional evidence to establish the authority of any such person.



Sec. 410.224  Claimant must be alive when claim is filed.

    For a claim to be effective, the claimant must be alive at the time 
a properly executed claim (see Sec. 410.222) is filed with the 
Administration (see Sec. 410.227). (See Secs. 410.229 and 410.230 
concerning the filing of a prescribed application form after submittal 
of a written statement.)



Sec. 410.226  Periods for which claims are effective.

    (a) Application effective for entire month of filing. Benefits are 
payable for full calendar months. If the claimant meets all the 
requirements for entitlement to benefits in the same calendar month in 
which his application is filed, the application will be effective for 
the whole month. If a miner dies in the first month for which he meets 
all the requirements for entitlement to benefits, he will, 
notwithstanding the provisions of Sec. 410.202(b), be considered to be 
entitled to benefits for that month.
    (b) Prospective life of claims. A claim which is filed before the 
claimant meets all the requirements for entitlement to such benefits 
will be deemed a valid claim if the claimant meets such requirements of 
entitlement (1) before the Administration makes a final decision on such 
claim or (2) if the claimant has timely requested judicial review of 
such final decision before such review is completed. If the claimant 
first meets the requirements for entitlement to benefits in a month 
after the month of actual filing but before a final administrative or 
judicial decision is rendered on his claim, his claim will be deemed to 
have been effectively filed in such first month of entitlement.
    (c) Retroactive life of claims. Except in the case of a claim for 
benefits as a surviving child (see Sec. 410.212) a claim for benefits 
has no retroactive effect. (See, however, Sec. 410.230.) Generally, a 
claim for benefits for a surviving child is effective (depending on the 
first month of eligibility) for up to 12 months preceding the month in 
which such claim is filed. However, if such claim is filed before 
December 1972, such claim may be effective retroactively (depending on 
the first month of eligibility) to December 1969.

[37 FR 20637, Sept. 30, 1972]



Sec. 410.227  When a claim is considered to have been filed; time and place of filing.

    (a) Date of receipt. Except as otherwise provided in this part, a 
claim is considered to have been filed only as of the date it is 
received at an office of the Administration or by an employee of the 
Administration who is authorized to receive such claims.
    (b) Date of mailing. If the claim is deposited in and transmitted by 
the U.S. mail and the fixing of the date of delivery as the date of 
filing would result in a loss or impairment of benefit rights, it will 
be considered to have been filed

[[Page 559]]

as of the date of mailing. The date appearing on the postmark (when 
available and legible) shall be prima facie evidence of the date of 
mailing. If there is no postmark or it is not legible, other evidence 
may be used to establish the mailing date.

[36 FR 23752, Dec. 14, 1971, as amended at 37 FR 20637, Sept. 30, 1972]



Sec. 410.228  Requests and notices to be in writing.

    Except as otherwise provided in this part, any request to the 
Administration for a determination or a decision relating to a person's 
right to benefits, the withdrawal of a claim, the cancellation of a 
request for such withdrawal, or any notice provided for pursuant to the 
regulations in this part 410, shall be in writing and shall be signed by 
the person authorized to execute a claim under Sec. 410.222.



Sec. 410.229  When written statement is considered a claim; general.

    (a) Written statement filed by claimant on his own behalf. Where an 
individual files a written statement with the Administration (see 
Sec. 410.227) which indicates an intention to claim benefits, and such 
statement bears his signature or his mark properly witnessed, the filing 
of such written statement, unless otherwise indicated by the regulations 
in this part, shall be considered to be the filing of a claim for 
benefits: Provided, That:
    (1) The claimant or a proper party on his behalf (see Sec. 410.222) 
executes a prescribed application form (see Sec. 410.221) that is filed 
with the Administration during the claimant's lifetime and within the 
period prescribed in paragraph (c)(1) of this section; or
    (2) In the case of a claimant who dies prior to the filing of such 
prescribed application form within the period prescribed in paragraph 
(c)(1) of this section, a prescribed application form is filed with the 
Administration within the period prescribed in paragraph (c)(2) of this 
section by a party acting on behalf of the deceased claimant's estate.
    (b) Written statement filed by individual on behalf of another. A 
written statement filed by an individual which indicates an intention to 
claim benefits on behalf of another person shall, unless otherwise 
indicated thereon, be considered to be the filing of a claim for such 
purposes: Provided, That:
    (1) The written statement bears the signature (or mark properly 
witnessed) of the individual filing the statement; and
    (2) The individual filing the statement is the spouse of the 
claimant on whose behalf the statement is being filed, or a proper party 
to execute a claim on behalf of a claimant as determined by 
Sec. 410.222; and
    (3) Except as specified in Sec. 410.230, a prescribed application 
form (see Sec. 410.221) is executed and filed in accordance with the 
provisions of paragraph (a) (1) or (2) of this section.
    (c) Period within which prescribed application form must be filed. 
After the Administration has received from an individual a written 
statement as described in paragraph (a) or (b) of this section:
    (1) Notice in writing shall be sent to the claimant or to the 
individual who submitted the written statement on his behalf, stating 
that an initial determination will be made with respect to such written 
statement if a prescribed application form executed by the claimant or 
by a proper party on his behalf (see Sec. 410.222), is filed with the 
Administration within 6 months from the date of such notice; or
    (2) If the Administration is notified that the death of such 
claimant occurred before the mailing of the notice described in 
paragraph (c)(1) of this section, or within the 6-month period following 
the mailing of such notice but before the filing of a prescribed 
application form by or on behalf of such individual, notification in 
writing shall be sent to a person acting on behalf of his estate, or to 
the deceased's last known address. Such notification will include 
information that an initial determination with respect to such written 
statement will be made only if a prescribed application form is filed 
within 6 months from the date of such notification.
    (3) If, after the notice as described in this paragraph (c) has been 
sent, a prescribed application form is not filed (in accordance with the 
provisions of paragraph (a) or (b) of this section) within

[[Page 560]]

the applicable period prescribed in paragraph (c)(1) or (c)(2) of this 
section, it will be deemed that the filing of the written statement to 
which such notice refers is not to be considered the filing of a claim 
for the purposes set forth in paragraphs (a) and (b) of this section.

[36 FR 23752, Dec. 14, 1971, as amended at 39 FR 41525, Nov. 29, 1974]



Sec. 410.230  Written statement filed by or for a miner on behalf of a member of his family.

    Notwithstanding the provisions of Sec. 410.229, the Social Security 
Administration will take no action with respect to a written statement 
filed by or for a miner on behalf of a member of his family until such 
miner's death. At such time, the provisions of Sec. 410.229 shall apply 
as if such miner's claim on behalf of a member of his family had been 
filed on the day of the miner's death. However, for purposes of paying 
benefits to an otherwise entitled survivor of a miner, such written 
statement will be considered to be a valid claim for benefits (see 
Secs. 410.210(c) and 410.212(a)(2)) where such member of his family 
qualified as a dependent for purposes of augmentation of the miner's 
benefits prior to his death. In such case the member of his family is 
not required to file a prescribed application form (see Sec. 410.221) 
with the Social Security Administration (see Sec. 410.229(b)). 
Nevertheless, the survivor beneficiary may be required to furnish 
supplemental information within 6 months of notification to do so. If 
such beneficiary fails to furnish the information requested within 6 
months of notice to do so, benefits may be suspended, after notice of 
such proposed action and opportunity to be heard is provided the 
beneficiary. A subsequent determination to suspend benefits shall be an 
initial determination (see Sec. 410.610).

[39 FR 41525, Nov. 29, 1974]



Sec. 410.231  Time limits for filing claims.

    (a) A claim by or on behalf of a miner must be filed on or before 
December 31, 1973, and when so filed, is a claim for benefits under part 
B of title IV of the Act. (See Sec. 410.227 for when a claim is 
considered to have been filed. See also Sec. 410.202(c) for the duration 
of entitlement to benefits of a miner based on a claim for such benefits 
which is filed after June 30, 1973, and before January 1, 1974.)
    (b) In the case of a miner who was entitled to benefits for the 
month before the month of his death, or died in the first month for 
which he met all the requirements for entitlement (see Sec. 410.226), a 
claim for benefits by or on behalf of the widow, child, parent, brother, 
or sister of a miner must be filed by December 31, 1973, or within 6 
months after the miner's death, whichever is later. When so filed, it 
constitutes a claim for benefits under part B of title IV of the Act.
    (c) In the case of a miner who was not entitled to benefits for the 
month before the month of his death, and whose death occurred prior to 
January 1, 1974, a claim for benefits by or on behalf of the widow, 
child, parent, brother, or sister of a miner must be filed by December 
31, 1973, or, in the case of the death of a miner occurring after June 
30, 1973, and before January 1, 1974, within 6 months of such miner's 
death. When so filed, it constitutes a claim for benefits under part B 
of title IV of the Act.
    (d) Notwithstanding the provisions of paragraphs (b) and (c) of this 
section, if a widow established entitlement to benefits under this part 
(see Sec. 410.210), a claim by or on behalf of a surviving child of a 
miner or of such widow, must be filed within 6 months after the death of 
such miner or of such widow, or by December 31, 1973, whichever is the 
later.

[37 FR 20637, Sept. 30, 1972]



Sec. 410.232  Withdrawal of a claim.

    (a) Before adjudication of claim. A claimant (or an individual who 
is authorized to execute a claim on his behalf under Sec. 410.222), may 
withdraw his previously filed claim provided that:
    (1) He files a written request for withdrawal.
    (2) The claimant is alive at the time the request for withdrawal is 
filed,
    (3) The Administration approves the request for withdrawal, and
    (4) The request for withdrawal is filed on or before the date the 
Administration makes a determination on the claim.

[[Page 561]]

    (b) After adjudication of claim. A claim for benefits may be 
withdrawn by a written request filed after the date the Administration 
makes a determination on the claim provided that:
    (1) The conditions enumerated in paragraphs (a) (1) through (3) of 
this section are met; and
    (2) There is repayment of the amount of benefits previously paid 
because of the claim that is being withdrawn or it can be established to 
the satisfaction of the Administration that repayment of any such amount 
is assured.
    (c) Effect of withdrawal of claim. Where a request for withdrawal of 
a claim is filed and such request for withdrawal is approved by the 
Administration, such claim will be deemed not to have been filed. After 
the withdrawal (whether made before or after the date the Administration 
makes a determination) further action will be taken by the 
Administration only upon the filing of a new claim, except as provided 
in Sec. 410.233.



Sec. 410.233  Cancellation of a request for withdrawal.

    Before or after a written request for withdrawal has been approved 
by the Administration, the claimant (or a person who is authorized under 
Sec. 410.222 to execute a claim on his behalf) may request that the 
``request for withdrawal'' be canceled and that the withdrawn claim be 
reinstated. Such request for cancellation must be in writing and must be 
filed, in a case where the requested withdrawal was approved by the 
Administration, no later than 60 days after such approval. The claimant 
must be alive at the time the request for cancellation of the ``request 
for withdrawal'' is filed with the Administration.



Sec. 410.234  Interim provisions.

    (a) Notwithstanding any other provision of this subpart, a written 
request for benefits which is filed before January 31, 1972, and which 
meets the requirements of this subpart except for the filing of a 
prescribed application form, shall be considered a claim for benefits. 
Nevertheless, where a prescribed application form has not been filed, 
the Administration may require that such a form be completed and filed 
before adjudicating the claim. (See Sec. 410.240(a).)
    (b) Notwithstanding any other provision of this part, where (1) a 
request has been made before the effective date of this regulation that 
a claim for benefits be withdrawn and (2) such request has been approved 
(see Sec. 410.232), such claim may nevertheless be reinstated and 
adjudicated under the provisions of the Black Lung Benefits Act of 1972 
(Pub. L. 92-303).

[37 FR 20638, Sept. 30, 1972]



Sec. 410.240  Evidence.

    (a) Evidence of eligibility. A claimant for benefits shall submit 
such evidence of eligibility as is specified in this section. The 
Administration may at any time require additional evidence to be 
submitted with regard to entitlement or the right to receive payment.
    (b) Insufficient evidence of eligibility. Whenever a claimant for 
benefits has submitted no evidence or insufficient evidence of 
eligibility, the Administration will inform the claimant what evidence 
is necessary for a determination of eligibility and will request him to 
submit such evidence within a specified reasonable time which may be 
extended for a further reasonable time upon the claimant's request.
    (c) Reports by beneficiary; evidence of nonoccurrence of 
termination, suspension, or reduction event. Any individual entitled to 
a benefit who is aware of any circumstance which, under the provisions 
of this part could affect his entitlement to benefits, his eligibility 
for payment, or the amount of his benefit, or result in the termination, 
suspension, or reduction of his benefit, shall promptly report such 
circumstance to the Administration. The Administration may at any time 
require an individual receiving, or claiming that he is entitled to 
receive, a benefit, either on behalf of himself or on behalf of another, 
to submit a written statement giving pertinent information bearing upon 
the issue of whether or not an event has occurred which would cause such 
benefit to be terminated, or which would subject such benefit to 
reductions or suspension under the provisions of the Act. The failure on 
the part of such individual to submit any

[[Page 562]]

such report or statement, properly executed, to the Administration, 
shall subject such benefit to reductions, suspension, or termination, as 
the case may be.
    (d) Place and manner of submitting evidence. Evidence in support of 
a claim shall be filed at an office of the Administration or with an 
employee of the Administration authorized to receive such evidence at a 
place other than such office. Such evidence may be submitted as part of 
a prescribed application form if the form provides for its inclusion, or 
it may be submitted in addition to such prescribed form and in the 
manner indicated in this section.
    (e) Certification of evidence by authorized individual. In cases 
where a copy of a record, document, or other evidence, or an excerpt of 
information therefrom, is acceptable as evidence in lieu of the 
original, such copy or excerpt shall, except as may otherwise clearly be 
indicated thereon, be certified as a true and exact copy or excerpt by 
the official custodian of any such record or by an employee of the 
Administration authorized to make certifications of any such evidence.
    (f) Evidence of total disability or death due to pneumoconiosis. For 
evidence requirements to support allegations of total disability or 
death due to pneumoconiosis; for the effect of the failure or refusal of 
an individual to present himself for an examination or test in 
connection with the alleged disability, or to submit evidence of 
disability; and for evidence as to the cessation of disability, see 
subpart D of this part 410.
    (g) Evidence of matters other than total disability or death due to 
pneumoconiosis. With respect to the following matters, evidence shall be 
submitted in accordance with the provisions of Regulations No. 4 (part 
404 of this chapter) cited hereinafter, as if the claim for benefits 
under the Act were an application for benefits under section 202 of the 
Social Security Act. Evidence as to:
    (1) Age: Section 404.703 of this chapter;
    (2) Death: Sections 404.704, 404.705 of this chapter;
    (3) Marriage and termination of marriage: Sections 404.706 through 
404.709 of this chapter;
    (4) Relationship of parent and child: Sections 404.711 through 
404.715 of this chapter;
    (5) Domicile: Section 404.716 of this chapter;
    (6) ``Living with'' or ``member of the same household'': Section 
404.716a of this chapter.
    (h) Reimbursement for reasonable expenses in obtaining medical 
evidence. Claimants for benefits under this part shall be reimbursed 
promptly for reasonable medical expenses incurred by them for services 
from medical sources of their choice, in establishing their claims, 
including the reasonable and necessary cost of travel incident thereto. 
A medical expense generally is not ``reasonable'' when the medical 
evidence for which the expense was incurred is of no value in the 
adjudication of a claim. Medical evidence will then be considered to be 
of ``no value'' when, for instance, it is wholly duplicative or when it 
is wholly extraneous to the medical issue of whether the claimant is 
disabled or died due to pneumoconiosis. In order to minimize 
inconvenience and possible expense to the claimant, he should not 
generally incur any medical expense for which he intends to claim 
reimbursement without first contacting the district office to determine 
what types of evidence not already available to the Administration may 
be useful in adjudicating his claim, what types of medical evidence may 
be reimbursable, and what would constitute a ``reasonable medical 
expense'' in a given case. However, a claimant's failure to contact the 
Administration before the expense is incurred will not preclude the 
Administration from later approving reimbursal for any reasonable 
medical expense. Where a reasonable expense for medical evidence is 
ascertained, the Administration may authorize direct payment to the 
provider of such evidence.

[36 FR 23752, Dec. 14, 1971, as amended at 37 FR 20638, Sept. 30, 1972]

[[Page 563]]



Sec. 410.250  Effect of conviction of felonious and intentional homicide on entitlement to benefits.

    An individual who has been finally convicted by a court of competent 
jurisdiction of the felonious and intentional homicide of a miner or of 
a widow shall not be entitled to receive any benefits payable because of 
the death of such miner or widow, and such felon shall be considered 
nonexistent in determining the entitlement to benefits of other 
individuals with respect to such miner or widow.

[37 FR 20638, Sept. 30, 1972]



                 Subpart C--Relationship and Dependency

    Authority:  Secs. 402, 412(a), 426(a), and 508, 83 Stat. 792; 30 
U.S.C. 902, 922(a), 936, and 957.



Sec. 410.300  Relationship and dependency; general.

    (a) In order to establish entitlement to benefits, a widow, child, 
parent, brother, or sister must meet relationship and dependency 
requirements with respect to the miner or widow, as applicable, 
prescribed by or pursuant to the Act.
    (b) In order for an entitled miner or widow to qualify for augmented 
benefits because of one or more dependents (see Sec. 410.510(c)), such 
dependents must meet relationship and dependency requirements with 
respect to such beneficiary prescribed by or pursuant to the Act.
    (c) References in Secs. 410.310(c), 410.320(c), 410.330(d), and 
410.340, to the ``same right to share in the intestate personal 
property'' of a deceased miner (or widow), refer to the right of an 
individual to share in such distribution in his own right and not by 
right of representation.

[37 FR 20638, Sept. 30, 1972]



Sec. 410.310  Determination of relationship; wife.

    An individual will be considered to be the wife of a miner if:
    (a) The courts of the State in which such miner is domiciled (see 
Sec. 410.392) would find that such individual and the miner were validly 
married; or
    (b) The courts of the State in which such miner is domiciled (see 
Sec. 410.392) would find, under the law they would apply in determining 
the devolution of the miner's intestate personal property, that the 
individual is the miner's wife; or
    (c) Under State law, such individual has the same right she would 
have if she were the wife to share in the miner's intestate personal 
property; or
    (d)(1) Such individual went through a marriage ceremony with the 
miner resulting in a purported marriage between them and which, but for 
a legal impediment (see Sec. 410.391), would have been a valid marriage. 
However, such purported marriage shall not be considered a valid 
marriage if such individual entered into the purported marriage with 
knowledge that it was not a valid marriage, or if such individual and 
the miner were not living in the same household (see Sec. 410.393) in 
the month in which there is filed a request that the miner's benefits be 
augmented because such individual qualifies as his wife (see 
Sec. 410.510(c)). The provisions of this paragraph shall not apply, 
however, if the miner's benefits are or have been augmented under 
Sec. 410.510(c) because another person qualifies or has qualified as his 
wife and such other person is, or is considered to be, the wife of such 
miner under paragraph (a), (b), or (c) of this section at the time such 
request is filed.
    (2) The qualification for augmentation purposes of an individual who 
would not be considered to be the wife of such miner but for this 
paragraph (d), shall end with the month before the month in which (i) 
the Administration determines that the benefits of the miner should be 
augmented on account of another person, if such other person is (or is 
considered to be) the wife of such miner under paragraph (a), (b), or 
(c) of this section, or (ii) if the individual who previously qualified 
as a wife for purposes of Sec. 410.510(c), entered into a marriage valid 
without regard to this paragraph, with a person other than such miner.

[36 FR 23756, Dec. 14, 1971, as amended at 37 FR 20638, Sept. 30, 1972]

[[Page 564]]



Sec. 410.311  Determination of relationship; divorced wife.

    An individual will be considered to be the divorced wife of a miner 
if her marriage to such miner has been terminated by a final divorce on 
or after the 20th anniversary of the marriage: Provided, That if she was 
married to and divorced from him more than once, she was married to him 
in each calendar year of the period beginning 20 years immediately 
before the date on which any divorce became final and ending with the 
year in which that divorce became final.

[37 FR 20638, Sept. 30, 1972]



Sec. 410.320  Determination of relationship; widow.

    An individual will be considered to be the widow of a miner if:
    (a) The courts of the State in which such miner was domiciled (see 
Sec. 410.392) at the time of his death would find that the individual 
and the miner were validly married; or
    (b) The courts of the State in which such miner was domiciled (see 
Sec. 410.392) at the time of his death would find, under the law they 
would apply in determining the devolution of the miner's intestate 
personal property, that the individual was the miner's widow; or
    (c) Under State law, such individual has the same right she would 
have as if she were the miner's widow to share in the miner's intestate 
personal property; or
    (d) Such individual went through a marriage ceremony with the miner 
resulting in a purported marriage between them and which, but for a 
legal impediment (see Sec. 410.391) would have been a valid marriage. 
However, such purported marriage shall not be considered a valid 
marriage if such individual entered into the purported marriage with 
knowledge that it was not a valid marriage, or if such individual and 
the miner were not living in the same household (see Sec. 410.393) at 
the time of the miner's death. The provisions of this paragraph shall 
not apply if another person is or has been entitled to benefits as the 
widow of the miner and such other person is, or is considered to be, the 
widow of such miner under paragraph (a), (b), or (c) of this section at 
the time such individual files her claim for benefits.

[36 FR 23756, Dec. 14, 1971, as amended at 37 FR 20638, Sept. 30, 1972]



Sec. 410.321  Determination of relationship; surviving divorced wife.

    An individual will be considered to be the surviving divorced wife 
of a deceased miner if her marriage to such miner had been terminated by 
a final divorce on or after the 20th anniversary of the marriage: 
Provided, That, if she was married to and divorced from him more than 
once, she was married to him in each calendar year of the period 
beginning 20 years immediately before the date on which any divorce 
became final and ending with the year in which that divorce became 
final.

[37 FR 20639, Sept. 30, 1972]



Sec. 410.330  Determination of relationship; child.

    As used in this section, the term beneficiary means only a widow 
entitled to benefits at the time of her death (see Sec. 410.211), or a 
miner, except where there is a specific reference to the ``father'' 
only, in which case it means only a miner. An individual will be 
considered to be the child of a beneficiary if:
    (a) The courts of the State in which such beneficiary is domiciled 
(see Sec. 410.392) would find, under the law they would apply in 
determining the devolution of the beneficiary's intestate personal 
property, that the individual is the beneficiary's child; or
    (b) Such individual is the legally adopted child of such 
beneficiary; or
    (c) Such individual is the stepchild of such beneficiary by reason 
of a valid marriage of his parent or adopting parent to such 
beneficiary; or
    (d) Such individual does not bear the relationship of child to such 
beneficiary under paragraph (a), (b), or (c) of this section, but would, 
under State law, have the same right as a child to share in the 
beneficiary's intestate personal property; or
    (e) Such individual is the natural son or daughter of a beneficiary 
but does not bear the relationship of child to such beneficiary under 
paragraph (a), (b), or (c) of this section, and is not

[[Page 565]]

considered to be the child of the beneficiary under paragraph (d) of 
this section, such individual shall nevertheless be considered to be the 
child of such beneficiary if the beneficiary and the mother or the 
father, as the case may be, of such individual went through a marriage 
ceremony resulting in a purported marriage between them which, but for a 
legal impediment (see Sec. 410.391), would have been a valid marriage.
    (f) Such individual is the natural son or daughter of a beneficiary 
but does not have the relationship of child to such beneficiary under 
paragraph (a), (b), or (c) of this section, and is not considered to be 
the child of the beneficiary under paragraph (d) or (e) of this section, 
such individual shall nevertheless be considered to be the child of such 
beneficiary if:
    (1) Such beneficiary, prior to his entitlement to benefits, has 
acknowledged in writing that the individual is his son or daughter, or 
has been decreed by a court to be the father of the individual, or he 
has been ordered by a court to contribute to the support of the 
individual (see Sec. 410.395(c)) because the individual is his son or 
daughter; or
    (2) Such beneficiary is shown by satisfactory evidence to be the 
father of the individual and was living with or contributing to the 
support of the individual at the time such beneficiary became entitled 
to benefits.
    (g) Such individual is the natural son or daughter of a beneficiary 
but does not have the relationship of child to such beneficiary under 
paragraph (a), (b), or (c) of this section, and is not considered to be 
the child of the beneficiary under paragraph (d) or (e) of this section, 
such individual shall nevertheless be considered to be the child of such 
beneficiary for months no earlier than June 1974, if:
    (1) Such beneficiary has acknowledged in writing that the individual 
is his son or daughter, or has been decreed by a court to be the father 
of the individual, or he has been ordered by a court to contribute to 
the support of the individual (see Sec. 410.395(c)) because the 
individual is his son or daughter; and in the case of a deceased 
individual such acknowledgement, court decree, or court order was made 
before the death of such beneficiary; or
    (2) Such beneficiary is shown by satisfactory evidence to be the 
father of the individual and was living with or contributing to the 
support of the individual at the time such request for benefits is made.

[36 FR 23756, Dec. 14, 1971, as amended at 37 FR 20639, Sept. 30, 1972; 
41 FR 33550, Aug. 10, 1976]



Sec. 410.340  Determination of relationship; parent, brother, or sister.

    An individual will be considered to be the parent, brother, or 
sister of a miner if the courts of the State in which such miner was 
domiciled (see Sec. 410.392) at the time of his death would find, under 
the law they would apply in determining the devolution of the miner's 
intestate personal property, that the individual is the miner's parent, 
brother, or sister. Where, under such law, the individual does not bear 
the relationship to the miner of parent, brother, or sister, but would, 
under State law, have the same status (i.e., right to share in the 
miner's intestate personal property) as a parent, brother, or sister, 
the individual will be deemed to be such. An individual will be 
considered to be the parent, brother, or sister of a miner if the 
individual is the stepparent, stepbrother, stepsister, half brother, or 
half sister of the miner, or is the parent, brother, or sister of the 
miner by adoption.

[37 FR 20639, Sept. 30, 1972]



Sec. 410.350  Determination of dependency; wife.

    An individual who is the miner's wife (see Sec. 410.310) will be 
determined to be dependent upon the miner if:
    (a) She is a member of the same household as the miner (see 
Sec. 410.393); or
    (b) She is receiving regular contributions from the miner for her 
support (see Sec. 410.395(c)); or
    (c) The miner has been ordered by a court to contribute to her 
support (see Sec. 410.395(e)); or
    (d) She is the natural mother of the son or daughter of the miner; 
or

[[Page 566]]

    (e) She was married to the miner (see Sec. 410.310) for a period of 
not less than 1 year.

[37 FR 20639, Sept. 30, 1972]



Sec. 410.351  Determination of dependency; divorced wife.

    An individual who is the miner's divorced wife (see Sec. 410.311) 
will be determined to be dependent upon the miner if:
    (a) She is receiving at least one-half of her support from the miner 
(see Sec. 410.395(g)); or
    (b) She is receiving substantial contributions from the miner 
pursuant to a written agreement (see Sec. 410.395 (c) and (f)); or
    (c) There is in effect a court order for substantial contributions 
to her support to be furnished by such miner (see Sec. 410.395 (c) and 
(e)).

[37 FR 20639, Sept. 30, 1972]



Sec. 410.360  Determination of dependency; widow.

    (a) General. An individual who is the miner's widow (see 
Sec. 410.320) will be determined to have been dependent on the miner if, 
at the time of the miner's death:
    (1) She was living with the miner (see Sec. 410.393); or
    (2) She was dependent upon the miner for support or the miner has 
been ordered by a court to contribute to her support (see Sec. 410.395); 
or
    (3) She was living apart from the miner because of his desertion or 
other reasonable cause; or
    (4) She is the natural mother of his son or daughter; or
    (5) She had legally adopted his son or daughter while she was 
married to him and while such son or daughter was under the age of 18; 
or
    (6) He had legally adopted her son or daughter while she was married 
to him and while such son or daughter was under the age of 18; or
    (7) She was married to him at the time both of them legally adopted 
a child under the age of 18; or
    (8) She was married to him for a period of not less than 9 months 
immediately prior to the day on which he died (but see paragraph (b) of 
this section).
    (b) Waiver of 9-month requirement--(1) General. Except as provided 
in paragraph (b)(3) of this section, the requirement in paragraph (a)(8) 
of this section that the surviving spouse of a miner must have been 
married to him for a period of not less than 9 months immediately prior 
to the day on which he died in order to qualify as such miner's widow, 
shall be deemed to be satisfied where such miner dies within the 
applicable 9-month period, if his death:
    (i) Is accidental (as defined in paragraph (b)(2) of this section), 
or
    (ii) Occurs in line of duty while he is a member of a uniformed 
service serving on active duty (as defined in Sec. 404.1013 (f) (2) and 
(3) of this chapter), and such surviving spouse was married to such 
miner for a period of not less than 3 months immediately prior to the 
day on which he died.
    (2) Accidental death. For purposes of paragraph (b)(1)(i) of this 
section, the death of a miner is accidental if such individual receives 
bodily injuries solely through violent, external, and accidental means 
and, as a direct result of the bodily injuries and independently of all 
other causes, loses his life not later than 3 months after the day on 
which he receives such bodily injuries. The term accident means an event 
that was unpremeditated and unforeseen from the standpoint of the 
deceased individual. To determine whether the death of an individual 
did, in fact, result from an accident the Administration will consider 
all the circumstances surrounding the casualty. An intentional and 
voluntary suicide will not be considered to be death by accident; 
however, suicide by an individual who is so insane as to be incapable of 
acting intentionally and voluntarily will be considered to be death by 
accident. In no event will the death of an individual resulting from 
violent and external causes be considered a suicide unless there is 
direct proof that the fatal injury was self-inflicted.
    (3) Applicability. The provisions of this paragraph shall not apply 
if the Administration determines that at the time of the marriage 
involved, the miner could not reasonably have been expected to live for 
9 months.

[37 FR 20639, Sept. 30, 1972]

[[Page 567]]



Sec. 410.361  Determination of dependency; surviving divorced wife.

    An individual who is the miner's surviving divorced wife (see 
Sec. 410.321) will be determined to have been dependent on the miner if, 
for the month preceding the month in which the miner died:
    (a) She was receiving at least one-half of her support from the 
miner (see Sec. 410.395(g)); or
    (b) She was receiving substantial contributions from the miner 
pursuant to a written agreement (see Sec. 410.395 (c) and (f)); or
    (c) There was in effect a court order for substantial contributions 
to her support to be furnished by such miner (see Sec. 410.395 (c) and 
(e)).

[37 FR 20639, Sept. 30, 1972]



Sec. 410.370  Determination of dependency; child.

    For purposes of augmenting the benefits of a miner or widow (see 
Sec. 410.510 (c)), the term beneficiary as used in this section means 
only a miner or widow entitled to benefits (see Secs. 410.201 and 
410.210); or, for purposes of an individual's entitlement to benefits as 
a surviving child (see Sec. 410.212), the term beneficiary as used in 
this section means only a deceased miner (see Sec. 410.200) or a 
deceased widow who was entitled to benefits for the month prior to the 
month of her death (see Secs. 410.210 and 410.211). An individual who is 
the beneficiary's child (see Sec. 410.330) will, as applicable, be 
determined to be, or to have been, dependent on the beneficiary, if the 
child:
    (a) Is unmarried; and
    (b)(1) Is under 18 years of age; or
    (2) Is 18 years of age or older and is under a disability as defined 
in section 223(d) of the Social Security Act, 42 U.S.C. 423(d) (see 
subpart P of part 404 of this chapter). For purposes of entitlement to 
benefits as a surviving child (see Sec. 410.212), such disability must 
have begun:
    (i) Before the child attained age 22; however, no entitlement to 
child's benefits may be established for any month before January 1973, 
based on a disability which began after attainment of age 18; or
    (ii) In the case of a student, before he ceased to be a student (see 
paragraph (c) of this section); or
    (3) Is 18 years of age or older and is a student.
    (c)(1) The term student means a full-time student as defined in 
section 202(d)(7) of the Social Security Act, 42 U.S.C. 402(d)(7) (see 
Sec. 404.320(c) of this chapter), or an individual under 23 years of age 
who has not completed 4 years of education beyond the high school level 
and who is regularly pursuing a full-time course of study or training at 
an institution which is:
    (i) A school, college, or university operated or directly supported 
by the United States, or by a State or local government or political 
subdivision thereof; or
    (ii) A school, college, or university which has been accredited by a 
State or by a State-recognized or nationally recognized accrediting 
agency or body; or
    (iii) A school, college, or university not so accredited but whose 
credits are accepted, on transfer, by at least three institutions which 
are so accredited, for credit on the same basis as if transferred from 
an institution so accredited; or
    (iv) A technical, trade, vocational, business, or professional 
school accredited or licensed by the Federal, or a State government or 
any political subdivision thereof, providing courses of not less than 3 
months' duration that prepare the student for a livelihood in a trade, 
industry, vocation, or profession.
    (2) A student will be considered to be ``pursuing a full-time course 
of study or training at an institution'' if he is enrolled in a 
noncorrespondence course and is carrying a subject load which is 
considered full time for day students under the institution's standards 
and practices. However, a student will not be considered to be 
``pursuing a full-time course of study or training'' if he is enrolled 
in a course of study or training of less than 13 school weeks' duration. 
A student beginning or ending a full-time course of study or training in 
part of any month will be considered to be pursuing such course for the 
entire month.

[[Page 568]]

    (3) A child is deemed not to have ceased to be a student:
    (i) During any interim between school years, if the interim does not 
exceed 4 months and he shows to the satisfaction of the Administration 
that he has a bona fide intention of continuing to pursue a full-time 
course of study or training during the semester or other enrollment 
period immediately after the interim; or
    (ii) During periods of reasonable duration during which, in the 
judgment of the Administration, he is prevented by factors beyond his 
control from pursuing his education.
    (4) A student who completes 4 years of education beyond the high 
school level, or whose 23rd birthday occurs during a semester or other 
enrollment period in which he is pursuing a full-time course of study or 
training shall continue to be considered a student for as long as he 
otherwise qualifies under this section until the end of such period.

[37 FR 20639, Sept. 30, 1972, as amended at 41 FR 7091, Feb. 17, 1976]



Sec. 410.380  Determination of dependency; parent, brother, or sister.

    An individual who is the miner's parent, brother, or sister (see 
Sec. 410.340) will be determined to have been dependent on the miner if, 
during the 1-year period immediately prior to such miner's death:
    (a) Such individual and the miner were living in the same household 
(see Sec. 410.393); and
    (b) Such individual was totally dependent on the miner for support 
(see Sec. 410.395(h)).

[37 FR 20640, Sept. 30, 1972]



Sec. 410.390  Time of determinations.

    (a) Relationship and dependency of wife or child. With respect to 
the wife or child of a miner entitled to benefits, and with respect to 
the child of a widow entitled to benefits, the determination as to 
whether an individual purporting to be a wife or child is related to or 
dependent upon such miner or widow shall be based on the facts and 
circumstances with respect to the period of time as to which such issue 
of relationship or dependency is material. (See, for example, 
Sec. 410.510(c).)
    (b) Relationship and dependency of widow. The determination as to 
whether an individual purporting to be the widow of a miner was related 
to or dependent upon such miner is made after such individual 
effectively files a claim for benefits (see Sec. 410.227) as a widow. 
Such determination is based on the facts and circumstances with respect 
to the time of the miner's death (except as provided in 
Sec. 410.320(d)). A prior determination that such individual was 
determined to be, or not to be, the wife of such miner, pursuant to 
Secs. 410.310 and 410.350, for purposes of augmenting the miner's 
benefits for a certain period (see Sec. 410.510(c)), is not 
determinative of the issue of whether the individual is the widow of 
such miner or of whether she was dependent on such miner.
    (c) Relationship and dependency of surviving divorced wife. The 
determination as to whether an individual purporting to be a surviving 
divorced wife of a miner was related to or dependent upon such miner is 
made when such individual effectively files a claim for benefits (see 
Sec. 410.227) as a surviving divorced wife. Such determination is made 
with respect to the time of the miner's death. A prior determination 
that such individual was, or was not, the divorced wife of such miner, 
pursuant to Secs. 410.311 and 410.351, for purposes of augmenting the 
miner's benefits for a certain period (see Sec. 410.510(c)), is not 
determinative of the issue of whether the individual is the surviving 
divorced wife of such miner or of whether she was dependent on such 
miner.

[37 FR 20640, Sept. 30, 1972]



Sec. 410.391  Legal impediment.

    For purposes of this subpart C, legal impediment means an impediment 
resulting from the lack of dissolution of a previous marriage or 
otherwise arising out of such previous marriage or its dissolution, or 
resulting from a defect in the procedure followed in connection with the 
purported marriage ceremony--for example, the solemnization of a 
marriage only through a religious ceremony in a country which requires a 
civil ceremony for a valid marriage.

[36 FR 23756, Dec. 14, 1971]

[[Page 569]]



Sec. 410.392  Domicile.

    (a) For purposes of this subpart C, the term domicile means the 
place of an individual's true, fixed, and permanent home to which, 
whenever he is absent, he has the intention of returning.
    (b) The domicile of a deceased miner or widow is determined as of 
the time of his or her death.
    (c) The domicile or a change in domicile of a beneficiary or other 
individual is determined with respect to the period or periods of time 
as to which the issue of domicile is material.
    (d) If an individual was not domiciled in any State at the pertinent 
time, the law of the District of Columbia is applied as if such 
individual were then domiciled there.

[36 FR 23756, Dec. 14, 1971, as amended at 37 FR 20640, Sept. 30, 1972]



Sec. 410.393  ``Member of the same household''; ``living with''; ``living in the same household''; and ``living in the miner's household.''

    (a) Defined. (1) The term member of the same household as used in 
section 402(a)(2) of the Act (with respect to a wife); the term living 
with as used in section 402(e) of the Act (with respect to a widow); and 
the term living in the same household as used in Secs. 410.310(d) and 
410.320(d) (with respect to certain wives and widows, respectively), 
mean that a husband and wife were customarily living together as husband 
and wife in the same place of abode.
    (2) The term living in the miner's household as used in section 
412(a)(5) of the Act (with respect to a parent, brother, or sister (see 
Sec. 410.380)), means that the miner and such parent, brother, or 
sister, were sharing the same residence.
    (b) Temporary absence. The temporary absence from the same residence 
of either the miner, or his wife, parent, brother, or sister (as the 
case may be), does not preclude a finding that one was living with the 
other, or that they were members of the same household, etc. The absence 
of one such individual from the residence in which both had customarily 
lived shall, in the absence of evidence to the contrary, be considered 
temporary;
    (1) If such absence was due to service in the Armed Forces of the 
United States; or
    (2) If the period of absence from his or her residence did not 
exceed 6 months, and neither individual was outside the United States, 
and the absence was due to business or employment reasons, or because of 
confinement in a penal institution or in a hospital, nursing home, or 
other curative institution; or
    (3) In any other case, if the evidence establishes that despite such 
absence they nevertheless reasonably expected to resume physically 
living together at some time in the reasonably near future.
    (c) Death during absence. Where the death of one of the parties 
occurred while away from the residence for treatment or care of an 
illness or an injury (e.g., in a hospital), the fact that the death was 
foreseen as possible or probable does not in and of itself preclude a 
finding that the parties were ``living with'' one another or were 
``member[s] of the same household'' etc. at the time of death.
    (d) Absences other than temporary. In situations other than those 
described in paragraphs (b) and (c) of this section, the absence shall 
not be considered temporary, and the parties may not be found to be 
``living with'' one another or to be ``member[s] of the same household'' 
etc. A finding of temporary absence would not be justified where one of 
the parties was committed to a penal institution for life or for a 
period exceeding the reasonable life expectancy of either, or was under 
a sentence of death; or where the parties had ceased to live in the same 
place of abode because of marital or family difficulties and had not 
resumed living together before death.
    (e) Relevant period of time. (1) The determination as to whether a 
widow had been ``living with'' her husband shall be based upon the facts 
and circumstances as of the time of death of the miner.
    (2) The determination as to whether a wife is a ``member of the same 
household'' as her husband shall be based upon the facts and 
circumstances with respect to the period or periods of time as to which 
the issue of membership in

[[Page 570]]

the same household is material. (See Sec. 410.510(c).)
    (3) The determination as to whether a parent, brother, or sister was 
``living in the miner's household'' shall take account only of the 1-
year period immediately prior to the miner's death. (See Sec. 410.380.)

[37 FR 20640, Sept. 30, 1972]



Sec. 410.394  [Reserved]



Sec. 410.395  Contributions and support.

    (a) Support defined. The term support includes food, shelter, 
clothing, ordinary medical expenses, and other ordinary and customary 
items for the maintenance of the person supported.
    (b) Contributions defined. The term contributions refers to 
contributions actually provided by the contributor from his own 
property, or the use thereof, or by the use of his own credit.
    (c) Regular contributions and substantial contributions defined. The 
terms regular contributions and substantial contributions mean 
contributions that are customary and sufficient to constitute a material 
factor in the cost of the individual's support.
    (d) Contributions and community property. When a wife receives, and 
uses for her support, income from her services or property and such 
income, under applicable State law, is the community property of herself 
and the miner, no part of such income is a contribution by the miner to 
his wife's support regardless of any legal interest the miner may have 
therein. However, when a wife receives, and uses for her support, income 
from the services and the property of the miner and, under applicable 
State law, such income is community property, all of such income is 
considered to be a contribution by the miner to his wife's support.
    (e) Court order for support defined. References to support orders in 
Secs. 410.330 (f)(1), 410.350(c), and 410.360(b) mean any court order, 
judgment, or decree of a court of competent jurisdiction which requires 
regular contributions that are a material factor in the cost of the 
individual's support and which is in effect at the applicable time. If 
such contributions are required by a court order, this condition is met 
whether or not the contributions were actually made.
    (f) Written agreement defined. The term written agreement in the 
phrase substantial contributions * * * pursuant to a written agreement 
(see Secs. 410.351 (b) and 410.361(b)) means an agreement signed by the 
miner providing for substantial contributions by him for the 
individual's support. It must be in effect at the applicable time but it 
need not be legally enforceable.
    (g) One-half support defined. The term one-half support means that 
the miner made regular contributions, in cash or in kind, to the support 
of a divorced wife (see Sec. 410.351(a)), or of a surviving divorced 
wife (see Sec. 410.361 (a)), at the specified time or for the specified 
period, and that the amount of such contributions equaled or exceeded 
one-half the total cost of such individual's support at such time or 
during such period.
    (h) Totally dependent for support defined. The term totally 
dependent on the miner for support as used in Sec. 410.380(b), means 
that such miner made regular contributions to the support of his parent, 
brother, or sister, as the case may be, and that the amount of such 
contributions at least equaled the total cost of such individual's 
support.

[37 FR 20641, Sept. 30, 1972]



       Subpart D--Total Disability or Death Due to Pneumoconiosis

    Authority:  Secs. 401-426, 83 Stat. 792, as amended, 86 Stat. 150; 
30 U.S.C. 901 et seq.

    Source:  37 FR 20641, Sept. 30, 1972, unless otherwise noted.



Sec. 410.401  Scope of subpart D.

    (a) General. This subpart establishes the standards for determining 
whether a coal miner is totally disabled due to pneumoconiosis, whether 
he was totally disabled due to pneumoconiosis at the time of his death, 
or whether his death was due to pneumoconiosis.
    (b) Pneumoconiosis defined. Pneumoconiosis means:
    (1) A chronic dust disease of the lung arising out of employment in 
the Nation's coal mines, and includes coal workers' pneumoconiosis, 
anthracosilicosis, anthracosis, anthrosilicosis,

[[Page 571]]

massive pulmonary fibrosis, progressive massive fibrosis, silicosis, or 
silicotuberculosis, arising out of such employment. For purposes of this 
subpart, the term also includes the following conditions that may be the 
basis for application of the statutory presumption of disability or 
death due to pneumoconiosis under the circumstances prescribed in 
section 411 (c) of the Act;
    (2) Any other chronic respiratory or pulmonary impairment when the 
conditions are met for the application of the presumption described in 
Sec. 410.414(b) or Sec. 410.454(b), and
    (3) Any respirable disease when the conditions are met for the 
application of the presumption described in Sec. 410.462. The provisions 
for determining that a miner is or was totally disabled due to 
pneumoconiosis or its sequelae are included in Secs. 410.410 through 
410.430 and in the Appendix following this subpart D. The provisions for 
determining that a miner's death was due to pneumoconiosis are included 
in Secs. 410.450 through 410.462. Certain related provisions of general 
application are included in Secs. 410.470 through 410.476.
    (c) Relation to the Social Security Act. Section 402(f) of the Act, 
as amended, 30 U.S.C. 902(f), provides that regulations defining total 
disability ``shall not provide more restrictive criteria than those 
applicable under section 223(d) of the Social Security Act.'' Section 
413(b) of the Act, 30 U.S.C. 923(b), also provides, in pertinent part, 
that in ``carrying out the provisions of this part [that is, part B of 
title IV of the Act], the Secretary [of Health, Education, and Welfare] 
shall to the maximum extent feasible (and consistent with the provisions 
of this part) utilize the * * * procedures he uses in determining 
entitlement to disability insurance benefits under section 223 of the 
Social Security Act * * *.''



Sec. 410.410  Total disability due to pneumoconiosis, including statutory presumption.

    (a) Benefits are provided under the Act to coal miners ``who are 
totally disabled due to pneumoconiosis arising out of employment in one 
or more of the Nation's coal mines,'' and to the eligible survivors of 
miners who are determined to have been totally disabled due to 
pneumoconiosis at the time of their death. (For benefits to the eligible 
survivors of miners whose deaths are determined to have been due to 
pneumoconiosis, see Sec. 410.450.)
    (b) To establish entitlement to benefits on the basis of a coal 
miner's total disability due to pneumoconiosis, a claimant must submit 
the evidence necessary to establish: (1) That he is a coal miner, that 
he is totally disabled due to pneumoconiosis, and that his 
pneumoconiosis arose out of employment in the Nation's coal mines; or 
(2) that the deceased individual was a miner, that he was totally 
disabled due to pneumoconiosis at the time of his death, and that his 
pneumoconiosis arose out of employment in the Nation's coal mines.
    (c) Total disability is defined in Sec. 410.412; the basic provision 
on determining the existence of pneumoconiosis is in Sec. 410.414; and 
the requirement that the pneumoconiosis must have arisen out of coal 
mine employment is in Sec. 410.416. The statutory presumptions with 
respect to the burden of proving the foregoing are in Secs. 410.414(b), 
410.416(a), and 410.418, and the provision for determining the existence 
of total disability when the presumption in Sec. 410.418 does not apply 
is included in Sec. 410.422.



Sec. 410.412  ``Total disability'' defined.

    (a) A miner shall be considered totally disabled due to 
pneumoconiosis if:
    (1) His pneumoconiosis prevents him from engaging in gainful work in 
the immediate area of his residence requiring the skills and abilities 
comparable to those of any work in a mine or mines in which he 
previously engaged with some regularity and over a substantial period of 
time (that is, ``comparable and gainful work''; see Secs. 410.424 
through 410.426); and
    (2) His impairment can be expected to result in death, or has lasted 
or can be expected to last for a continuous period of not less than 12 
months.
    (b) A miner shall be considered to have been totally disabled due to 
pneumoconiosis at the time of his death, if at the time of his death:

[[Page 572]]

    (1) His pneumoconiosis prevented him from engaging in gainful work 
in the immediate area of his residence requiring the skills and 
abilities comparable to those of any work in a mine or mines in which he 
previously engaged with some regularity and over a substantial period of 
time (that is, ``comparable and gainful work''; see Secs. 410.424 
through 410.426); and
    (2) His impairment was expected to result in death, or it lasted or 
was expected to last for a continuous period of not less than 12 months.



Sec. 410.414  Determining the existence of pneumoconiosis, including statutory presumption.

    (a) General. A finding of the existence of pneumoconiosis as defined 
in Sec. 410.110(o)(1) may be made under the provisions of Sec. 410.428 
by:
    (1) Chest roentgenogram (X-ray); or
    (2) Biopsy; or
    (3) Autopsy.
    (b) Presumption relating to respiratory or pulmonary impairment. (1) 
Even though the existence of pneumoconiosis is not established as 
provided in paragraph (a) of this section, if other evidence 
demonstrates the existence of a totally disabling chronic respiratory or 
pulmonary impairment (see Secs. 410.412, 410.422, and 410.426), it may 
be presumed, in the absence of evidence to the contrary (see paragraph 
(b)(2) of this section), that a miner is totally disabled due to 
pneumoconiosis, or that a miner was totally disabled due to 
pneumoconiosis at the time of his death.
    (2) This presumption may be rebutted only if it is established that 
the miner does not, or did not, have pneumoconiosis, or that his 
respiratory or pulmonary impairment did not arise out of, or in 
connection with, employment in a coal mine.
    (3) The provisions of this paragraph shall apply where a miner was 
employed for 15 or more years in one or more of the Nation's underground 
coal mines; in one or more of the Nation's other coal mines where the 
environmental conditions were substantially similar to those in an 
underground coal mine; or in any combination of both.
    (4) However, where the evidence shows a work history reflecting many 
years of such coal mine employment (although less than 15), as well as a 
severe lung impairment, such evidence may be considered, in the exercise 
of sound judgment, to establish entitlement in such case, provided that 
a mere showing of a respiratory or pulmonary impairment shall not be 
sufficient to establish such entitlement.
    (c) Other relevant evidence. Even though the existence of 
pneumoconiosis is not established as provided in paragraph (a) or (b) of 
this section, a finding of total disability due to pneumoconiosis may be 
made if other relevant evidence establishes the existence of a totally 
disabling chronic respiratory or pulmonary impairment, and that such 
impairment arose out of employment in a coal mine. As used in this 
paragraph, the term other relevant evidence includes medical tests such 
as blood gas studies, electrocardiogram, pulmonary function studies, or 
physical performance tests, and any medical history, evidence submitted 
by the miner's physician, his spouse's affidavits, and in the case of a 
deceased miner, other appropriate affidavits of persons with knowledge 
of the individual's physical condition, and other supportive materials. 
In any event, no claim for benefits under part B of title IV of the Act 
shall be denied solely on the basis of a negative chest roentgenogram 
(X-ray).



Sec. 410.416  Determining origin of pneumoconiosis, including statutory presumption.

    (a) If a miner was employed for 10 or more years in the Nation's 
coal mines, and is suffering or suffered from pneumoconiosis, it will be 
presumed, in the absence of persuasive evidence to the contrary, that 
the pneumoconiosis arose out of such employment.
    (b) In any other case, a miner who is suffering or suffered from 
pneumoconiosis, must submit the evidence necessary to establish that the 
pneumoconiosis arose out of employment in the Nation's coal mines. (See 
Sec. 410.110(h), (i), (j), (k), (l), and (m).)

[[Page 573]]



Sec. 410.418  Irrebuttable presumption of total disability due to pneumoconiosis.

    There is an irrebuttable presumption that a miner is totally 
disabled due to pneumoconiosis, or that a miner was totally disabled due 
to pneumoconiosis at the time of his death, if he is suffering or 
suffered from a chronic dust disease of the lung which:
    (a) When diagnosed by chest roentgenogram (X-ray), yields one or 
more large opacities (greater than 1 centimeter in diameter) and would 
be classified in Category A, B, or C (that is, as complicated 
pneumoconiosis), in:
    (1) The ILO-U/C International Classification of Radiographs of 
Pneumoconioses, 1971, or
    (2) The International Classification of the Radiographs of the 
Pneumoconioses of the International Labour Office, Extended 
Classification (1968) (which may be referred to as the ``ILO 
Classification (1968)''), or
    (3) The Classification of the Pneumoconiosis of the Union 
Internationale Contra Cancer/Cincinnati (1968) (which may be referred to 
as the ``UICC/Cincinnati (1968) Classification''); or
    (b) When diagnosed by biopsy or autopsy, yields massive lesions in 
the lung. The report of biopsy or autopsy will be accepted as evidence 
of complicated pneumoconiosis if the histological findings show simple 
pneumoconiosis and progressive massive fibrosis; or
    (c) When established by diagnoses by means other than those 
specified in paragraphs (a) and (b) of this section, would be a 
condition which could reasonably be expected to yield the results 
described in paragraph (a) or (b) of this section had diagnoses been 
made as therein prescribed; Provided, however, That any diagnoses made 
under this paragraph shall accord with generally accepted medical 
procedures for diagnosing pneumoconiosis.



Sec. 410.422  Determining total disability: General criteria.

    (a) A determination of total disability due to pneumoconiosis is 
made in accordance with this section when a miner cannot be presumed to 
be totally disabled due to pneumoconiosis (or to have been totally 
disabled due to pneumoconiosis at the time of his death), under the 
provisions of Sec. 410.418. In addition, when a miner has (or had) a 
chronic respiratory or pulmonary impairment, a determination of whether 
or not such impairment is (or was) totally disabling is also made in 
accordance with this section for purposes of Sec. 410.414(b).
    (b) A determination of total disability may not be made for purposes 
of this part unless pneumoconiosis is (or is presumed to be) the 
impairment involved.
    (c) Whether or not the pneumoconiosis in a particular case renders 
(or rendered) a miner totally disabled, as defined in Sec. 410.412, is 
determined from all the facts of that case. Primary consideration is 
given to the medical severity of the individual's pneumoconiosis (see 
Sec. 410.424). Consideration is also given to such other factors as the 
individual's age, education, and work experience (see Sec. 410.426).



Sec. 410.424  Determining total disability: Medical criteria only.

    (a) Medical considerations alone shall justify a finding that a 
miner is (or was) totally disabled where his impairment is one that 
meets (or met) the duration requirement in Sec. 410.412(a)(2) or 
Sec. 410.412(b)(2), and is listed in the Appendix to this subpart, or if 
his impairment is medically the equivalent of a listed impairment. 
However, medical considerations alone shall not justify a finding that 
an individual is (or was) totally disabled if other evidence rebuts such 
a finding, e.g., the individual is (or was) engaged in comparable and 
gainful work (see Sec. 410.412).
    (b) An individual's impairment shall be determined to be medically 
the equivalent of an impairment listed in the appendix to this subpart 
only if the medical findings with respect thereto are at least 
equivalent in severity and duration to the listed findings of the listed 
impairment. Any decision as to whether an individual's impairment is 
medically the equivalent of an impairment listed in the Appendix to this 
subpart, shall be based on medically accepted clinical and laboratory 
diagnostic techniques, including a medical

[[Page 574]]

judgment furnished by one or more physicians designated by the 
Administration, relative to the question of medical equivalence.



Sec. 410.426  Determining total disability: Age, education, and work experience criteria.

    (a) Pneumoconiosis which constitutes neither an impairment listed in 
the appendix to this subpart (see Sec. 410.424), nor the medical 
equivalent thereof, shall nevertheless be found totally disabling if 
because of the severity of such impairment, the miner is (or was) not 
only unable to do his previous coal mine work, but also cannot (or could 
not), considering his age, his education, and work experience, engage in 
any other kind of comparable and gainful work (see Sec. 410.412(a)(1)) 
available to him in the immediate area of his residence. A miner shall 
be determined to be under a disability only if his pneumoconiosis is (or 
was) the primary reason for his inability to engage in such comparable 
and gainful work. Medical impairments other than pneumoconiosis may not 
be considered.
    The following criteria recognize that an impairment in the transfer 
of oxygen from the lung alveoli to cellular level can exist in an 
individual even though his chest roentgenogram (X-ray) or ventilatory 
function tests are normal.
    (b) Subject to the limitations in paragraph (a) of this section, 
pneumoconiosis shall be found disabling if it is established that the 
miner has (or had) a respiratory impairment because of pneumoconiosis 
demonstrated on the basis of a ventilatory study in which the maximum 
voluntary ventilation (MVV) or maximum breathing capacity (MBC), and 1-
second forced expiratory volume (FEV1), are equal to or less 
than the values specified in the following table or by a medically 
equivalent test:

------------------------------------------------------------------------
                                                   MVV (MBC)            
                                                   equal to   FEV1 equal
                 Height (inches)                    or less   to or less
                                                   than L./     than I. 
                                                     Min.               
------------------------------------------------------------------------
57 or less......................................          52         1.4
58..............................................          53         1.4
59..............................................          54         1.4
60..............................................          55         1.5
61..............................................          56         1.5
62..............................................          57         1.5
63..............................................          58         1.5
64..............................................          59         1.6
65..............................................          60         1.6
66..............................................          61         1.6
67..............................................          62         1.7
68..............................................          63         1.7
69..............................................          64         1.8
70..............................................          65         1.8
71..............................................          66         1.8
72..............................................          67         1.9
73 or more......................................          68         1.9
------------------------------------------------------------------------

    (c) Where the values specified in paragraph (b) of this section are 
not met, pneumoconiosis may nevertheless be found disabling if a 
physical performance test establishes a chronic respiratory or pulmonary 
impairment which is medically the equivalent of the values specified in 
the table in paragraph (b) of this section. Any decision with respect to 
such medical equivalence shall be based on medically accepted clinical 
and laboratory diagnostic techniques including a medical judgment 
furnished by one or more physicians designated by the Administration.
    (d) Where a ventilatory study and/or a physical performance test is 
medically contraindicated, or cannot be obtained, or where evidence 
obtained as a result of such tests does not establish that the miner is 
totally disabled, pneumoconiosis may nevertheless be found totally 
disabling if other relevant evidence (see Sec. 410.414(c)) establishes 
that the miner has (or had) a chronic respiratory or pulmonary 
impairment, the severity of which prevents (or prevented) him not only 
from doing his previous coal mine work, but also, considering his age, 
his education, and work experience, prevents (or prevented) him from 
engaging in comparable and gainful work.
    (e) When used in this section, the term age refers to chronological 
age and the extent to which it affects the miner's capacity to engage in 
comparable and gainful work.
    (f) When used in this section, the term education is used in the 
following sense: Education and training are factors in determining the 
employment capacity of a miner. Lack of formal schooling, however, is 
not necessarily

[[Page 575]]

proof that a miner is an uneducated person. The kinds of 
responsibilities with which he was charged when working may indicate 
ability to do more than unskilled work even though his formal education 
has been limited.



Sec. 410.428  X-ray, biopsy, and autopsy evidence of pneumoconiosis.

    (a) A finding of the existence of pneumoconiosis as defined in 
Sec. 410.110(o)(1) may be made under the provisions of Sec. 410.414(a) 
if:
    (1) A chest roentgenogram (X-ray) establishes the existence of 
pneumoconiosis classified as Category 1, 2, 3, A, B, or C according to:
    (i) The ILO-U/C International Classification of Radiographs of 
Pneumoconioses, 1971; or
    (ii) The International Classification of Radiographs of the 
Pneumoconioses of the International Labour Office, Extended 
Classification (1968); or
    (iii) The Classification of the Pneumoconioses of the Union 
Internationale Contra Cancer/Cincinnati (1968).

A chest roentgenogram (X-ray) classified as Category Z under the ILO 
Classification (1958) or Short Form (1968) will be reclassified as 
Category 0 or Category 1 and only the latter accepted as evidence of 
pneumoconiosis. A chest roentgenogram (X-ray) classified under any of 
the foregoing classifications as Category 0, including subcategories o/-
, o/o, or o/1 under the UICC/Cincinnati (1968) Classification, is not 
accepted as evidence of pneumoconiosis; or
    (2) An autopsy shows the existence of pneumoconiosis, or
    (3) A biopsy (other than a needle biopsy) shows the existence of 
pneumoconiosis. Such biopsy would not be expected to be performed for 
the sole purpose of diagnosing pneumoconiosis. Where a biopsy is 
performed for other purposes, however (e.g., in connection with a lung 
resection), the report thereof will be considered in determining the 
existence of pneumoconiosis.
    (b) The roentgenogram shall be of suitable quality for proper 
classification of the pneumoconioses and conform to accepted medical 
standards. It should represent a posterior-anterior view of the chest, 
and such other views as the Administration may require, taken at a 
preferred distance of 6 feet (a minimum of 5 feet is required) between 
the focal point and the film on a 14  x  17 inch or 14  x  14 inch X-ray 
film. Additional films or views should be obtained, if necessary, to 
provide a suitable roentgenogram (X-ray) for proper classification 
purposes.
    (c) A report of autopsy or biopsy shall include a detailed gross 
(macroscopic) and microscopic description of the lungs or visualized 
portion of a lung. If an operative procedure has been performed to 
obtain a portion of a lung, the evidence should include a copy of the 
operative note and the pathology report of the gross and microscopic 
examination of the surgical specimen. If any autopsy has been performed, 
the evidence should include a complete copy of the autopsy report.



Sec. 410.430  Ventilatory studies.

    Spirometric tests to measure ventilatory function must be expressed 
in liters or liters per minute. The reported maximum voluntary 
ventilation (MVV) or maximum breathing capacity (MBC) and 1-second 
forced expiratory volume (FEV1) should represent the largest 
of at least three attempts. The MVV or the MBC reported should represent 
the observed value and should not be calculated from FEV1. 
The three appropriately labeled spirometric tracings, showing distance 
per second on the abscissa and the distance per liter on the ordinate, 
must be incorporated in the file. The paper speed to record the 
FEV1 should be at least 20 millimeters (mm.) per second. The 
height of the individual must be recorded. Studies should not be 
performed during or soon after an acute respiratory illness. If wheezing 
is present on auscultation of the chest, studies must be performed 
following administration of nebulized broncho-dilator unless use of the 
later is contraindicated. A statement shall be made as to the 
individual's ability to understand the directions, and cooperate in 
performing the tests. If the tests cannot be completed the reason for 
such failure should be explained.



Sec. 410.432  Cessation of disability.

    (a) Where it has been determined that a miner is totally disabled 
under

[[Page 576]]

Sec. 410.412, such disability shall be found to have ceased in the month 
in which his impairment, as established by medical or other relevant 
evidence, is no longer of such severity as to prevent him from engaging 
in comparable and gainful work.
    (b) Except where a finding is made as specified in paragraph (a) of 
this section which results in an earlier month of cessation, if a miner 
is requested to furnish necessary medical or other evidence or to 
present himself for a necessary medical examination by a date specified 
in the request or a date extended at the miner's request for good cause, 
and the miner fails to comply with such request, the disability may be 
found to have ceased in the month within which the date for compliance 
falls, unless the Administration determines that there is a good cause 
for such failure.
    (c) Before a determination is made that a miner's disability has 
ceased, such miner shall be given notice and an opportunity to present 
evidence including that from medical sources of his own choosing and 
arguments and contention that his disability has not ceased.



Sec. 410.450  Death due to pneumoconiosis, including statutory presumption.

    Benefits are provided under the Act to the eligible survivor of a 
coal miner who was entitled to benefits at the time of his death, or 
whose death is determined to have been due to pneumoconiosis. (For 
benefits to the eligible survivors of a miner who is determined to have 
been totally disabled due to pneumoconiosis at the time of his death, 
regardless of the cause of death, see Secs. 410.410 through 410.430.) 
Except as otherwise provided in Secs. 410.454 through 410.462, the 
claimant must submit the evidence necessary to establish that the 
miner's death was due to pneumoconiosis and that the pneumoconiosis 
arose out of employment in the Nation's coal mines.



Sec. 410.454  Determining the existence of pneumoconiosis, including statutory presumption--survivor's claim.

    (a) Medical findings. A finding of the existence of pneumoconiosis 
as defined in Sec. 410.110(o)(1) may be made under the provisions of 
Sec. 410.428 by:
    (1) Chest roentgenogram; or
    (2) Biopsy; or
    (3) Autopsy.
    (b) Presumption relating to respiratory or pulmonary impairment--
survivor's claim. (1) Even though the existence of pneumoconiosis is not 
established as provided in paragraph (a) of this section, if other 
evidence demonstrates the existence of a chronic respiratory or 
pulmonary impairment from which the miner was totally disabled (see 
Sec. 410.412) prior to his death, it will be presumed in the absence of 
evidence to the contrary (see paragraph (b)(2) of this section) that the 
death of the miner was due to pneumoconiosis.
    (2) This presumption may be rebutted only if it is established that 
the miner did not have pneumoconiosis, or that his respiratory or 
pulmonary impairment did not arise out of, or in connection with, 
employment in a coal mine.
    (3) The provisions of this paragraph shall apply where a miner was 
employed for 15 or more years in one or more of the Nation's underground 
coal mines; in one or more of the Nation's other coal mines where the 
environmental conditions were substantially similar to those in an 
underground coal mine; or in any combination of both.
    (4) However, where the evidence shows a work history reflecting many 
years of such coal mine employment (although less than 15) as well as a 
severe lung impairment, such evidence may be considered, in the exercise 
of sound judgment, to establish entitlement in such case: Provided, That 
a mere showing of a respiratory or pulmonary impairment shall not be 
sufficient to establish such entitlement.
    (c) Other relevant evidence. Even though the existence of 
pneumoconiosis is not established as provided in paragraph (a) or (b) of 
this section, a finding of death due to pneumoconiosis may be made if 
other relevant evidence establishes the existence of a totally disabling 
chronic respiratory or pulmonary impairment, and that such impairment 
arose out of employment in a coal mine. As used in this paragraph, the 
term other relevant evidence includes medical tests such as blood gas 
studies, electrocardiogram,

[[Page 577]]

pulmonary function studies, or physical performance tests, and any 
medical history, evidence submitted by the miner's physician, his 
spouse's affidavits, and in the case of a deceased miner, other 
appropriate affidavits of persons with knowledge of the individual's 
physical condition, and other supportive materials. In any event, no 
claim for benefits under part B of title IV of the Act shall be denied 
solely on the basis of a negative chest roentgenogram (X-ray).



Sec. 410.456  Determining origin of pneumoconiosis, including statutory presumption--survivor's claim.

    (a) If a miner was employed for 10 years or more in the Nation's 
coal mines, and suffered from pneumoconiosis, it will be presumed, in 
the absence of persuasive evidence to the contrary, that the 
pneumoconiosis arose out of such employment.
    (b) In any other case, the claimant must submit the evidence 
necessary to establish that the pneumoconiosis from which the deceased 
miner suffered, arose out of employment in the Nation's coal mines. (See 
Sec. 410.110 (h), (i), (j), (k), (l), and (m).)



Sec. 410.458  Irrebuttable presumption of death due to pneumoconiosis--survivor's claim.

    There is an irrebuttable presumption that the death of a miner was 
due to pneumoconiosis if he suffered from a chronic dust disease of the 
lung which meets the requirements of Sec. 410.418.



Sec. 410.462  Presumption relating to respirable disease.

    (a) Even though the existence of pneumoconiosis as defined in 
Sec. 410.110 (o)(1) is not established as provided in Sec. 410.454(a), 
if a deceased miner was employed for 10 years or more in the Nation's 
coal mines and died from a respirable disease, it will be presumed, in 
the absence of evidence to the contrary, that his death was due to 
pneumoconiosis arising out of employment in a coal mine.
    (b) Death will be found due to a respirable disease when death is 
medically ascribed to a chronic dust disease, or to another chronic 
disease of the lung. Death will not be found due to a respirable disease 
where the disease reported does not suggest a reasonable possibility 
that death was due to pneumoconiosis. Where the evidence establishes 
that a deceased miner suffered from pneumoconiosis or a respirable 
disease and death may have been due to multiple causes, death will be 
found due to pneumoconiosis if it is not medically feasible to 
distinguish which disease caused death or specifically how much each 
disease contributed to causing death.



Sec. 410.470  Determination by nongovernmental organization or other governmental agency.

    The decision of any nongovernmental organization or any other 
governmental agency that an individual is, or is not, disabled for 
purposes of any contract, schedule, regulation, or law, or that his 
death was or was not due to a particular cause, shall not be 
determinative of the question of whether or not an individual is totally 
disabled due to pneumoconiosis, or was totally disabled due to 
pneumoconiosis. As used in this section, the term other governmental 
agency includes the Administration with respect to a determination or 
decision relating to entitlement to disability insurance benefits under 
section 223 of the Social Security Act, since the requirements for 
entitlement under the latter Act differ from those relating to benefits 
under this part. However, a final determination or decision that an 
individual is disabled for purposes of section 223 of the Social 
Security Act where the cause of such disability is pneumoconiosis, shall 
be binding on the Administration on the issue of disability with respect 
to claims under this part.



Sec. 410.471  Conclusion by physician regarding miner's disability or death.

    The function of deciding whether or not an individual is totally 
disabled due to pneumoconiosis, or was totally disabled due to 
pneumoconiosis at the time of his death, or that his death was due to 
pneumoconiosis, is the responsibility of the Administration. A statement 
by a physician that an individual is, or is not, disabled, permanently 
disabled, totally disabled, totally and permanently disabled, unable to 
work, or a

[[Page 578]]

statement of similar import, being a conclusion upon the ultimate issue 
to be decided by the Administration, shall not be determinative of the 
question of whether or not an individual is under a disability. However, 
all statements and other evidence (including statements of the miner's 
physician) shall be considered in adjudicating a claim. In considering 
statements of the miner's physician, appropriate account shall be taken 
of the length of time he treated the miner.



Sec. 410.472  Consultative examinations.

    Upon reasonable notice of the time and place thereof, any individual 
filing a claim alleging to be totally disabled due to pneumoconiosis 
shall present himself for and submit to reasonable physical examinations 
or tests, at the expense of the Administration, by a physician or other 
professional or technical source designated by the Administration or the 
State agency authorized to make determinations as to disability. If any 
such individual fails or refuses to present himself for any examination 
or test, such failure or refusal, unless the Administration determines 
that there is good cause therefor, may be a basis for determining that 
such individual is not totally disabled. Religious or personal scruples 
against medical examination or test shall not excuse an individual from 
presenting himself for a medical examination or test. Any claimant may 
request that such test be performed by a physician or other professional 
or technical source of his choice, the reasonable expense of which shall 
be borne by the Administration (see Sec. 410.240(h)). However, granting 
such request does not preclude the Administration from requiring that 
additional or supplemental tests be conducted by a physician or other 
professional or technical source designated by the Administration.



Sec. 410.473  Evidence of continuation of disability.

    An individual who has been determined to be totally disabled due to 
pneumoconiosis, upon reasonable notice, shall, if requested to do so 
(e.g., where there is an issue about the validity of the original 
adjudication of disability) present himself for and submit to 
examinations or tests as provided in Sec. 410.472, and shall submit 
medical reports and other evidence necessary for the purposes of 
determining whether such individual continues to be under a disability.



Sec. 410.474  Place and manner of submitting evidence.

    Evidence in support of a claim for benefits based on disability 
shall be filed in the manner and at the place or places prescribed in 
subpart B of this part, or where appropriate, at the office of a State 
agency authorized under agreement with the Secretary to make 
determinations as to disability under title II of the Social Security 
Act, or with an employee of such State agency authorized to accept such 
evidence at a place other than such office.



Sec. 410.475  Failure to submit evidence.

    An individual shall not be determined to be totally disabled unless 
he furnishes such medical and other evidence thereof as is reasonably 
required to establish his claim. Religious or personal scruples against 
medical examinations, tests, or treatment shall not excuse an individual 
from submitting evidence of disability.



Sec. 410.476  Responsibility to give notice of event which may affect a change in disability status.

    An individual who is determined to be totally disabled due to 
pneumoconiosis shall notify the Administration promptly if:
    (a) His respiratory or pulmonary condition improves; or
    (b) He engages in any gainful work or there is an increase in the 
amount of such work or his earnings therefrom.



Sec. 410.490  Interim adjudicatory rules for certain part B claims filed by a miner before July 1, 1973, or by a survivor where the miner died before January 1, 
          1974.

    (a) Basis for rules. In enacting the Black Lung Act of 1972, the 
Congress noted that adjudication of the large backlog of claims 
generated by the earlier law could not await the establishment of 
facilities and development of medical tests not presently available to 
evaluate disability due to

[[Page 579]]

pneumoconiosis, and that such claims must be handled under present 
circumstances in the light of limited medical resources and techniques. 
Accordingly, the Congress stated its expectancy that the Secretary would 
adopt such interim evidentiary rules and disability evaluation criteria 
as would permit prompt and vigorous processing of the large backlog of 
claims consistent with the language and intent of the 1972 amendments 
and that such rules and criteria would give full consideration to the 
combined employment handicap of disease and age and provide for the 
adjudication of claims on the basis of medical evidence other than 
physical performance tests when it is not feasible to provide such 
tests. The provisions of this section establish such interim evidentiary 
rules and criteria. They take full account of the congressional 
expectation that in many instances it is not feasible to require 
extensive pulmonary function testing to measure the total extent of an 
individual's breathing impairment, and that an impairment in the 
transfer of oxygen from the lung alveoli to cellular level can exist in 
an individual even though his chest roentgenogram (X-ray) or ventilatory 
function tests are normal.
    (b) Interim presumption. With respect to a miner who files a claim 
for benefits before July 1, 1973, and with respect to a survivor of a 
miner who dies before January 1, 1974, when such survivor timely files a 
claim for benefits, such miner will be presumed to be totally disabled 
due to pneumoconiosis, or to have been totally disabled due to 
pneumoconiosis at the time of his death, or his death will be presumed 
to be due to pneumoconiosis, as the case may be, if:
    (1) One of the following medical requirements is met:
    (i) A chest roentgenogram (X-ray), biopsy, or autopsy establishes 
the existence of pneumoconiosis (see Sec. 410.428); or
    (ii) In the case of a miner employed for at least 15 years in 
underground or comparable coal mine employment, ventilatory studies 
establish the presence of a chronic respiratory or pulmonary disease 
(which meets the requirements for duration in Sec. 410.412(a)(2)) as 
demonstrated by values which are equal to or less than the values 
specified in the following table:

------------------------------------------------------------------------
                                                       Equal to or less 
                                                            than--      
                                                     -------------------
                                                       FEV  1      MVV  
------------------------------------------------------------------------
70..................................................        65       1.8
67" or less.........................................       2.3        92
68".................................................       2.4        96
69".................................................       2.4        96
70".................................................       2.5       100
71".................................................       2.6       104
72".................................................       2.6       104
73" or more.........................................       2.7       108
------------------------------------------------------------------------

    (2) The impairment established in accordance with paragraph (b)(1) 
of this section arose out of coal mine employment (see Secs. 410.416 and 
410.456).
    (3) With respect to a miner who meets the medical requirements in 
paragraph (b)(1)(ii) of this section, he will be presumed to be totally 
disabled due to pneumoconiosis arising out of coal mine employment, or 
to have been totally disabled at the time of his death due to 
pneumoconiosis arising out of such employment, or his death will be 
presumed to be due to pneumoconiosis arising out of such employment, as 
the case may be, if he has at least 10 years of the requisite coal mine 
employment.
    (c) Rebuttal of presumption. The presumption in paragraph (b) of 
this section may be rebutted if:
    (1) There is evidence that the individual is, in fact, doing his 
usual coal mine work or comparable and gainful work (see 
Sec. 410.412(a)(1)), or
    (2) Other evidence, including physical performance tests (where such 
tests are available and their administration is not contraindicated), 
establish that the individual is able to do his usual coal mine work or 
comparable and gainful work (see Sec. 410.412(a)(1)).
    (d) Application of presumption on readjudication. Any claim 
initially adjudicated under the rules in this section will, if the claim 
is for any reason thereafter readjudicated, be readjudicated under the 
same rules.
    (e) Failure of miner to qualify under presumption in paragraph (b) 
of this section. Where it is not established on the basis of the 
presumption in paragraph (b) of this section that a miner is (or was) 
totally disabled due to

[[Page 580]]

pneumoconiosis, or was totally disabled due to pneumoconiosis at the 
time of his death, or that his death was due to pneumoconiosis, the 
claimant may nevertheless establish the requisite disability or cause of 
death of the miner under the rules set out in Secs. 410.412 to 410.462.

                          Appendix to Subpart D

    A miner with pneumoconiosis who meets or met one of the following 
sets of medical specifications, may be found to be totally disabled due 
to pneumoconiosis at the pertinent time, in the absence of evidence 
rebutting such finding:
    (1) Arterial oxygen tension at rest (sitting or standing) or during 
exercise and simultaneously determined arterial pco2 
equal to, or less than, the values specified in the following table:

------------------------------------------------------------------------
                                                            Arterial po2
                                                             equal to or
                  Arterial pco2 (mm. Hg)                      less than 
                                                              (mm. Hg)  
------------------------------------------------------------------------
30 or below...............................................            65
31........................................................            64
32........................................................            63
33........................................................            62
34........................................................            61
35........................................................            60
36........................................................            59
37........................................................            58
38........................................................            57
39........................................................            56
40 or above...............................................            55
------------------------------------------------------------------------

or
    (2) Cor pulmonale with right-sided congestive failure as evidenced 
by peripheral edema and liver enlargement, with:
    (A) Right ventricular enlargement or outflow tract prominence on X-
ray or fluoroscopy; or
    (B) ECG showing QRS duration less than 0.12 second and R of 5 mm. or 
more in V1 and R/S of 1.0 or more in V1 and 
transition zone (decreasing R/S) left of V1;
or
    (3) Congestive heart failure with signs of vascular congestion such 
as hepatomegaly or peripheral or pulmonary edema, with:
    (A) Cardio-thoracic ratio of 55 percent or greater, or equivalent 
enlargement of the transverse diameter of the heart, as shown on 
teleroentgenogram (6-foot film); or
    (B) Extension of the cardiac shadow (left ventricle) to the 
vertebral column on lateral chest roentgenogram and total of S in 
V1 or V2 and R in V5 or V6 
of 35 mm. or more on ECG.



                     Subpart E--Payment of Benefits

    Authority:  Secs. 411(a), 412(a) and (b), 413(b), 426(a), and 508 of 
the Federal Coal Mine Health and Safety Act of 1977, as amended (30 
U.S.C. 921(a), 922(a) and (b), 923(b), 936(a), and 957). Section 410.565 
also issued under 31 U.S.C. 952.


    Source:  36 FR 23758, Dec. 14, 1971, unless otherwise noted.



Sec. 410.501  Payment periods.

    Benefits are paid to beneficiaries during entitlement for payment 
periods consisting of full calendar months.



Sec. 410.505  Payees.

    (a) General. Benefits may be paid as appropriate, to a beneficiary 
(see Sec. 410.110(r)), to a qualified dependent (see Sec. 410.511), or 
to a representative payee on behalf of a beneficiary or dependent (see 
Sec. 410.581ff). Also where an amount is payable under part B of title 
IV of the Act for any month to two or more individuals who are members 
of the same family, the Social Security Administration may, in its 
discretion, certify to any two or more of such individuals joint payment 
of the total benefits payable to them for such month.
    (b) Joint payee dies before cashing check. Where a check has been 
issued for joint payment to an individual and spouse residing in the 
same household and one of them dies before the check is cashed, the 
Social Security Administration may give the survivor permission to cash 
the check. The permission is carried out by stamping the face of the 
check. An official of the Social Security Administration or the Treasury 
Disbursing Office must sign and name the survivor as the payee of the 
check (see 31 CFR 360.8). Where the uncashed check is for benefits for a 
month after the month of death, authority to cash the check will not be 
given to the surviving payee unless the funds are needed to meet the 
ordinary and necessary living expenses of the surviving payee.
    (c) Adjustment or recovery of overpayment. Where a check 
representing payment of benefits to an individual and spouse residing in 
the same household is negotiated by the surviving payee in accordance 
with the authorization in paragraph (b) of this section and where

[[Page 581]]

the amount of the check exceeds the amount to which the surviving payee 
is entitled, appropriate adjustment or recovery with respect to such 
excess amount shall be made in accordance with section 204(a) of the Act 
(see subpart F of part 404).

[43 FR 34780, Aug. 7, 1978]



Sec. 410.510  Computation of benefits.

    (a) Basic rate. The benefit amount of each beneficiary entitled to a 
benefit for a month is determined, in the first instance, by computing 
the ``basic rate.'' The basic rate is equal to 50 percent of the minimum 
monthly payment to which a totally disabled Federal employee in Grade 
GS-2 would be entitled for such month under the Federal Employees' 
Compensation Act, chapter 81, title 5 U.S.C. That rate for a month is 
determined by:
    (1) Ascertaining the lowest annual rate of pay (``step 1'') for 
Grade GS-2 of the General Schedule applicable to such month (see 5 
U.S.C. 5332);
    (2) Ascertaining the monthly rate thereof by dividing the amount 
determined in paragraph (a)(1) of this section by 12;
    (3) Ascertaining the minimum monthly payment under the Federal 
Employees' Compensation Act by multiplying the amount determined in 
paragraph (a)(2) of this section by 0.75 (that is, by 75 percent) (see 5 
U.S.C. 8112); and
    (4) Ascertaining the basic rate under the Act by multiplying the 
amount determined in paragraph (a)(3) of this section by 0.50 (that is, 
by 50 percent).
    (b) Basic benefit. When a miner or widow is entitled to benefits for 
a month for which he or she has no dependents who qualify under subpart 
C of this part, and when a surviving child of a miner or widow, or a 
parent, brother, or sister of a miner, is entitled to benefits for a 
month for which he or she is the only beneficiary entitled to benefits, 
the amount of benefits to which such beneficiary is entitled is equal to 
the basic rate as computed in accordance with this section (raised, if 
not a multiple of 10 cents, to the next higher multiple of 10 cents (see 
paragraph (d) of this section)). This amount is referred to as the basic 
benefit.
    (c) Augmented benefit. (1) When a miner or widow is entitled to 
benefits for a month for which he or she has one or more dependents who 
qualify under subpart C of this part, the amount of benefits to which 
such miner or widow is entitled is increased. This increase is referred 
to as an augmentation.
    (2) Any request to the Administration that the benefits of a miner 
or widow be augmented in accordance with this paragraph shall be in 
writing on such form and in accordance with such instructions as are 
prescribed by the Administration. Such request shall be filed with the 
Administration in accordance with those provisions of subpart B of this 
part dealing with the filing of claims as if such request were a claim 
for benefits, and as if such dependent were the beneficiary referred to 
therein. (See Sec. 410.220(f).) Ordinarily, such request is made as part 
of the claim of the miner or widow for benefits.
    (3) The benefits of a miner or widow are augmented to take account 
of a particular dependent beginning with the first month in which such 
dependent satisfies the conditions set forth in subpart C of this part, 
and continues to be augmented through the month before the month in 
which such dependent ceases to satisfy the conditions set forth in 
subpart C of this part, except in the case of a child who qualifies as a 
dependent because he is a student (see Sec. 410.370(c)). In the latter 
case such benefits continue to be augmented through the month before the 
first month during no part of which he qualifies as a student.
    (4) The basic rate is augmented by 50 percent for one such 
dependent, 75 percent for two such dependents, and 100 percent for three 
or more such dependents (see paragraph (d) of this section).
    (d) Benefit rates for miners and widows.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                           October    October    October    January                     
                                                                    Beginning  Beginning   1974 to    1973 to    1972 to    1972 to                     
                                                                     October    October   September  September  September  September    1971     1969-70
                                                                       1976       1975       1975       1974       1973       1972                      
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1) Miner or widow with no dependents.............................    $205.40    $196.80    $187.40    $177.60    $169.80    $161.50   $153.10   $144.50

[[Page 582]]

                                                                                                                                                        
(2) Miner or widow with one dependent.............................     308.10     295.20     281.10     266.40     254.70     242.20    229.60    216.70
(3) Miner or widow with two dependents............................     359.50     344.40     328.00     310.80     297.10     282.60    267.90    252.80
(4) Miner or widow with three or more dependents..................     410.80     393.50     374.80     355.20     339.50     322.90    306.10    288.90
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (e) Survivor benefit. (1) As used in this section, survivor means a 
surviving child of a miner or widow, or, for months beginning May 1972, 
a surviving parent, brother, or sister of a miner, who establishes 
entitlement to benefits under the provisions of subpart B of this part.
    (2) When one survivor is entitled to benefits for a month, his 
benefit is the amount specified in paragraph (d)(1) of this section; 
when two survivors are so entitled, the benefit of each is one-half the 
amount specified in paragraph (d)(2) of this section; when three 
survivors are so entitled, the benefit of each is one-third the amount 
specified in paragraph (d)(3) of this section; when four survivors are 
so entitled, the benefit of each is one-quarter of the amount specified 
in paragraph (d)(4) of this section; and when more than four survivors 
are so entitled, the benefit of each is determined by dividing the 
amount specified in paragraph (d)(4) of this section by the number of 
such survivors.
    (f) Computation and rounding. (1) Any computation prescribed by this 
section is made to the third decimal place.
    (2) Monthly benefits are payable in multiples of 10 cents. 
Therefore, a monthly payment of amounts derived under paragraph (c)(4) 
or (e)(2) of this section which is not a multiple of 10 cents is 
increased to the next higher multiple of 10 cents.
    (3) Since a fraction of a cent is not a multiple of 10 cents, such 
an amount which contains a fraction in the third decimal place is raised 
to the next higher multiple of 10 cents.
    (g) Eligibility based on the coal mine employment of more than one 
miner. Where an individual, for any month, is entitled (and/or qualifies 
as a dependent for purposes of augmentation of benefits) based on the 
disability or death due to pneumoconiosis arising out of the coal mine 
employment of more than one miner, the benefit payable to or on behalf 
of such individual shall be at a rate equal to the highest rate of 
benefits for which entitlement is established by reason of eligibility 
as a beneficiary, or by reason of his or her qualification as a 
dependent for augmentation of benefit purposes.

[37 FR 20646, Sept. 30, 1972, as amended at 39 FR 12098, Apr. 3, 1974; 
39 FR 41977, Dec. 4, 1974; 40 FR 56887, Dec. 5, 1975; 41 FR 53981, Dec. 
10, 1976]



Sec. 410.511  Certification to dependent of augmentation portion of benefit.

    (a) If the benefit of a miner or of a widow is augmented because of 
one or more dependents (see Sec. 410.510(c)), and it appears to the 
Administration that the best interest of such dependent would be served 
thereby, the Administration may certify payment of the amount of such 
augmentation (to the extent attributable to such dependents) (see 
Secs. 410.510(c) and 410.536) to such dependent directly or to a 
representing payee for the use and benefit of such dependent (see 
Sec. 410.581ff).
    (b) Any request to the Administration to certify separate payment of 
the amount of an augmentation in accordance with paragraph (a) of this 
section shall be in writing on such form and in accordance with such 
instructions as are prescribed by the Administration, and shall be filed 
with the Administration in accordance with those provisions of subpart B 
of this part dealing with the filing of claims as if such requests were 
a claim for benefits (see Sec. 410.220(f)).
    (c) In determining whether it is in the best interest of such 
dependent to certify separate payment of the amount of the augmentation 
in benefits attributable to him, the Administration shall apply the 
standards pertaining to representative payment in

[[Page 583]]

Sec. Sec. 410.581 through 410.590, and the instructions issued pursuant 
thereto.
    (d) When the Administration determines (see Sec. 410.610(m)) that 
the amount of a miner's benefit attributable to the miner's wife or 
child should be certified for separate payment to a person other than 
such miner, or that the amount of a widow's benefit attributable to such 
widow's child should be certified for separate payment to a person other 
than the widow, and the miner or widow disagrees with such determination 
and alleges that separate certification is not in the best interest of 
such dependent, the Administration shall reconsider that determination 
(see Secs. 410.622 and 410.623).
    (e) Any payment made under this section, if otherwise valid under 
the Act, is a complete settlement and satisfaction of all claims, 
rights, and interests in and to such payment.

[37 FR 20647, Sept. 30, 1972]



Sec. 410.515  Modification of benefit amounts; general.

    Under certain conditions, the amount of monthly benefits as computed 
in Sec. 410.510 must be modified to determine the amount actually to be 
paid to a beneficiary. A modification of the amount of a monthly benefit 
is required in the following instances:
    (a) Reduction. A reduction from a beneficiary's monthly benefit may 
be required because of:
    (1) In the case of benefits to a miner, parent, brother, or sister, 
the excess earnings from wages and from net earnings from self-
employment (see Sec. 410.530) of such miner, parent, brother, or sister, 
respectively; or
    (2) Failure to report earnings from work in employment and self-
employment within the prescribed period of time (see Sec. 410.530); or
    (3) The receipt by a beneficiary of payments made because of the 
disability of the miner due to pneumoconiosis under State laws relating 
to workmen's compensation (including compensation for occupational 
disease), unemployment compensation, or disability insurance (see 
Sec. 410.520).
    (4) The fact that a claim for benefits from an additional 
beneficiary is filed, or that such a claim is effective for a month 
prior to the month of filing (see Sec. 410.535), or a dependent 
qualifies under subpart C of this part for an augmentation portion of 
the benefit of a miner or widow for a month for which another dependent 
has previously qualified for an augmentation (see Sec. 410.536).
    (b) Adjustment. An adjustment in a beneficiary's monthly benefit may 
be required because an overpayment or underpayment has been made to such 
beneficiary (see Secs. 410.560, 410.570, and 410.580).
    (c) Nonpayment. No benefits under this part are payable to the 
residents of a State which reduces its payments made to beneficiaries 
pursuant to certain State laws (see Sec. 410.550).
    (d) Suspension. A suspension of a beneficiary's monthly benefits may 
be required when the Administration has information indicating that 
reductions on account of the miner's excess earnings (based on criteria 
in section 203(b) of the Social Security Act, 42 U.S.C. 403(b)) may 
reasonably be expected.
    (e) ``Rounding'' of benefit amounts. Monthly benefit rates are 
payable in multiples of 10 cents. Any monthly benefit rate which, after 
all applicable computations, augmentations, and/or reductions is not a 
multiple of 10 cents, is increased to the next higher multiple of 10 
cents. Since a fraction of a cent is not a multiple of 10 cents a 
benefit rate which contains such a fraction in the third decimal is 
raised to the next higher multiple of 10 cents.

[36 FR 23758, Dec. 14, 1971, as amended at 37 FR 20647, Sept. 30, 1972; 
43 FR 34781, Aug. 7, 1978]



Sec. 410.520  Reductions; receipt of State benefit.

    (a) As used in this section, the term State benefit means a payment 
to a beneficiary made because of the disability of the miner due to 
pneumoconiosis under State laws relating to workmen's compensation 
(including compensation for occupational disease), unemployment 
compensation, or disability insurance.
    (b) Benefit payments to a beneficiary for a month are reduced (but 
not below zero) by an amount equal to any payments of State benefits 
received by such beneficiary for such month.

[[Page 584]]

    (c) Where a State benefit is paid periodically but not monthly, or 
in a lump sum as a commutation of or a substitute for periodic benefits, 
the reduction under this section is made at such time or times and in 
such amounts as the Administration determines will approximate as nearly 
as practicable the reduction required under paragraph (b) of this 
section. In making such a determination, a weekly State benefit is 
multiplied by 4\1/3\ and a biweekly benefit is multiplied by 2\1/6\, to 
ascertain the monthly equivalent for reduction purposes.
    (d) Amounts paid or incurred, or to be incurred, by the individual 
for medical, legal, or related expenses in connection with his claim for 
State benefits (defined in paragraph (a) of this section) or the injury 
or occupational disease, if any, on which such award of State benefits 
(or settlement agreement) is based, are excluded in computing the 
reduction under paragraph (b) of this section, to the extent that they 
are consonant with State law. Such medical, legal, or related expenses 
may be evidenced by the State benefit award, compromise agreement, or 
court order in the State benefit proceedings, or by such other evidence 
as the Administration may require. Such other evidence may consist of:
    (1) A detailed statement by the individual's attorney, physician, or 
the employer's insurance carrier; or
    (2) Bills, receipts, or canceled checks; or
    (3) Other clear and convincing evidence indicating the amount of 
such expenses; or
    (4) Any combination of the foregoing evidence from which the amount 
of such expenses may be determinable.

Any expenses not established by evidence required by the Administration 
will not be excluded.

[36 FR 23758, Dec. 14, 1971, as amended at 37 FR 20647, Sept. 30, 1972; 
43 FR 34781, Aug. 7, 1978]



Sec. 410.530  Reductions; excess earnings.

    Benefit payments to a miner, parent, brother, or sister are reduced 
by an amount equal to the deductions which would be made with respect to 
excess earnings under the provisions of section 203 (b), (f), (g), (h), 
(j), and (l) of the Social Security Act (42 U.S.C. 403 (b), (f), (g), 
(h), (j), and (l)), as if such benefit payments were benefits payable 
under section 202 of the Social Security Act (42 U.S.C. 402). (See 
Secs. 404.428 through 404.456 of this chapter.)

[37 FR 20647, Sept. 30, 1972]



Sec. 410.535  Reductions; effect of an additional claim for benefits.

    Beginning with the month in which a person (other than a miner) 
files a claim and becomes entitled to benefits, the benefits of other 
persons entitled to benefits with respect to the same miner, are 
adjusted downward, if necessary, so that no more than the permissible 
amount of benefits (the maximum amount for the number of beneficiaries 
involved) will be paid. Certain claims may also be effective 
retroactively for benefits for months before the month of filing (see 
Sec. 410.226). For any month before the month of filing, however, 
otherwise correct benefits that have been previously certified by the 
Administration for payment to other persons with respect to the same 
miner may not be changed. Rather, the benefits of the person filing a 
claim in the later month is reduced for each month of the retroactive 
period to the extent that may be necessary so that the earlier and 
otherwise correct payment to some other person is not made erroneous. 
That is, for each month of the retroactive period, the amount payable to 
the person filing the later claim is the difference, if any, between (a) 
the total amount of benefits actually certified for payment to other 
persons for that month and (b) the permissible amount of benefits (the 
maximum amount for the number of beneficiaries involved) payable for 
that month to all persons, including the person filing later.

[37 FR 20647, Sept. 30, 1972]



Sec. 410.536  Reductions; effect of augmentation of benefits based on subsequent qualification of individual.

    (a) Ordinarily, a written request that the benefits of a miner or 
widow be augmented on account of a qualified dependent (see 
Sec. 410.510(c)) is made as part of the claim for benefits filed by

[[Page 585]]

such miner or widow. However, it may also be made thereafter.
    (b) In the latter case, beginning with the month in which such a 
request is filed on account of a particular dependent and in which such 
dependent qualifies for augmentation purposes under subpart C of this 
part, the augmented benefits attributable to other qualified dependents 
(with respect to the same miner or widow), if any, are adjusted 
downward, if necessary, so that the permissible amount of augmented 
benefits (the maximum amount for the number of dependents involved) will 
not be exceeded.
    (c) Where, based on the entitlement to benefits of a miner or widow, 
a dependent would have qualified for augmentation purposes for a prior 
month of such miner's or widow's entitlement had such request been filed 
in such prior month, such request is effective for such prior month. For 
any month before the month of filing such request, however, otherwise 
correct benefits previously certified by the Administration may not be 
changed. Rather, the amount of the augmented benefit attributable to the 
dependent filing such request in the later month is reduced for each 
month of the retroactive period to the extent that may be necessary, so 
that no earlier payment for some other dependent is made erroneous. This 
means that for each month of the retroactive period, the amount payable 
to the dependent filing the later augmentation request is the 
difference, if any, between (1) the total amount of augmented benefits 
certified for payment for other dependents for that month, and (2) the 
permissible amount of augmented benefits (the maximum amount for the 
number of dependents involved) payable for that month for all 
dependents, including the dependent filing later.

[37 FR 20647, Sept. 30, 1972]



Sec. 410.540  Reductions; more than one reduction event.

    If a reduction for receipt of State benefits (see Sec. 410.520) and 
a reduction on account of excess earnings (see Sec. 410.530) are 
chargeable to the same month, the benefit for such month is first 
reduced (but not below zero) by the amount of the State benefits (as 
determined in accordance with Sec. 410.520(c)), and the remainder of the 
benefit for such month, if any, is then reduced (but not below zero) by 
the amount of excess earnings chargeable to such month.



Sec. 410.550  Nonpayment of benefits to residents of certain States.

    No benefit shall be paid under this part to the residents of any 
State which, after December 30, 1969, reduces the benefits payable to 
persons eligible to receive benefits under this part, under its State 
laws which are applicable to its general work force with regard to 
workmen's compensation (including compensation for occupational 
disease), unemployment compensation, or disability insurance benefits 
which are funded in whole or in part out of employer contributions.



Sec. 410.560  Overpayments.

    (a) General. As used in this subpart the term overpayment includes a 
payment where no amount is payable under part B of title IV of the Act; 
a payment in excess of the amount due under part B or part C of title IV 
of the Act; a payment resulting from the failure to reduce benefits 
under section 412(b) of the Act (see Secs. 410.520 and 410.530); a 
payment to a resident of a State whose residents are not eligible for 
payment (see Sec. 410.550); a payment of past due benefits to an 
individual where such payment had not been reduced by the amount of 
attorney's fees payable directly to an attorney (see Sec. 410.686(d)); 
and a payment resulting from the failure to terminate benefits of an 
individual no longer entitled thereto. As used in this section, the term 
beneficiary includes a qualified dependent for augmentation purposes and 
the term benefit includes the amount of augmented benefits attributable 
to a particular dependent (see Sec. 410.510(c)).
    (b) Overpaid beneficiary is living. If the beneficiary to whom an 
overpayment was made is, at the time of a determination of such 
overpayment, entitled to benefits, or at any time thereafter becomes so 
entitled, no benefit for any month is payable to such individual, except 
as provided in paragraph (c) of this section, until an amount

[[Page 586]]

equal to the amount of the overpayment has been withheld or refunded.
    (c) Adjustment by withholding part of a monthly benefit. Adjustment 
under paragraph (b) of this section may be effected by withholding a 
part of the monthly benefit payable to a beneficiary where it is 
determined that:
    (1) Withholding the full amount each month would deprive the 
beneficiary of income required for ordinary and necessary living 
expenses;
    (2) The overpayment was not caused by the beneficiary's 
intentionally false statement or representation, or willful concealment 
of, or deliberate failure to furnish, material information; and
    (3) Recoupment can be effected in an amount of not less than $10 a 
month and at a rate which would not extend the period of adjustment 
beyond 3 years after the initiation of the adjustment action.
    (d) Overpaid beneficiary dies before adjustment. If an overpaid 
beneficiary dies before adjustment is completed under the provisions of 
paragraph (b) of this section, the overpayment may be recovered 
through--
    (1) Repayment by the estate of the deceased overpaid beneficiary;
    (2) Withholding benefit amounts due the estate of the deceased 
overpaid beneficiary;
    (3) Withholding benefit amounts due any other individual because of 
the black lung disease of the miner; or
    (4) Any combination of the methods described in this paragraph.

(Sec. 204, Social Security Act, as amended, and sec. 413, Federal Coal 
Mine Health and Safety Act of 1969, as amended; 49 Stat. 624, as amended 
and 83 Stat. 793 (42 U.S.C. 404 and 30 U.S.C. 921, 923))

[36 FR 23758, Dec. 14, 1971, as amended at 46 FR 39588, Aug. 4, 1981; 47 
FR 43674, Oct. 4, 1982]



Sec. 410.561  Notice of right to waiver consideration.

    Whenever an initial determination is made that more than the correct 
amount of payment has been made, and we seek adjustment or recovery of 
the overpayment, the individual from whom we are seeking adjustment or 
recovery is immediately notified. The notice includes:
    (a) The overpayment amount and how and when it occurred;
    (b) A request for full, immediate refund, unless the overpayment can 
be withheld from the next month's benefit;
    (c) The proposed adjustment of benefits if refund is not received 
within 30 days after the date of the notice and adjustment of benefits 
is available;
    (d) An explanation of the availability of a different rate of 
withholding when full withholding is proposed, installment payments when 
refund is requested and adjustment is not currently available, and/or 
cross-program recovery when refund is requested and the individual is 
receiving another type of payment from SSA (language about cross-program 
recovery is not included in notices sent to individuals in jurisdictions 
where this recovery option is not available);
    (e) An explanation of the right to request waiver of adjustment or 
recovery and the automatic scheduling of a file review and pre-
recoupment hearing (commonly referred to as a personal conference) if a 
request for waiver cannot be approved after initial paper review;
    (f) An explanation of the right to request reconsideration of the 
fact and/or amount of the overpayment determination;
    (g) Instructions about the availability of forms for requesting 
reconsideration and waiver;
    (h) An explanation that if the individual does not request waiver or 
reconsideration within 30 days of the date of the overpayment notice, 
adjustment or recovery of the overpayment will begin;
    (i) A statement that an SSA office will help the individual complete 
and submit forms for appeal or waiver requests; and
    (j) A statement that the individual receiving the notice should 
notify SSA promptly if reconsideration, waiver, a lesser rate of 
withholding, repayment by installments or cross-program adjustment is 
wanted.

[61 FR 56132, Oct. 31, 1996]

[[Page 587]]



Sec. 410.561a  When waiver may be applied and how to process the request.

    (a) There shall be no adjustment or recovery in any case where an 
overpayment under part B of title IV of the Act has been made to an 
individual who is without fault if adjustment or recovery would either 
defeat the purpose of title IV of the Act, or be against equity and good 
conscience.
    (b) If an individual requests waiver of adjustment or recovery of an 
overpayment made under Part B of title IV within 30 days after receiving 
a notice of overpayment that contains the information in Sec. 410.561, 
no adjustment or recovery action will be taken until after the initial 
waiver determination is made. If the individual requests waiver more 
than 30 days after receiving the notice of overpayment, SSA will stop 
any adjustment or recovery actions until after the initial waiver 
determination is made.
    (c) When waiver is requested, the individual gives SSA information 
to support his/her contention that he/she is without fault in causing 
the overpayment (see Sec. 410.561b), and that adjustment or recovery 
would either defeat the purposes of this subpart (see Sec. 410.561c) or 
be against equity and good conscience (see Sec. 410.561d). That 
information, along with supporting documentation, is reviewed to 
determine if waiver can be approved. If waiver cannot be approved after 
this review, the individual is notified in writing and given the dates, 
times and place of the file review and personal conference; the 
procedure for reviewing the claims file prior to the personal 
conference; the procedure for seeking a change in the scheduled dates, 
times, and/or place; and all other information necessary to fully inform 
the individual about the personal conference. The file review is always 
scheduled at least 5 days before the personal conference.
    (d) At the file review, the individual and the individual's 
representative have the right to review the claims file and applicable 
law and regulations with the decisionmaker or another SSA representative 
who is prepared to answer questions. We will provide copies of material 
related to the overpayment and/or waiver from the claims file or 
pertinent sections of the law or regulations that are requested by the 
individual or the individual's representative.
    (e) At the personal conference, the individual is given the 
opportunity to:
    (1) Appear personally, testify, cross-examine any witnesses, and 
make arguments;
    (2) Be represented by an attorney or other representative (see 
Sec. 410.684), although the individual must be present at the 
conference; and
    (3) Submit documents for consideration by the decisionmaker.
    (f) At the personal conference, the decisionmaker:
    (1) Tells the individual that the decisionmaker was not previously 
involved in the issue under review, that the waiver decision is solely 
the decisionmaker's, and that the waiver decision is based only on the 
evidence or information presented or reviewed at the conference;
    (2) Ascertains the role and identity of everyone present;
    (3) Indicates whether or not the individual reviewed the claims 
file;
    (4) Explains the provisions of law and regulations applicable to the 
issue;
    (5) Briefly summarizes the evidence already in file which will be 
considered;
    (6) Ascertains from the individual whether the information presented 
is correct and whether he/she fully understands it;
    (7) Allows the individual and the individual's representative, if 
any, to present the individual's case;
    (8) Secures updated financial information and verification, if 
necessary;
    (9) Allows each witness to present information and allows the 
individual and the individual's representative to question each witness;
    (10) Ascertains whether there is any further evidence to be 
presented;
    (11) Reminds the individual of any evidence promised by the 
individual which has not been presented;
    (12) Lets the individual and the individual's representative, if 
any, present any proposed summary or closing statement;
    (13) Explains that a decision will be made and the individual will 
be notified in writing; and

[[Page 588]]

    (14) Explains repayment options and further appeal rights in the 
event the decision is adverse to the individual.
    (g) SSA issues a written decision to the individual (and his/her 
representative, if any) specifying the findings of fact and conclusions 
in support of the decision to approve or deny waiver and advising of the 
individual's right to appeal the decision. If waiver is denied, 
adjustment or recovery of the overpayment begins even if the individual 
appeals.
    (h) If it appears that the waiver cannot be approved, and the 
individual declines a personal conference or fails to appear for a 
second scheduled personal conference, a decision regarding the waiver 
will be made based on the written evidence of record. Reconsideration is 
then the next step in the appeals process (but see Sec. 410.630(c)).

[61 FR 56132, Oct. 31, 1996]



Sec. 410.561b  Fault.

    Fault as used in without fault (see Sec. 410.561a) applies only to 
the individual. Although the Administration may have been at fault in 
making the overpayment, that fact does not relieve the overpaid 
individual or any other individual from whom the Administration seeks to 
recover the overpayment from liability for repayment if such individual 
is not without fault. In determining whether an individual is at fault, 
the Administration will consider all pertinent circumstances, including 
his age, intelligence, education, and physical and mental condition. 
What constitutes fault (except for reduction overpayments (see 
Sec. 410.561e)) on the part of the overpaid individual or on the part of 
any other individual from whom the Administration seeks to recover the 
overpayment depends upon whether the facts show that the incorrect 
payment to the individual resulted from:
    (a) An incorrect statement made by the individual which he knew or 
should have known to be incorrect; or
    (b) Failure to furnish information which he knew or should have 
known to be material; or
    (c) With respect to the overpaid individual only, acceptance of a 
payment which he either knew or could have been expected to know was 
incorrect.

[37 FR 20648, Sept. 30, 1972]



Sec. 410.561c  Defeat the purpose of title IV.

    (a) General. Defeat the purpose of title IV for purposes of this 
subpart, means defeat the purpose of benefits under this title, i.e., to 
deprive a person of income required for ordinary and necessary living 
expenses. This depends upon whether the person has an income or 
financial resources sufficient for more than ordinary and necessary 
needs, or is dependent upon all of his current benefits for such needs. 
An individual's ordinary and necessary expenses include:
    (1) Fixed living expenses, such as food and clothing, rent, mortgage 
payments, utilities, maintenance, insurance (e.g., life, accident, and 
health insurance including premiums for supplementary medical insurance 
benefits under title XVIII of the Social Security Act), taxes, 
installment payments, etc.;
    (2) Medical, hospitalization, and other similar expenses;
    (3) Expenses for the support of others for whom the individual is 
legally responsible; and
    (4) Other miscellaneous expenses which may reasonably be considered 
as part of the individual's standard of living.
    (b) When adjustment or recovery will defeat the purpose of title IV. 
Adjustment or recovery will defeat the purposes of title IV in (but is 
not limited to) situations where the person from whom recovery is sought 
needs substantially all of his current income (including black lung 
benefits) to meet current ordinary and necessary living expenses.

[37 FR 20648, Sept. 30, 1972]



Sec. 410.561d  Against equity and good conscience; defined.

    Against equity and good conscience means that adjustment or recovery 
of an incorrect payment will be considered inequitable if an individual, 
because of a notice that such payment

[[Page 589]]

would be made or by reason of the incorrect payment, relinquished a 
valuable right (example 1); or changed his position for the worse 
(example 2). In reaching such a determination, the individual's 
financial circumstances are irrelevant.
    Example 1.  After being awarded benefits, an individual resigned 
from employment on the assumption he would receive regular monthly 
benefit payments. It was discovered 3 years later than (due to 
Administration error) his award was erroneous because he did not have 
pneumoconiosis. Due to his age, the individual was unable to get his job 
back, and could not get any other employment. In this situation, 
recovery or adjustment of the incorrect payments would be against equity 
and good conscience because the individual gave up a valuable right.
    Example 2.  A widow, having been awarded benefits for herself and 
daughter, entered her daughter in college because the monthly benefits 
made this possible. After the widow and her daughter received payments 
for almost a year, the deceased worker was found not to have had 
pneumoconiosis and all payments to the widow and child were incorrect. 
The widow has no other funds with which to pay the daughter's college 
expenses. Having entered the daughter in college and thus incurred a 
financial obligation toward which the benefits had been applied, she was 
in a worse position financially than if she and her daughter had never 
been entitled to benefits. In this situation, the recovery of the 
incorrect payments would be inequitable.

[37 FR 20648, Sept. 30, 1972]



Sec. 410.561e  When an individual is ``without fault'' in a reduction-overpayment.

    Except as provided in Sec. 410.561g, or elsewhere in this subpart, 
an individual will be considered without fault in accepting a payment 
which is incorrect because he failed to report an event relating to 
excess earnings specified in section 203(b) of the Social Security Act, 
or which is incorrect because a reduction in his benefits equal to the 
amount of a deduction required under section 203(b) of the Social 
Security Act is necessary (see Sec. 410.530), if it is shown that such 
failure to report or such acceptance of the overpayment was due to one 
of the following circumstances:
    (a) Reasonable belief that only his net cash earnings (``take-home'' 
pay) are included in determining the annual earnings limitation or the 
monthly earnings limitation under section 203(f) of the Social Security 
Act (see Sec. 410.530).
    (b) Reliance upon erroneous information from an official source 
within the Social Security Administration (or other governmental agency 
which the individual had reasonable cause to believe was connected with 
the administration of benefits under part B of title IV of the Act) with 
respect to the interpretation of a pertinent provision of the Act or 
regulations pertaining thereto. For example, this circumstance could 
occur where the individual is misinformed by such source as to the 
interpretation of a provision in the Act or regulations relating to 
reductions.
    (c) The beneficiary's death caused the earnings limit applicable to 
his earnings for purposes of reduction and the charging of excess 
earnings to be reduced below $1,680 for a taxable year.
    (d) Reasonable belief that in determining, for reduction purposes, 
his earnings from employment and/or net earnings from self-employment in 
the taxable year in which he became entitled to benefits, earnings in 
such year prior to such entitlement would be excluded. However, this 
provision does not apply if his earnings in the taxable year, beginning 
with the first month of entitlement, exceeded the earnings limitation 
amount for such year.
    (e) Unawareness that his earnings were in excess of the earnings 
limitation applicable to the imposition of reductions and the charging 
of excess earnings or that he should have reported such excess where 
these earnings were greater than anticipated because of:
    (1) Retroactive increases in pay, including backpay awards;
    (2) Work at a higher pay rate than realized;
    (3) Failure of the employer of an individual unable to keep accurate 
records to restrict the amount of earnings or the number of hours worked 
in accordance with a previous agreement with such individual;
    (4) The occurrence of five Saturdays (or other workdays, e.g., five 
Mondays) in a month and the earnings for the services on the fifth 
Saturday or other workday caused the reductions.

[[Page 590]]

    (f) The continued issuance of benefit checks to him after he sent 
notice to the Administration of the event which caused or should have 
caused the reductions provided that such continued issuance of checks 
led him to believe in good faith that he was entitled to checks 
subsequently received.
    (g) Lack of knowledge that bonuses, vacation pay, or similar 
payments, constitute earnings for purposes of the annual earnings 
limitation.
    (h) Reasonable belief that earnings in excess of the earnings 
limitation amount for the taxable year would subject him to reductions 
only for months beginning with the first month in which his earnings 
exceeded the earnings limitation amount. However, this provision is 
applicable only if he reported timely to the Administration during the 
taxable year when his earnings reached the applicable limitation amount 
for such year.
    (i) Reasonable belief that earnings from employment and/or net 
earnings from self-employment after the attainment of age 72 in the 
taxable year in which he attained age 72 would not cause reductions with 
respect to benefits payable for months in that taxable year prior to the 
attainment of age 72.
    (j) Reasonable belief by an individual entitled to benefits that 
earnings from employment and/or net earnings from self-employment after 
the termination of entitlement in the taxable year in which the 
termination event occurred would not cause reductions with respect to 
benefits payable for months in that taxable year prior to the month in 
which the termination event occurred.
    (k) Failure to understand the deduction provisions of the Social 
Security Act or the occurrence of unusual or unavoidable circumstances 
the nature of which clearly shows that the individual was unaware of a 
violation of such reduction provisions. However, these provisions do not 
apply unless he made a bona fide attempt to restrict his annual earnings 
or otherwise comply with the reduction provisions of the Act.

[37 FR 20648, Sept. 30, 1972]



Sec. 410.561f  When an individual is ``without fault'' in an entitlement overpayment.

    A benefit payment under part B of title IV of the Act to or on 
behalf of an individual who fails to meet one or more requirements for 
entitlement to such payment or the payment exceeds the amount to which 
he is entitled, constitutes an entitlement overpayment. Where an 
individual or other person on behalf of an individual accepts such 
overpayment because of reliance on erroneous information from an 
official source within the Administration (or other governmental agency 
which the individual had reasonable cause to believe was connected with 
the administration of benefits under part B of title IV of the Act) with 
respect to the interpretation of a pertinent provision of the Act or 
regulations pertaining thereto, such individual, in accepting such 
overpayment, will be deemed to be without fault.

[37 FR 20649, Sept. 30, 1972]



Sec. 410.561g  When an individual is at ``fault'' in a reduction-overpayment.

    (a) Degree of care. An individual will not be without fault if the 
Administration has evidence in its possession which shows either a lack 
of good faith or failure to exercise a high degree of care in 
determining whether circumstances which may cause reductions from his 
benefits should be brought to the attention of the Administration by an 
immediate report or by return of a benefit check. The high degree of 
care expected of an individual may vary with the complexity of the 
circumstances giving rise to the overpayment and the capacity of the 
particular payee to realize that he is being overpaid. Accordingly, 
variances in the personal circumstances and situations of individual 
payees are to be considered in determining whether the necessary degree 
of care has been exercised by an individual to warrant a finding that he 
was without fault in accepting a ``reduction-overpayment.''
    (b) Subsequent reduction-overpayments. An individual will not be 
without fault where, after having been exonerated for a ``reduction-
overpayment'' and after having been advised of the correct 
interpretation of the reduction provision,

[[Page 591]]

he incurs another ``reduction-overpayment'' under the same circumstances 
as the first overpayment.

[37 FR 20649, Sept. 30, 1972]



Sec. 410.561h  When adjustment or recovery of an overpayment will be waived.

    (a) Adjustment or recovery deemed ``against equity and good 
conscience.'' In the situations described in Secs. 410.561e (a), (b), 
and (c), and 410.561f, adjustment or recovery will be waived since it 
will be deemed such adjustment or recovery is ``against equity and good 
conscience.'' Adjustment or recovery will also be deemed ``against 
equity and good conscience'' in the situation described in 
Sec. 410.561e(d), but only as to a month in which the individual's 
earnings from wages do not exceed the total monthly benefits affected 
for that month.
    (b) Adjustment or recovery considered to ``defeat the purpose of 
title IV'' or be ``against equity and good conscience'' under certain 
circumstances. In the situation described in Sec. 410.561e(d) (except in 
the case of an individual whose monthly earnings from wages in 
employment do not exceed the total monthly benefits affected for a 
particular month), and in the situations described in Sec. 410.561e (e) 
through (k), adjustment or recovery shall be waived only where the 
evidence establishes that adjustment or recovery would work a financial 
hardship (see Sec. 410.561c) or would otherwise be inequitable (see 
Sec. 410.561d).

[37 FR 20649, Sept. 30, 1972]



Sec. 410.563  Liability of a certifying officer.

    No certifying or disbursing officer shall be held liable for any 
amount certified or paid by him to any individual:
    (a) Where adjustment or recovery of such amount is waived under 
section 204(b) of the Social Security Act; or
    (b) Where adjustment under section 204(a) of the Social Security Act 
is not completed prior to the death of all individuals against whose 
benefits or lump sums reductions are authorized; or
    (c) Where a claim for recovery of an overpayment is compromised or 
collection or adjustment action is suspended or terminated pursuant to 
the Federal Claims Collection Act of 1966 (31 U.S.C. 951-953) (see 
Sec. 410.565).

[37 FR 20649, Sept. 30, 1972]



Sec. 410.565  Collection and compromise of claims for overpayment.

    (a) General effect of the Federal Claims Collection Act of 1966. 
Claims by the Administration against an individual for recovery of 
overpayments under part B of title IV of the Act, not exceeding the sum 
of $20,000, exclusive of interest, may be compromised, or collection 
suspended or terminated where such individual or his estate does not 
have the present or prospective ability to pay the full amount of the 
claim within a reasonable time (see paragraph (c) of this section) or 
the cost of collection is likely to exceed the amount of recovery (see 
paragraph (d) of this section) except as provided under paragraph (b) of 
this section.
    (b) When there will be no compromise, suspension or termination of 
collection of a claim for overpayment--(1) Overpaid individual alive. In 
any case where the overpaid individual is alive, a claim for overpayment 
will not be compromised, nor will there be suspension or termination of 
collection of the claim by the Administration if there is an indication 
of fraud, the filing of a false claim, or misrepresentation on the part 
of such individual or on the part of any other party having an interest 
in the claim.
    (2) Overpaid individual deceased. In any case where the overpaid 
individual is deceased (i) a claim for overpayment in excess of $5,000 
will not be compromised, nor will there be suspension or termination of 
collection of the claim by the Administration if there is an indication 
of fraud: The filing of a false claim, or misrepresentation on the part 
of such deceased individual, and (ii) a claim for overpayment regardless 
of the amount will not be compromised, nor will there be suspension or 
termination of collection of the claim by the Administration if there is 
an indication that any person other than the deceased overpaid 
individual had a part in the fraudulent action which resulted in the 
overpayment.

[[Page 592]]

    (c) Inability to pay claim for recovery of overpayment. In 
determining whether the overpaid individual is unable to pay a claim for 
recovery of an overpayment under part B of title IV of the Act, the 
Administration will consider such individual's age, health, present and 
potential income (including inheritance prospects), assets (e.g., real 
property, savings account), possible concealment or improper transfer of 
assets, and assets or income of such individual which may be available 
in enforced collection proceedings. The Administration will also 
consider exemptions available to such individual under the pertinent 
State or Federal law in such proceedings. In the event the overpaid 
individual is deceased, the Administration will consider the available 
assets of the estate, taking into account any liens or superior claims 
against the estate.
    (d) Cost of collection or litigative probabilities. Where the 
probable costs of recovering an overpayment under part B of title IV of 
the Act would not justify enforced collection proceedings for the full 
amount of the claim or there is doubt concerning the Administration's 
ability to establish its claim as well as the time which it will take to 
effect such collection, a compromise or settlement for less than the 
full amount will be considered.
    (e) Amount of compromise. The amount to be accepted in compromise of 
a claim for overpayment under part B of title IV of the Act shall bear a 
reasonable relationship to the amount which can be recovered by enforced 
collection proceedings giving due consideration to the exemptions 
available to the overpaid individual under State or Federal law and the 
time which such collection will take.
    (f) Payment. Payment of the amount which the Administration has 
agreed to accept as a compromise in full settlement of a claim for 
recovery of an overpayment under part B of title IV of the Act must be 
made within the time and in the manner set by the Administration. A 
claim for such recovery of the overpayment shall not be considered 
compromised or settled until the full payment of the compromised amount 
has been made within the time and manner set by the Administration. 
Failure of the overpaid individual or his estate to make such payment as 
provided shall result in reinstatement of the full amount of the 
overpayment less any amounts paid prior to such default.



Sec. 410.570  Underpayments.

    (a) General. As used in this subpart, the term underpayment includes 
a payment in an amount less than the amount of the benefit due for such 
month, and nonpayment where some amount of such benefits are payable.
    (b) Underpaid individual is living. If an individual to whom an 
underpayment is due is living, the amount of such underpayment will be 
paid to such individual either in a single payment (if he is not 
entitled to a monthly benefit) or by increasing one or more monthly 
benefit payments to which such individual is or becomes entitled.
    (c) Underpaid individual dies before adjustment of underpayment. If 
an individual to whom an underpayment is due dies before receiving 
payment or negotiating a check or checks representing such payment, such 
underpayment will be distributed to the living person (or persons) in 
the highest order of priority as follows:
    (1) The deceased individual's surviving spouse who was either:
    (i) Living in the same household (as defined in Sec. 410.393) with 
the deceased individual at the time of such individual's death, or
    (ii) In the case of a deceased miner, entitled for the month of 
death to widow's black lung benefits.
    (2) In the case of a deceased miner or widow, his or her child 
entitled to benefits as the surviving child of such miner or widow for 
the month in which such miner or widow died (if more than one such 
child, in equal shares to each such child). As used in this 
subparagraph, ``entitled to benefits as a surviving child'' refers to 
the benefit described in Sec. 410.212, and not to the payment described 
in Sec. 410.510(c).
    (3) In the case of a deceased miner, his parent entitled to benefits 
as the surviving parent of such miner for the month in which such miner 
died (if more than one such parent, in equal shares to each such 
parent).

[[Page 593]]

    (4) The surviving spouse of the deceased individual who does not 
qualify under paragraph (c)(1) of this section.
    (5) The child or children of the deceased individual who do not 
qualify under paragraph (c)(2) of this section (if more than one such 
child, in equal shares to each such child).
    (6) The parent or parents of the deceased individual who do not 
qualify under paragraph (c)(3) of this section (if more than one such 
parent, in equal shares to each such parent).
    (7) The legal representative of the estate of the deceased 
individual as defined in paragraph (e) of this section.
    (d) Person qualified to receive underpayment dies before receiving 
payment. In the event that a person who is otherwise qualified to 
receive an underpayment under the provisions of paragraph (c) of this 
section, dies before receiving payment or before negotiating the check 
or checks representing such payment, his share of the underpayment will 
be divided among the remaining living person(s) in the same order of 
priority. In the event that there is (are) no other such person(s), the 
underpayment will be paid to the living person(s) in the next lower 
order of priority under paragraph (c) of this section.
    (e) Definition of legal representative. The term legal 
representative, for the purpose of qualifying to receive an 
underpayment, generally means the executor or the administrator of the 
estate of the deceased beneficiary. However, it may also include an 
individual, institution, or organization acting on behalf of an 
unadministered estate: Provided, The person can give the Administration 
good acquittance (as defined in paragraph (f) of this section). The 
following persons may qualify as legal representative for purposes of 
this section, provided they can give the Administration good 
acquittance:
    (1) A person who qualifies under a State's ``small estate'' statute; 
or
    (2) A person resident in a foreign country who, under the laws and 
customs of that country, has the right to receive assets of the estate; 
or
    (3) A public administrator; or
    (4) A person who has the authority, under applicable law, to collect 
the assets of the estate of the deceased beneficiary.
    (f) Definition of good acquittance. A person is considered to give 
the Administration good acquittance when payment to that person will 
release the Administration from further liability for such payment.

[36 FR 23758, Dec. 14, 1971, as amended at 37 FR 20650, Sept. 30, 1972]



Sec. 410.580  Relation to provisions for reductions or increases.

    The amount of an overpayment or underpayment is the difference 
between the amount actually paid to the beneficiary and the amount of 
the payment to which the beneficiary was actually entitled. Such 
overpayment or underpayment, for example, would be equal to the 
difference between the amount of a benefit in fact paid to the 
beneficiary and the amount of such benefit as reduced under section 
412(b) of the Act, as increased pursuant to section 412(a)(1), or as 
augmented under section 412(a)(3), of the Act. In effecting an 
adjustment with respect to an overpayment, no amount can be considered 
as having been withheld from a particular benefit which is in excess of 
the amount of such benefit as so reduced. Overpayments and underpayments 
simultaneously outstanding on account of the same beneficiary are first 
adjusted against one another before adjustment pursuant to the other 
provisions of this subpart.



Sec. 410.581  Payments on behalf of an individual.

    When it appears to the Administration that the interest of a 
beneficiary entitled to a payment under part B of title IV of the Act 
would be served thereby, certification of payment may be made by the 
Administration, regardless of the legal competency or incompetency of 
the beneficiary entitled thereto, either for direct payment to such 
beneficiary, or for his use and benefit to a relative or some other 
person as the ``representative payee'' of the beneficiary. When it 
appears that an individual who is receiving benefit payments may be 
incapable of managing such payments in his own interest, the 
Administration shall, if such individual is age 18 or over and has not

[[Page 594]]

been adjudged legally incompetent, continue payments to such individual 
pending a determination as to his capacity to manage benefit payments 
and the selection of a representative payee. As used in Secs. 410.581 
through 410.590, the term beneficiary includes the dependent of a miner 
or widow who could qualify for certification of separate payment of an 
augmentation portion of such miner's or widow's benefits (see 
Secs. 410.510(c) and 410.511).

[37 FR 20650, Sept. 30, 1972]



Sec. 410.582  Submission of evidence by representative payee.

    Before any amount shall be certified for payment to any relative or 
other person as representative payee for and on behalf of a beneficiary, 
such relative or other person shall submit to the Administration such 
evidence as it may require of his relationship to, or his responsibility 
for the care of, the beneficiary on whose behalf payment is to be made, 
or of his authority to receive such payment. The Administration may, at 
any time thereafter, require evidence of the continued existence of such 
relationship, responsibility, or authority. If any such relative or 
other person fails to submit the required evidence within a reasonable 
period of time after it is requested, no further payments shall be 
certified to him on behalf of the beneficiary unless for good cause 
shown, the default of such relative or other person is excused by the 
Administration, and the required evidence is thereafter submitted.

[37 FR 20650, Sept. 30, 1972]



Sec. 410.583  Responsibility of representative payee.

    A relative or other person to whom certification of payment is made 
on behalf of a beneficiary as representative payee shall, subject to 
review by the Administration and to such requirements as it may from 
time to time prescribe, apply the payments certified to him on behalf of 
a beneficiary only for the use and benefit of such beneficiary in the 
manner and for the purposes determined by him to be in the beneficiary's 
best interest.

[37 FR 20650, Sept. 30, 1972]



Sec. 410.584  Use of benefits for current maintenance.

    Payments certified to a relative or other person on behalf of a 
beneficiary shall be considered as having been applied for the use and 
benefit of the beneficiary when they are used for the beneficiary's 
current maintenance. Where a beneficiary is receiving care in an 
institution (see Sec. 410.586), current maintenance shall include the 
customary charges made by the institution to individuals it provides 
with care and services like those it provides the beneficiary and 
charges made for current and foreseeable needs of the beneficiary which 
are not met by the institution.

[37 FR 20650, Sept. 30, 1972]



Sec. 410.585  Conservation and investment of payments.

    Payments certified to a relative or other person on behalf of a 
beneficiary which are not needed for the current maintenance of the 
beneficiary except as they may be used pursuant to Sec. 410.587, shall 
be conserved or invested on the beneficiary's behalf. Preferred 
investments are U.S. Savings Bonds, but such funds may also be invested 
in accordance with the rules applicable to investment of trust estates 
by trustees. For example, surplus funds may be deposited in an interest- 
or dividend-bearing account in a bank or trust company, in a savings and 
loan association, or in a credit union, if the account is either 
federally insured or is otherwise insured in accordance with State law 
requirements. Surplus funds deposited in an interest- or dividend-
bearing account in a bank or trust company, in a savings and loan 
association, or in a credit union, must be in a form of account which 
clearly shows that the representative payee has only a fiduciary, and 
not a personal, interest in the funds. The preferred forms of such 
accounts are as follows:

------------------------ (Name of beneficiary) by ----------------------
--, (Name of representative payee) representative payee; or ------------
------------ (Name of beneficiary) by ------------------------, (Name of 
representative payee) trustee.

[[Page 595]]

    U.S. Savings Bonds purchased with surplus funds by a representative 
payee for a minor should be registered as follows:
------------------------ (Name of beneficiary) -------------------- 
(Social Security No.), a minor, for whom -------------------- (Name of 
payee) is representative payee for black lung benefits.
    U.S. Savings Bonds purchased with surplus funds by a representative 
payee for an incapacitated adult beneficiary should be registered as 
follows:
------------------------, (Name of beneficiary) -------------------- 
(Social Security No.), for whom -------------------- (Name of payee) is 
representative payee for black lung benefits.


A representative payee who is the legally appointed guardian or 
fiduciary of the beneficiary may also register U.S. Savings Bonds 
purchased with funds from the payment of benefits under part B of title 
IV in accordance with applicable regulations of the U.S. Treasury 
Department (31 CFR 315.5 through 315.8). Any other approved investment 
of the beneficiary's funds made by the representative payee must clearly 
show that the payee holds the property in trust for the beneficiary.

[41 FR 17892, Apr. 29, 1976]



Sec. 410.586  Use of benefits for beneficiary in institution.

    Where a beneficiary is confined in a Federal, State, or private 
institution because of mental or physical incapacity, the relative or 
other person to whom payments are certified on behalf of the beneficiary 
shall give highest priority to expenditure of the payments for the 
current maintenance needs of the beneficiary, including the customary 
charges made by the institution (see Sec. 410.584) in providing care and 
maintenance. It is considered in the best interest of the beneficiary 
for the relative or other person to whom payments are certified on the 
beneficiary's behalf to allocate expenditure of the payments so 
certified in a manner which will facilitate the beneficiary's earliest 
possible rehabilitation or release from the institution or which 
otherwise will help him live as normal a life as practicable in the 
institutional environment.

[37 FR 20651, Sept. 30, 1972]



Sec. 410.587  Support of legally dependent spouse, child, or parent.

    If current maintenance needs of a beneficiary are being reasonably 
met, a relative or other person to whom payments are certified as 
representative payee on behalf of the beneficiary may use part of the 
payment so certified for the support of the legally dependent spouse, a 
legally dependent child, or a legally dependent parent of the 
beneficiary.

[37 FR 20651, Sept. 30, 1972]



Sec. 410.588  Claims of creditors.

    A relative or other person to whom payments under part B of title IV 
of the Act are certified as representative payee on behalf of a 
beneficiary may not be required to use such payments to discharge an 
indebtedness of the beneficiary which was incurred before the first 
month for which payments are certified to a relative or other person on 
the beneficiary's behalf. In no case, however, may such payee use such 
payments to discharge such indebtedness of the beneficiary unless the 
current and reasonably foreseeable future needs of the beneficiary are 
otherwise provided for.

[37 FR 20651, Sept. 30, 1972]



Sec. 410.589  Accountability.

    A relative or other person to whom payments are certified as 
representative payee on behalf of a beneficiary shall submit a written 
report in such form and at such times as the Administration may require, 
accounting for the payments certified to him on behalf of the 
beneficiary unless such payee is a court-appointed fiduciary and, as 
such, is required to make an annual accounting to the court, in which 
case a true copy of each such account filed with the court may be 
submitted in lieu of the accounting form prescribed by the 
Administration. If any such relative or other person fails to submit the 
required accounting within a reasonable period of time after it is 
requested, no further payments shall be certified to him on behalf of 
the beneficiary unless for good cause shown, the default of such 
relative or other person is excused

[[Page 596]]

by the Administration, and the required accounting is thereafter 
submitted.

[37 FR 20651, Sept. 30, 1972]



Sec. 410.590  Transfer of accumulated benefit payments.

    A representative payee who has conserved or invested funds from 
payments under part B of title IV of the Act certified to him on behalf 
of a beneficiary shall, upon direction of the Administration, transfer 
any such funds (including interest earned from investment of such funds) 
to a successor payee appointed by the Administration, or, at the option 
of the Administration, shall transfer such funds, including interest, to 
the Administration for recertification to a successor payee or to the 
beneficiary.

[37 FR 20651, Sept. 30, 1972]



Sec. 410.591  Eligibility for services and supplies under part C of title IV of the act.

    The Social Security Administration will notify each miner entitled 
to benefits on the basis of a claim filed under part B of the title IV 
of the Act of his or her possible eligibility for medical services and 
supplies under part C of title IV of the Act. Application for medical 
benefits under part C will not jeopardize a person's eligibility for 
part B benefits, regardless of the outcome of the claim for part C 
benefits. The DOL regulations covering the time period in which the 
miner must file with DOL for these benefits are published at 20 CFR part 
725.

(Sec. 411, Federal Coal Mine Health and Safety Act of 1969, as amended; 
85 Stat. 793, 30 U.S.C. 921)

[43 FR 34781, Aug. 7, 1978]



     Subpart F--Determinations of Disability, Other Determinations, 
  Administrative Review, Finality of Decisions, and Representation of 
                                 Parties

    Authority:  Secs. 413(b), 426(a), 507, and 508 of the Federal Coal 
Mine Health and Safety Act of 1977, as amended (30 U.S.C. 923(b), 
936(a), 956, and 957).

    Source:  36 FR 23760, Dec. 14, 1971, unless otherwise noted.



Sec. 410.601  Determinations of disability.

    (a) By State agencies. In any State which has entered into an 
agreement with the Secretary providing therefor, determinations as to 
whether a miner is under a total disability (as defined in Sec. 410.402) 
due to pneumoconiosis (as defined in Sec. 410.110(o)), as to the date 
total disability began, and as to the date total disability ceases, 
shall be made by the State agency or agencies designated in such 
agreement on behalf of the Secretary with respect to all individuals in 
such State, or with respect to such class or classes of individuals in 
the State as may be designated in the agreement.
    (b) By the Administration. Determinations as to whether a miner is 
under a total disability (as defined in Sec. 410.402), due to 
pneumoconiosis (as defined in Sec. 410.110(o)), as to the date the total 
disability began, and as to the date total disability ceases, shall be 
made by the Administration on behalf of the Secretary with respect to 
individuals in any State which has not entered into an agreement to make 
such determinations, or with respect to any class or classes of 
individuals to which such an agreement is not applicable, or with 
respect to any individuals outside the United States. In addition, all 
other determinations as to entitlement to and the amounts of benefits 
shall be made by the Administration on behalf of the Secretary.
    (c) Review by Administration of State agency determinations. The 
Administration may review a determination made by a State agency that a 
miner is under a total disability and, as a result of such review, may 
determine that such individual is not under a total disability, or that 
the total disability began on a date later than that determined by the 
State agency, or that the total disability ceased on a date earlier than 
that determined by the State agency.
    (d) Initial determinations as to entitlement or termination of 
entitlement. After any determination as to whether an individual is 
under a total disability or has ceased to be under a total disability, 
the Administration shall make an initial determination (see 
Sec. 410.610) with respect to entitlement to benefits.

[[Page 597]]

    (e) Simultaneous claims. The adjudication of any claim under this 
part shall not be delayed for the adjudication of any other benefit 
claim by the same individual pending before the Administration.

[36 FR 23760, Dec. 14, 1971, as amended at 37 FR 20651, Sept. 30, 1972]



Sec. 410.610  Administrative actions that are initial determinations.

    (a) Entitlement to benefits. The Administration, subject to the 
limitations of a Federal-State agreement pursuant to section 413(b) of 
the Act (see Sec. 410.601 (a)), shall make findings, setting forth the 
pertinent facts and conclusions, and an initial determination with 
respect to entitlement to benefits of any individual who has filed a 
claim for benefits. The determination shall include the amount, if any, 
to which the individual is entitled and, where applicable, such amount 
as reduced (see Sec. 410.515), augmented or otherwise increased (see 
Sec. 410.510).
    (b) Modification of the amount of benefits. The Administration 
shall, under the circumstances hereafter stated in this paragraph, make 
findings, setting forth the pertinent facts and conclusions, and an 
initial determination as to whether:
    (1) There should be a reduction under section 412(b) (or section 
412(a)(5)) of the Act, and if a reduction is to be made, the amount 
thereof (see Sec. 410.515(a)); or
    (2) There has been an overpayment (see Sec. 410.560) or an 
underpayment (see Sec. 410.570) of benefits and, if so, the amount 
thereof, and the adjustment to be made by increasing or decreasing the 
monthly benefits to which a beneficiary is entitled (see 
Sec. 410.515(b)), and, in the case of an underpayment due a deceased 
beneficiary, the person to whom the underpayment should be paid.
    (c) Termination of benefits. The Administration, subject to the 
limitations of a Federal-State agreement pursuant to section 413(b) of 
the Act (see Sec. 410.601 (a)), shall, with respect to a beneficiary who 
has been determined to be entitled to benefits, make findings, setting 
forth the pertinent facts and conclusions, and an initial determination 
as to whether, under the applicable provisions of part B of title IV of 
the Act, such beneficiary's entitlement to benefits has ended and, if 
so, the effective date of such termination.
    (d) Reinstatement of benefits. The Administration shall, with 
respect to a beneficiary whose benefits have been determined to have 
ended under paragraph (c) of this section, make findings, setting forth 
the pertinent facts and conclusions, and an initial determination as to 
whether the individual is entitled to a reinstatement of benefits thus 
ended, and if so, the effective date of such reinstatement. Such 
findings of fact and determination shall be made whenever a party makes 
a written request for reinstatement or whenever evidence is received 
which justifies such reinstatement (see for example Secs. 410.671 
through 410.673).
    (e) Augmentation of benefits. The Administration shall make 
findings, setting forth the pertinent facts and conclusions, and an 
initial determination, as to whether a beneficiary has or continues to 
have dependents who, at the appropriate time, qualify under the 
relationship, dependency, and other applicable requirements of subpart C 
of this part, for purposes of entitling such beneficiary to an 
augmentation of his benefits pursuant to Sec. 410.510(b).
    (f) Other increases in benefit amounts. The Administration shall 
make findings, setting forth the pertinent facts and conclusions, and an 
initial determination, as to whether a beneficiary is entitled to an 
increase in benefits (other than an augmentation) pursuant to section 
412(a) of the Act.
    (g) Applicant's failure to submit evidence. If an individual fails 
to submit in support of his claim for benefits or request for 
augmentation or other increase of benefits, such evidence as may be 
requested by the Administration pursuant to Sec. 410.240 or any 
provision of the Act, the Administration may make an initial 
determination disallowing the individual's claim or his request for such 
augmentation or other increase. The initial determination, however, 
shall specify the conditions of entitlement to benefits or to an 
augmentation or other increase of benefits that the individual has 
failed

[[Page 598]]

to satisfy because of his failure to submit the requested evidence (see 
Sec. 410.240).
    (h) Failure to file or prosecute claim under applicable State 
workmen's compensation law. The Administration shall make findings, 
setting forth the pertinent facts and conclusions, and an initial 
determination, as to whether an individual has failed to file or to 
prosecute a claim under the applicable State workmen's compensation law 
pursuant to Sec. 410.219.
    (i) Withdrawal of claim or cancellation of withdrawal request. When 
a request for withdrawal of a claim, or a request for cancellation of a 
``request for withdrawal'' of a claim, is denied by the Administration, 
the Administration shall make findings setting forth the pertinent facts 
and conclusions and an initial determination of denial.
    (j) Request for reimbursement for medical expenses--amount in 
controversy $100 or more. The Administration shall, with respect to a 
claimant who requests reimbursement for medical expenses (see 
Sec. 410.240(h)), make findings, setting forth the pertinent facts and 
conclusions and, where the amount in controversy is $100 or more, an 
initial determination as to whether and the extent to which the expenses 
for which the reimbursement request is made are medical expenses 
reasonably incurred by the claimant in establishing his claim. (Also see 
Sec. 410.615(e).)
    (k) Waiver of adjustment or recovery of monthly benefits. The 
Administration shall make findings, setting forth the pertinent facts 
and conclusions, and an initial determination as to whether there shall 
be no adjustment or recovery where an overpayment with respect to an 
individual has been made (see Sec. 410.561).
    (l) Need for representative payment. The Social Security 
Administration shall make findings, setting forth the pertinent facts 
and conclusions and an initial determination in accordance with section 
205(j) of the Social Security Act (42 U.S.C. 405(j)), as to:
    (1) Whether representative payment shall serve the interests of an 
individual by reason of his incapacity to manage his benefit payments 
(see Sec. 410.581) except that findings as to incapacity with respect to 
an individual under age 18 or with respect to an individual adjudged 
legally incompetent shall not be considered initial determinations; and,
    (2) Who shall be appointed or continued as representative payee on 
behalf of a beneficiary under this part.
    (m) Separate certification of payment to dependent. Where the 
benefit of a miner or of a widow is increased (``augmented'') because he 
or she has a qualified dependent (see Sec. 410.510(c)), and it appears 
to the Administration that it would be in the best interest of any such 
dependent to have the amount of the augmentation (to the extent 
attributable to such dependent) certified separately to such dependent 
(see Sec. 410.511(a)) or to a representative payee on his behalf (see 
Sec. 410.581), the Administration shall make findings, setting forth the 
pertinent facts and conclusions, and an initial determination, as to 
whether separate payment of an augmented amount should be certified (see 
Sec. 410.511(a)).
    (n) Support of parent, brother, or sister. The Administration shall 
make findings, setting forth the pertinent facts and conclusions, and an 
initial determination, as to whether a parent, brother, or sister, meets 
the requirements for support from the miner set forth in the pertinent 
provisions of section 412(a)(5) of the Act and whether proof of support 
was submitted to the Administration within the time limits set forth in 
the Act or under the provisions described in Sec. 410.214(d).

[36 FR 23760, Dec. 14, 1971, as amended at 37 FR 20651, Sept. 30, 1972; 
41 FR 30114, July 22, 1976]



Sec. 410.615  Administrative actions that are not initial determinations.

    Administrative actions which shall not be considered initial 
determinations, but which may receive administrative review include, but 
are not limited to, the following:
    (a) The suspension of benefits pursuant to the criteria in section 
203(h)(3) of the Social Security Act (42 U.S.C. 403 (h)(3)), pending 
investigation and determination of any factual issue as to the 
applicability of a reduction under section 412(b) of the Act equivalent 
to the amount of a deduction because of excess earnings under section 
203(b) of the Social Security Act (42

[[Page 599]]

U.S.C. 403(b)) (see Secs. 410.515(d) and 410.530).
    (b) The denial of an application to be made representative payee for 
and on behalf of a beneficiary under part B of title IV of the Act (see 
Sec. 410.581).
    (c) The certification of any two or more individuals of the same 
family for joint payment of the total benefits payable to such 
individuals (see Sec. 410.505).
    (d) The withholding by the Administration in any month, for the 
purpose of recovering an overpayment, of less than the full amount of 
benefits otherwise payable in that month (see Sec. 410.560(c)).
    (e) The authorization approving or regulating the amount of the fee 
that may be charged or received by a representative for services before 
the Administration (see Sec. 410.686b(e)).
    (f) The disqualification or suspension of an individual from acting 
as a representative in a proceeding before the Administration (see 
Sec. 410.688).
    (g) The determination by the Administration under the authority of 
the Federal Claims Collection Act (31 U.S.C. 951-953) not to compromise 
a claim for overpayment under part B of title IV of the Act, or not to 
suspend or terminate collection of such a claim, or the determination to 
compromise such a claim, including the compromise amount and the time 
and manner of payment (see Sec. 410.565).
    (h) Where the amount in controversy is less than $100, the denial of 
a request for reimbursement of medical expenses (see Sec. 410.240(h)) 
which are claimed to have been incurred by the claimant in establishing 
his claim for benefits, or the approval of such request for 
reimbursement in an amount less than the amount requested. (Also see 
Sec. 410.610(j).)
    (i) The determination by the Social Security Administration that an 
individual is not qualified for use of the expedited appeals process, as 
provided in Sec. 410.629a.
    (j) The denial by the Administration of a request to readjudicate a 
claim and apply an Acquiescence Ruling.

[37 FR 20651, Sept. 30, 1972, as amended at 40 FR 53387, Nov. 18, 1975; 
41 FR 30114, July 22, 1976; 55 FR 1019, Jan. 11, 1990]



Sec. 410.620  Notice of initial determination.

    Written notice of an initial determination shall be mailed to the 
party to the determination at his last known address, except that no 
such notice shall be required in the case of a determination that a 
party's entitlement to benefits has ended because of such party's death 
(see Sec. 410.610(c)). If the initial determination disallows, in whole 
or in part, the claim of a party, or if the initial determination is to 
the effect that a party's entitlement to benefits has ended, or that a 
reduction or adjustment is to be made in benefits, the notice of the 
determination sent to the party shall state the specific reasons for the 
determination. Such notice shall also inform the party of the right to 
reconsideration (see Sec. 410.623). Where more than the correct amount 
of payment has been made, see Sec. 410.561.

[37 FR 20652, Sept. 30, 1972]



Sec. 410.621  Effect of initial determination.

    The initial determination shall be final and binding upon the party 
or parties to such determination unless it is reconsidered in accordance 
with Secs. 410.623 through 410.629, or it is revised in accordance with 
Sec. 410.671.



Sec. 410.622  Reconsideration and hearing.

    Any party who is dissatisfied with an initial determination may 
request that the Administration reconsider such determination, as 
provided in Sec. 410.623. If a request for reconsideration is filed, 
such action shall not constitute a waiver of the right to a hearing 
subsequent to such reconsideration if the party requesting such 
reconsideration is dissatisfied with the determination of the 
Administration made on such reconsideration; and a request for a hearing 
may thereafter be filed, as is provided in Sec. 410.630.



Sec. 410.623  Reconsideration; right to reconsideration.

    (a) We shall reconsider an initial determination if a written 
request for reconsideration is filed, as provided in Sec. 410.624, by or 
for the party to the initial determination (see Sec. 410.610). We

[[Page 600]]

shall also reconsider an initial determination if a written request for 
reconsideration is filed, as provided in Sec. 410.624, by an individual 
as a widow, child, parent, brother, sister, or representative of a 
decedent's estate, who makes a showing in writing that his or her rights 
with respect to benefits may be prejudiced by such determination.
    (b) Reconsideration is the first step in the administrative review 
process that we provide for an individual dissatisfied with the initial 
determination, except that we provide the opportunity for a hearing 
before an administrative law judge as the first step for those 
situations described in Secs. 410.630 (b) and (c), where an individual 
appeals an initial determination denying waiver of adjustment or 
recovery of an overpayment (see Sec. 410.561a).

[61 FR 56133, Oct. 31, 1996]



Sec. 410.624  Time and place of filing request.

    The request for reconsideration shall be made in writing and filed 
at an office of the Social Security Administration within 60 days after 
the date of receipt of notice of the initial determination, unless such 
time is extended as specified in Sec. 410.668. For purposes of this 
section, the date of receipt of notice of the initial determination 
shall be presumed to be 5 days after the date of such notice, unless 
there is a reasonable showing to the contrary.

[41 FR 47918, Nov. 1, 1976]



Sec. 410.625  Parties to the reconsideration.

    The parties to the reconsideration shall be the person who was the 
party to the initial determination (see Sec. 410.610) and any other 
person referred to in Sec. 410.623 upon whose request the initial 
determination is reconsidered.



Sec. 410.626  Notice of reconsideration.

    If the request for reconsideration is filed by a person other than 
the party to the initial determination, the Administration shall, before 
such reconsideration, mail a written notice to such party at his last 
known address, informing him that the initial determination is being 
reconsidered. In addition, the Administration shall give such party a 
reasonable opportunity to present such evidence and contentions as to 
fact or law as he may desire relative to the determination.



Sec. 410.627  Reconsidered determination.

    When a request for reconsideration has been filed, as provided in 
Secs. 410.623 and 410.624, the Administration or the State agency, as 
appropriate (see Sec. 410.601), shall reconsider the determination with 
respect to disability or the initial determination in question and the 
findings upon which it was based; and upon the basis of the evidence 
considered in connection with the initial determination and whatever 
other evidence is submitted by the parties or is otherwise obtained, the 
Administration shall make a reconsidered determination affirming or 
revising, in whole or in part, the findings and determination in 
question.



Sec. 410.628  Notice of reconsidered determination.

    Written notice of the reconsidered determination shall be mailed by 
the Social Security Administration to the parties at their last known 
addresses. The reconsidered determination shall state the specific 
reasons therefor and inform the parties of their right to a hearing (see 
Sec. 410.630), or, if appropriate, inform the parties of the 
requirements for use of the expedited appeals process (see 
Sec. 410.629a).

[40 FR 53387, Nov. 18, 1975]



Sec. 410.629  Effect of a reconsidered determination.

    The reconsidered determination shall be final and binding upon all 
parties to the reconsideration unless a hearing is requested in 
accordance with Sec. 410.631 and a decision rendered or unless such 
determination is revised in accordance with Sec. 410.671, or unless the 
expedited appeals process is used in accordance with Sec. 410.629a.

[40 FR 53388, Nov. 18, 1975]



Sec. 410.629a  Expedited appeals process; conditions for use of such process.

    In cases in which a reconsideration determination has been made or a 
higher level of appeal has been reached, an expedited appeals process 
may be

[[Page 601]]

used in lieu of the hearing and Appeals Council review, if the following 
conditions are met:
    (a) A reconsideration determination has been made by the Secretary; 
and
    (b) The individual is a party referred to in Sec. 410.629c; and
    (c) The individual has filed a written request for the expedited 
appeals process; and
    (d) The individual has alleged, and the Secretary agrees, that the 
only factor precluding a favorable determination with respect to a 
matter referred to in Sec. 410.610, is a statutory provision which the 
individual alleges to be unconstitutional; and
    (e) Where more than one individual is a party referred to in 
Sec. 410.629c, each and every party concurs in the request for the 
expedited appeals process.

[40 FR 53388, Nov. 18, 1975]



Sec. 410.629b  Expedited appeals process; place and time of filing request.

    (a) Place of filing request. The request for the expedited appeals 
process must be made in writing and filed:
    (1) At an office of the Social Security Administration; or
    (2) With a presiding officer.
    (b) Time of filing request. The request for the expedited appeals 
process must be filed at one of the following times:
    (1) No later than 60 days after the date of receipt of notice of the 
reconsidered determination, unless the time is extended in accordance 
with the standards set out in Sec. 410.669 of this chapter. For purposes 
of this paragraph, the date of receipt of notice of the reconsidered 
determination shall be presumed to be 5 days after the date of such 
notice, unless there is a reasonable showing to the contrary; or
    (2) If a request for hearing has been timely filed (see 
Sec. 410.631), at any time prior to the individual's receipt of notice 
of the presiding officer's decision; or
    (3) Within 60 days after the date of receipt of notice of the 
presiding officer's decision or dismissal, unless the time is extended 
in accordance with the standards set out in Sec. 410.669 of this 
chapter. For purposes of this paragraph (b)(3), the date of receipt of 
notice of the presiding officer's decision or dismissal shall be 
presumed to be 5 days after the date of such notice, unless there is a 
reasonable showing to the contrary; or
    (4) If a request for review by the Appeals Council has been timely 
filed (see Sec. 410.661), at any time prior to receipt by such 
individual of notice of the Appeals Council's final action.

[40 FR 53388, Nov. 18, 1975, as amended at 41 FR 47918, Nov. 1, 1976]



Sec. 410.629c  Expedited appeals process; parties.

    The parties to the expedited appeals process shall be the person or 
persons who were parties to the reconsideration determination in 
question and, if appropriate, parties to the hearing.

[40 FR 53388, Nov. 18, 1975]



Sec. 410.629d  Expedited appeals process; agreement requirements.

    (a)(1) An authorized representative of the Secretary shall, if he 
determines that all conditions for the use of the expedited appeals 
process are met (see Sec. 410.629), prepare an agreement for signature 
of the party (parties) and an authorized representative of the 
Secretary.
    (2)(i) Where a request for hearing has been filed, but prior to 
issuance of a decision a request for the expedited appeals process is 
filed, the Chief Administrative Law Judge of the Bureau of Hearings and 
Appeals, or his designee, shall determine if the conditions required for 
entering an agreement are met.
    (ii) Where a hearing decision was the last action, or where a 
request for review is pending before the Appeals Council, and a request 
for the expedited appeals process is filed, the Chairman or Deputy 
Chairman of the Appeals Council, or the Chairman's designee, shall 
determine if the conditions required for an agreement are met.
    (b) An agreement with respect to the expedited appeals process shall 
provide that:
    (1) The facts involved in the claim are not in dispute; and
    (2) Except as indicated in paragraph (b)(3) of this section, the 
Secretary's interpretation of the law is not in dispute; and

[[Page 602]]

    (3) The sole issue(s) in dispute is the application of a statutory 
provision(s) which is described therein and which is alleged to be 
unconstitutional by the party requesting use of such process; and
    (4) Except for the provision challenged, the right(s) of the party 
is established; and
    (5) The determination or decision made by the Secretary is final for 
purposes of section 205(g) of the Act.

[40 FR 53388, Nov. 18, 1975]



Sec. 410.629e  Expedited appeals process; effect of agreement.

    The agreement described in Sec. 410.629d, when signed, shall 
constitute a waiver by the parties and the Secretary with respect to the 
need of the parties to pursue the remaining steps of the administrative 
appeals process, and the period for filing a civil action in a district 
court of the United States, as provided in section 205(g) of the Social 
Security Act, shall begin as of the date of receipt of notice by the 
party (parties) that the agreement has been signed by the authorized 
representative of the Secretary. Any civil action under the expedited 
appeals process must be filed within 60 days after the date of receipt 
of notice (a signed copy of the agreement will be mailed to the party 
(parties) and will constitute notice) that the agreement has been signed 
by the Secretary's authorized representative. For purposes of this 
section, the date of receipt of notice of signing shall be presumed to 
be 5 days after the date of the notice, unless there is a reasonable 
showing to the contrary.

[49 FR 46369, Nov. 26, 1984]



Sec. 410.629f  Effect of a request that does not result in agreement.

    If a request for the expedited appeals process does not meet all the 
conditions for the use of the process, the Secretary shall so advise the 
party (parties) and shall treat the request as a request for 
reconsideration, a hearing, or Appeals Council review, whichever is 
appropriate.

[40 FR 53388, Nov. 18, 1975]



Sec. 416.630  Hearing; right to hearing.

    An individual referred to in Sec. 410.632 or Sec. 410.633 who has 
filed a written request for a hearing under the provisions in 
Sec. 410.631 has a right to a hearing if:
    (a) An initial determination and reconsideration of the 
determination have been made by the Social Security Administration 
concerning a matter designated in Sec. 410.610;
    (b) An initial determination denying waiver of adjustment of 
recovery of an overpayment based on a personal conference has been made 
by the Social Security Administration (see Sec. 410.561a); or
    (c) An initial determination denying waiver of adjustment or 
recovery of an overpayment based on a review of the written evidence of 
record has been made by the Social Security Administration (see 
Sec. 410.561a) and the determination was made concurrent with, or 
subsequent to, our reconsideration determination regarding the 
underlying overpayment but before an administrative law judge holds a 
hearing.

[61 FR 56133, Oct. 31, 1996]



Sec. 410.631  Time and place of filing request.

    The request for hearing shall be made in writing and filed at an 
office of the presiding officer, or the Appeals Council. Except where 
the time is extended as provided in Sec. 410.669, the request for 
hearing must be filed:
    (a) Within 60 days after the date of receipt of notice of the 
reconsidered determination by such individual. For purposes of this 
section, the date of receipt of notice of the reconsidered 
determinations shall be presumed to be 5 days after the date of such 
notice, unless there is a reasonable showing to the contrary; or
    (b) Where an effective date (not more than 30 days later than the 
date of mailing) is expressly indicated in such notice, within 60 days 
after such effective date.

[41 FR 47918, Nov. 1, 1976]



Sec. 410.632  Parties to a hearing.

    The parties to a hearing shall be the person or persons who were 
parties to the initial determination in question

[[Page 603]]

and the reconsideration. Any other individual may be made a party if 
such individual's rights with respect to benefits may be prejudiced by 
the decision, upon notice given to him by the Administrative Law Judge 
to appear at the hearing or otherwise present such evidence and 
contentions as to fact or law as he may desire in support of his 
interest.



Sec. 410.633  Additional parties to the hearing.

    The following individuals, in addition to those named in 
Sec. 410.632, may also be parties to the hearing. A widow, child, 
parent, brother, sister, or representative of a decedent's estate, who 
makes a showing in writing that such individual's rights with respect to 
benefits may be prejudiced by any decision that may be made, may be a 
party to the hearing.

[37 FR 20652, Sept. 30, 1972]



Sec. 410.634  Administrative Law Judge.

    The hearing provided for in this subpart F shall, except as herein 
provided, be conducted by an Administrative Law Judge designated by the 
Director of the Bureau of Hearings and Appeals of the Administration or 
his delegate. In an appropriate case, the Director may designate another 
Administrative Law Judge or a member or members of the Appeals Council 
to conduct a hearing, in which case the provisions of this subpart F 
governing the conduct of a hearing by an Administrative Law Judge shall 
be applicable thereto.



Sec. 410.635  Disqualification of Administrative Law Judge.

    No Administrative Law Judge shall conduct a hearing in a case in 
which he is prejudiced or partial with respect to any party, or where he 
has any interest in the matter pending for decision before him. Notice 
of any objection which a party may have to the Administrative Law Judge 
who will conduct the hearing, shall be made by such party at his 
earliest opportunity. The Administrative Law Judge shall consider such 
objection and shall, in his discretion, either proceed with the hearing 
or withdraw. If the Administrative Law Judge withdraws, another 
Administrative Law Judge shall be designated by the Director of the 
Bureau of Hearings and Appeals of the Administration or his delegate to 
conduct the hearing. If the Administrative Law Judge does not withdraw, 
the objecting party may, after the hearing, present his objections to 
the Appeals Council, as provided in Secs. 410.660 through 410.664 as 
reasons why the Administrative Law Judge's decision should be revised or 
a new hearing held before another Administrative Law Judge.



Sec. 410.636  Time and place of hearing.

    The Administrative Law Judge (formerly called ``hearing examiner'') 
shall fix a time and a place within the United States for the hearing, 
written notice of which, unless waived by a party, shall be mailed to 
the parties at their last known addresses or given to them by personal 
service, not less than 10 days prior to such time. As used in this 
section and in Sec. 410.647, the United States means the 50 States, the 
District of Columbia, the Commonwealth of Puerto Rico, and the Virgin 
Islands. Written notice of the objections of any party to the time and 
place fixed for a hearing shall be filed by the objecting party with the 
Administrative Law Judge at the earliest practicable opportunity (before 
the time set for such hearing). Such notice shall state the reasons for 
the party's objection and his choice as to the time and place within the 
United States for the hearing. The Administrative Law Judge may, for 
good cause, fix a new time and/or place within the United States for the 
hearing.

[37 FR 20652, Sept. 30, 1972]



Sec. 410.637  Hearing on new issues.

    At any time after a request for hearing has been made, as provided 
in Sec. 410.631, but prior to the mailing of notice of the decision, the 
Administrative Law Judge may, in his discretion, either on the 
application of a party or his own motion, in addition to the matters 
brought before him by the request for hearing, give notice that he will 
also consider any specified new issue (see Sec. 410.610) whether 
pertinent to the same or a related matter, and whether arising 
subsequent to the request for hearing, which may affect the rights of 
such party to benefits under this part

[[Page 604]]

even though the Administration has not made an initial and reconsidered 
determination with respect to such new issue: Provided, That notice of 
the time and place of the hearing on any new issue shall, unless waived, 
be given to the parties within the time and manner specified in 
Sec. 410.636: And provided further, That the determination involved is 
not one within the jurisdiction of a State agency under a Federal-State 
agreement entered into pursuant to section 413(b) of the Act. Upon the 
giving of such notice, the Administrative Law Judge shall, except as 
otherwise provided, proceed to hearing on such new issue in the same 
manner as he would on an issue on which an initial and reconsidered 
determination has been made by the Administration and a hearing 
requested with respect thereto by a party entitled to such hearing.



Sec. 410.638  Change of time and place for hearing.

    The Administrative Law Judge may change the time and place for the 
hearing, either on his own motion or for good cause shown by a party. 
The Administrative Law Judge may adjourn or postpone the hearing, or he 
may reopen the hearing for the receipt of additional evidence at any 
time prior to the mailing of notice to the party of the decision in the 
case. Reasonable notice shall be given to the parties of any change in 
the time or place of hearing or of an adjournment or a reopening of the 
hearing.



Sec. 410.639  Subpenas.

    When reasonably necessary for the full presentation of a case, an 
Administrative Law Judge (formerly called ``hearing examiner'') or a 
member of the Appeals Council, may, either upon his own motion or upon 
the request of a party, issue subpenas for the attendance and testimony 
of witnesses and for the production of books, records, correspondence, 
papers, or other documents which are relevant and material to any matter 
in issue at the hearing. Parties who desire the issuance of a subpena 
shall, not less than 5 days prior to the time fixed for the hearing, 
file with the Administrative Law Judge or at a district office of the 
Administration a written request therefor, designating the witnesses or 
documents to be produced, and describing the address or location thereof 
with sufficient particularity to permit such witnesses or documents to 
be found. The request for a subpena shall state the pertinent facts 
which the party expects to establish by such witnesses or documents and 
whether such facts could be established by other evidence without the 
use of a subpena. Subpenas, as provided for above, shall be issued in 
the name of the Secretary, and the Administration shall pay the cost of 
the issuance and the fees and mileage of any witness so subpenaed, as 
provided in section 205(d) of the Social Security Act.

[37 FR 20652, Sept. 30, 1972]



Sec. 410.640  Conduct of hearing.

    Hearings shall be open to the parties and to such other persons as 
the Administrative Law Judge deems necessary and proper. The 
Administrative Law Judge shall inquire fully into the matters at issue 
and shall receive in evidence the testimony of witnesses and any 
documents which are relevant and material to such matters. If the 
Administrative Law Judge believes that there is relevant and material 
evidence available which has not been presented at the hearing, the 
Administrative Law Judge may adjourn the hearing or, at any time prior 
to the mailing of notice of the decision, reopen the hearing for the 
receipt of such evidence. The order in which evidence and allegations 
shall be presented and the procedure at the hearing generally, except as 
these regulations otherwise expressly provide, shall be in the 
discretion of the Administrative Law Judge and of such nature as to 
afford the parties a reasonable opportunity for a fair hearing.



Sec. 410.641  Evidence.

    Evidence may be received at the hearing even though inadmissible 
under rules of evidence applicable to court procedures.



Sec. 410.642  Witnesses.

    Witnesses at the hearing shall testify under oath or affirmation or 
as directed by the Administrative Law

[[Page 605]]

Judge, unless they are excused by the Administrative Law Judge for 
cause. The Administrative Law Judge may examine the witnesses and shall 
allow the parties or their representatives to do so. If the 
Administrative Law Judge conducts the examination of a witness, he may 
allow the parties to suggest matters as to which they desire the witness 
to be questioned, and the Administrative Law Judge shall question the 
witness with respect to such matters if they are relevant and material 
to any issue pending for decision before him.



Sec. 410.643  Oral argument and written allegations.

    The parties, upon their request, shall be allowed a reasonable time 
for the presentation of oral argument or for the filing of briefs or 
other written statements of allegations as to facts or law. Where there 
is more than one party to the hearing, copies of any brief or other 
written statement shall be filed in sufficient number that they may be 
made available to any party.



Sec. 410.644  Record of hearing.

    A complete record of the proceedings at the hearing shall be made. 
The record shall be transcribed in any case which is certified to the 
Appeals Council without decision by the Administrative Law Judge (see 
Secs. 410.654 and 410.657 to 410.659 inclusive), in any case where a 
civil action is commenced against the Secretary (see Sec. 410.666), or 
in any other case when directed by the Administrative Law Judge or the 
Appeals Council.



Sec. 410.645  Joint hearings.

    When two or more hearings are to be held, and the same or 
substantially similar evidence is relevant and material to the matters 
in issue at each such hearing, the Administrative Law Judge (formerly 
called ``hearing examiner'') may fix the same time and place for each 
hearing and conduct all such hearings jointly. However, where there is 
no common issue of law or fact involved in two or more hearings and any 
party objects to a joint hearing, a joint hearing may not be held. Where 
joint hearings are held, a single record of the proceedings shall be 
made and the evidence introduced in one case may be considered as 
introduced in the others, and a separate or joint decision shall be 
made, as appropriate.

[37 FR 20652, Sept. 30, 1972]



Sec. 410.646  Consolidated issues.

    When one or more additional issues are raised by the Administrative 
Law Judge pursuant to Sec. 410.637, such issues may, in the discretion 
of the Administrative Law Judge, be consolidated for hearing and 
decision with other issues pending before him upon the same request for 
a hearing, whether or not the same or substantially similar evidence is 
relevant and material to the matters in issue. A single decision may be 
made upon all such issues.



Sec. 410.647  Waiver of right to appear and present evidence.

    (a) General. Any party to a hearing shall have the right to appear 
before the Administrative Law Judge (formerly called ``hearing 
examiner''), personally or by representative, and present evidence and 
contentions. If all parties are unwilling, unable, or waive their right 
to appear before the Administrative Law Judge, personally or by 
representative, it shall not be necessary for the Administrative Law 
Judge to conduct an oral hearing as provided in Secs. 410.636 to 
410.646, inclusive. A waiver of the right to appear and present evidence 
and allegations as to facts and law shall be made in writing and filed 
with the Administrative Law Judge. Such waiver may be withdrawn by a 
party at any time prior to the mailing of notice of the decision in the 
case. Even though all of the parties have filed a waiver of the right to 
appear and present evidence and contentions at a hearing before the 
Administrative Law Judge, the Administrative Law Judge may, 
nevertheless, give notice of a time and place and conduct a hearing as 
provided in Secs. 410.636 to 410.646, inclusive, if he believes that the 
personal appearance and testimony of the party or parties would assist 
him to ascertain the facts in issue in the case.
    (b) Record as basis for decision. Where all of the parties have 
waived their right to appear in person or through a representative and 
the Administrative

[[Page 606]]

Law Judge does not schedule an oral hearing, the decision shall be based 
on the record. Where a party residing outside the United States at a 
place not readily accessible to the United States does not indicate that 
he wishes to appear in person or through a representative before an 
Administrative Law Judge, and there are no other parties to the hearing 
who wish to appear, the Administrative Law Judge may decide the case on 
the record. In any case where the decision is to be based on the record, 
the Administrative Law Judge shall make a record of the relevant written 
evidence, including applications, written statements, certificates, 
affidavits, reports, and other documents which were considered in 
connection with the initial determination and reconsideration, and 
whatever additional relevant and material evidence the party or parties 
may present in writing for consideration by the Administrative Law 
Judge. Such documents shall be considered as all of the evidence in the 
case.

[37 FR 20652, Sept. 30, 1972]



Sec. 410.648  Dismissal of request for hearing; by application of party.

    With the approval of the Administrative Law Judge at any time prior 
to the mailing of notice of the decision, a request for a hearing may be 
withdrawn or dismissed upon the application of the party or parties 
filing the request for such hearing. A party may request a dismissal by 
filing a written notice of such request with the Administrative Law 
Judge or orally stating such request at the hearing.



Sec. 410.649  Dismissal by abandonment of party.

    With the approval of the Administrative Law Judge, a request for 
hearing may also be dismissed upon its abandonment by the party or 
parties who filed it. A party shall be deemed to have abandoned a 
request for hearing if neither the party nor his representative appears 
at the time and place fixed for the hearing and either (a) prior to the 
time for hearing such party does not show good cause as to why neither 
he nor his representative can appear or (b) within 10 days after the 
mailing of a notice to him by the Administrative Law Judge to show 
cause, such party does not show good cause for such failure to appear 
and failure to notify the Administrative Law Judge prior to the time 
fixed for hearing that he cannot appear.



Sec. 410.650  Dismissal for cause.

    The presiding officer may, on his own motion, dismiss a hearing 
request, either entirely or as to any stated issue, under any of the 
following circumstances:
    (a) Res judicata. Where there has been a previous determination or 
decision by the Secretary with respect to the rights of the same party 
on the same facts pertinent to the same issue or issues which has become 
final either by judicial affirmance or, without judicial consideration, 
upon the claimant's failure timely to request reconsideration, hearing, 
or review, or to commence a civil action with respect to such 
determination or decision (see Secs. 410.624, 410.631, 410.661, and 
410.666).
    (b) No right to hearing. Where the party requesting a hearing is not 
a proper party under Sec. 410.632 or Sec. 410.633 or does not otherwise 
have a right to a hearing under Sec. 410.630. This would include, but is 
not limited to, an individual claiming as a representative payee 
appointed pursuant to Sec. 410.581 (see Sec. 410.615).
    (c) Hearing request not timely filed. Where the party has failed to 
file a hearing request timely pursuant to Sec. 410.631 and the time for 
filing such request has not been extended as provided in Sec. 410.669.
    (d) Death of party. Where the party who filed the hearing request 
dies and there is no information before the presiding officer or the 
Social Security Administration showing that an individual who is not a 
party may be prejudiced by the Social Security Administration's 
determination which is the subject of the request for hearing: Provided; 
That if, within 60 days after the date notice of such dismissal is 
mailed to the original party at his last known address any such other 
individual states in writing that he desires a hearing on such claim and 
shows that he

[[Page 607]]

may be prejudiced by the Social Security Administration's initial 
determination, then the dismissal of the request for hearing shall be 
vacated.

[36 FR 23760, Dec. 14, 1971, as amended at 37 FR 20653, Sept. 30, 1972; 
41 FR 54753, Dec. 15, 1976]



Sec. 410.651  Notice of dismissal and right to request review thereon.

    Notice of the Administrative Law Judge's dismissal action shall be 
given to the parties or mailed to them at their last known addresses. 
Such notice shall advise the parties of their right to request review of 
the dismissal action by the Appeals Council (see Sec. 410.660).



Sec. 410.652  Effect of dismissal.

    The dismissal of a request for hearing shall be final and binding 
unless vacated (see Sec. 410.653).



Sec. 410.653  Vacation of dismissal of request for hearing.

    A presiding officer or the Appeals Council may, on request of the 
party and for good cause shown, vacate any dismissal of a request for 
hearing at any time within 60 days after the date of receipt of the 
notice of dismissal by the party requesting the hearing at his last 
known address. For purposes of this section, the date of receipt of the 
dismissal notice shall be presumed to be 5 days after the date of such 
notice, unless there is a reasonable showing to the contrary. In any 
case where a presiding officer has dismissed the hearing request, the 
Appeals Council may, on its own motion, within 60 days after the mailing 
of such notice, review such dismissal and may, in its discretion vacate 
such dismissal.

[41 FR 54753, Dec. 15, 1976]



Sec. 410.654  Administrative Law Judge's decision or certification to Appeals Council.

    As soon as practicable after the close of a hearing, the 
Administrative Law Judge, except as herein provided, shall make a 
decision in the case or certify the case with a recommended decision to 
the Appeals Council for decision (see Secs. 410.657 through 410.659). If 
the Administrative Law Judge makes a decision in the case, such decision 
shall be based upon the evidence adduced at the hearing (Secs. 410.636 
through 410.646, inclusive) or otherwise included in the hearing record 
(see Sec. 410.647). The decision shall be made in writing and contain 
findings of fact and a statement of reasons. A copy of the decision 
shall be mailed to the parties at their last known addresses.



Sec. 410.655  Effect of Administrative Law Judge's decision.

    The decision of the Administrative Law Judge provided for in 
Sec. 410.654, shall be final and binding upon all parties to the hearing 
unless it is reviewed by the Appeals Council (see Secs. 410.663 through 
410.665) or unless it is revised in accordance with Sec. 410.671, or 
unless the expedited appeals process is used, in accordance with 
Sec. 410.629a. If a party's request for review of the Administrative Law 
Judge's decision is denied (see Sec. 410.662) or is dismissed (see 
Sec. 410.667), such decision shall be final and binding upon all parties 
to the hearing unless a civil action is filed in a district court of the 
United States, as is provided in section 205(g) of the Social Security 
Act, as incorporated in the Federal Coal Mine Health and Safety Act by 
section 413(b) of that Act (see Sec. 410.670a), or unless the decision 
is revised in accordance with Sec. 410.671.

[40 FR 53388, Nov. 18, 1975]



Sec. 410.656  Removal of hearing to Appeals Council.

    The Appeals Council on its own motion may remove to itself any 
request for hearing pending before an Administrative Law Judge. The 
hearing on any matter so removed to the Appeals Council shall be 
conducted in accordance with the requirements of Secs. 410.637 to 
410.653, inclusive. Notice of such removal shall be mailed to the 
parties at their last known addresses.



Sec. 410.657  Appeals Council proceedings on certification and review; procedure before Appeals Council on certification by the Administrative Law Judge.

    When a case has been certified to the Appeals Council by an 
Administrative Law Judge with his recommended decision (see 
Sec. 410.654), the Administrative

[[Page 608]]

Law Judge shall mail notice of such action to the parties at their last 
known addresses. The parties shall be notified of their right to file 
with the Appeals Council within 10 days from the date of mailing of the 
recommended decision, briefs or other written statements of exceptions 
or allegations as to applicable fact and law, except in the case of 
suspension or disqualification (see Sec. 410.694(b)). Upon request of 
any party made within such 10-day period, a 10-day extension of time for 
filing such briefs or statements shall be granted and, upon a showing of 
good cause, such 10-day period may be extended, as appropriate. Where 
there is more than one party, copies of such briefs or written 
statements shall be filed in sufficient number that they may be made 
available to any party requesting a copy or any other party designated 
by the Appeals Council. Copies or a statement of the contents of the 
documents or other written evidence received in evidence in the hearing 
record, and a copy of the transcript of oral evidence adduced at the 
hearing, if any, or a condensed statement thereof shall be made 
available to any party upon request, upon payment of the cost, or if 
such cost is not readily determinable, the estimated amount thereof, 
unless, for good cause shown, such payment is waived. When a case has 
been certified to the Appeals Council by an Administrative Law Judge for 
decision any party shall be given, upon his request, a reasonable 
opportunity to appear before the Appeals Council for the purpose of 
presenting oral argument.



Sec. 410.658  Evidence in proceeding before Appeals Council.

    Evidence in addition to that admitted into the hearing record by the 
Administrative Law Judge may not be received as evidence except where it 
appears to the Appeals Council that such additional evidence may affect 
its decision. If no additional material is presented, but such evidence 
is available and may affect its decision, the Appeals Council shall 
receive such evidence or designate an Administrative Law Judge or member 
of the Appeals Council before whom the evidence shall be introduced. 
Before such additional evidence is received, notice that evidence will 
be received with respect to certain matters shall be mailed to the 
parties, unless such notice is waived, at their last known addresses, 
and the parties shall be given a reasonable opportunity to present 
evidence which is relevant and material to such matters. When the 
additional evidence is presented to an Administrative Law Judge or a 
member of the Appeals Council, a transcript or a condensed statement of 
such evidence shall be made available to any party upon request, upon 
payment of the cost, or if such cost is not readily determinable, the 
estimated amount thereof, unless, for good cause shown, such payment is 
waived.



Sec. 410.659  Decision of Appeals Council.

    The decision of the Appeals Council, when a case has been certified 
to it by an Administrative Law Judge along with his recommended 
decision, shall be made in accordance with the provisions of 
Sec. 410.665.



Sec. 410.660  Right to request review of Administrative Law Judge's decision or dismissal.

    If an Administrative Law Judge has made a decision, as provided in 
Sec. 410.654, or dismissed a request for hearing, as provided in 
Secs. 410.648 through 410.650, any party thereto may request the Appeals 
Council to review such decision or dismissal.



Sec. 410.661  Time and place of filing request.

    The request for review shall be made in writing and filed with an 
office of the Social Security Administration, or with a presiding 
officer, or the Appeals Council. Such request shall be accompanied by 
whatever documents or other evidence the party desires the Appeals 
Council to consider in its review. The request for review must be filed 
within 60 days after the date of receipt of notice of the presiding 
officer's decision or dismissal, unless the time is extended as provided 
in Sec. 410.669. For purposes of this section, the date of receipt of 
notice of the presiding officer's decision or dismissal shall be 
presumed to be 5 days after the date of such notice, unless there is a 
reasonable showing to the contrary.

[41 FR 54753, Dec. 15, 1976]

[[Page 609]]



Sec. 410.662  Action by Appeals Council on review.

    The Appeals Council may dismiss (see Sec. 410.667) or, in its 
discretion, deny or grant a party's request for review of a presiding 
officer's decision, or may, on its own motion, within 60 days after the 
date of the notice of such decision, reopen such decision for review or 
for the purpose of dismissing the party's request for hearing for any 
reason for which it could have been dismissed by the presiding officer 
(see Secs. 410.648 through 410.650). Notice of the action by the Appeals 
Council shall be mailed to the party at his last known address.

[41 FR 54753, Dec. 15, 1976]



Sec. 410.663  Procedure before Appeals Council on review.

    (a) Availability of documents or other written statements. Whenever 
the Appeals Council determines to review a presiding officer's decision 
(except when the case is remanded to a presiding officer in accordance 
with Sec. 410.665), the Appeals Council shall make available to any 
party upon request, copies or a statement of the contents of the 
documents or other written evidence upon which the presiding officer's 
decision was based, and a copy of the transcript of oral evidence, if 
any, or a condensed statement thereof, upon payment of the cost, or if 
such cost is not readily determinable, the estimated amount thereof, 
unless for good cause shown, such payment is waived.
    (b) Filing briefs or other written statements. The parties shall be 
given, upon request, a reasonable opportunity to file briefs or other 
written statements of allegations as to fact and law. Copies of each 
brief or other written statements, where there is more than one party, 
shall be filed in sufficient number that they may be made available to 
any party requesting a copy and to any other party designated by the 
Appeals Council.
    (c) Appearance to present oral argument. Any party may request an 
appearance before the Appeals Council for the purpose of presenting oral 
argument. Such request shall be granted where the Appeals Council 
determines that a significant question of law or policy is presented or 
where the Appeals Council is of the opinion that such oral argument 
would be beneficial in rendering a proper decision in the case. Where 
the request for appearance is granted, the party will be notified of the 
time and place for the appearance at least 10 days prior to the date of 
the scheduled appearance.

[41 FR 53790, Dec. 9, 1976]



Sec. 410.664  Evidence admissible on review.

    (a) Admissibility of additional evidence. Evidence in addition to 
that introduced at the hearing before the presiding officer, or 
documents before the presiding officer where such hearing was waived 
(see Sec. 410.647), may not be admitted except where it appears to the 
Appeals Council that such evidence is relevant and material to an issue 
before it and thus may affect its decision.
    (b) Receipt of evidence by Presiding Officer. Where the Appeals 
Council determines that additional evidence is needed for a sound 
decision, it will remand the case to a presiding officer for receipt of 
the evidence, further proceedings, and a new decision, except where the 
Appeals Council can obtain the evidence more expeditiously and the 
rights of the claimant will not be adversely affected.
    (c) Receipt of evidence by Appeals Council. Where the Appeals 
Council obtains the evidence itself, before such evidence is admitted 
into the record, notice that evidence will be received with respect to 
certain issues shall be mailed to the parties, unless such notice is 
waived, at their last known addresses, and the parties shall be given a 
reasonable opportunity to comment thereon and to present evidence which 
is relevant and material to such issues.
    (d) Copies of evidence. When additional evidence is presented to a 
presiding officer or to the Appeals Council, a transcript or a condensed 
statement of such evidence shall be made available to any party upon 
request, upon payment of the cost, or if such cost is not readily 
determinable, the estimated amount thereof, unless, for good cause 
shown, such payment is waived.

[41 FR 53790, Dec. 9, 1976]

[[Page 610]]



Sec. 410.665  Decision by Appeals Council or remanding of case.

    (a) General. If a case is certified to the Appeals Council by an 
Administrative Law Judge (see Sec. 410.654), the Appeals Council shall 
make a decision. If the Appeals Council decides to review an 
Administrative Law Judge's decision as provided in Sec. 410.662, the 
Appeals Council may, upon such review, affirm, modify, or reverse the 
decision of the Administrative Law Judge, or vacate such decision and 
remand the case to an Administrative Law Judge either for rehearing and 
the issuance of a decision thereon or to take further testimony in the 
case and return it to the Appeals Council with a recommended decision 
for decision by the Appeals Council. Where a case has been remanded by a 
court for further consideration, the Appeals Council may proceed then to 
make the decision or it may in turn remand the case to an Administrative 
Law Judge with directions to return the case upon completion of the 
necessary action to the Appeals Council with a recommended decision for 
decision by the Appeals Council.
    (b) Case remanded to an Administrative Law Judge. Where a case is 
remanded to an Administrative Law Judge, he shall initiate such 
additional proceedings and take such other action (under Secs. 410.632 
through 410.655) as is directed by the Appeals Council in its order of 
remand. The Administrative Law Judge may take any additional action not 
inconsistent with the order of remand. Upon completion of all action 
called for by the order of remand and any other action initiated by the 
Administrative Law Judge, the Administrative Law Judge shall promptly 
(1) issue a decision in writing which contains findings of fact and a 
statement of reasons, or (2) when so directed by the Appeals Council, 
return the case with his recommended decision to the Appeals Council for 
its decision. A copy of the decision shall be mailed to each party at 
his last known address. When a recommended decision is issued, the 
Administrative Law Judge shall also notify each party of his right to 
file with the Appeals Council within 10 days from the the date of 
mailing of the recommended decision, briefs or other written statements 
of exceptions and allegations as to applicable fact and law, except in 
the case of suspension or disqualification (see Sec. 410.694(b)). Upon 
request of any party made within such 10-day period, a 10-day extension 
of time for filing such briefs or statements shall be granted and, upon 
a showing of good cause, such 10-day period may be extended, as 
appropriate.
    (c) Decision by Appeals Council. A decision of the Appeals Council 
shall be based upon the evidence received into the hearing record and 
such further evidence as the Appeals Council may receive as provided in 
Secs. 410.657, 410.658, 410.663, and 410.664. This decision shall be 
made in writing and contain findings of fact, and a statement of 
reasons. A copy of the decision shall be mailed to each party at his 
last known address.



Sec. 410.666  Effect of Appeals Council's decision or refusal to review.

    The Appeals Council may deny a party's request for review or it may 
grant review and either affirm or reverse the Administrative Law Judge's 
decision. The decision of the Appeals Council, or the decision of the 
Administrative Law Judge where the request for review of such decision 
is denied (see Sec. 410.662), shall be final and binding upon all 
parties to the hearing unless a civil action is filed in a district 
court of the United States under the provisions of section 205(g) of the 
Social Security Act, as incorporated by section 413(b) of the Act (see 
Sec. 410.670a), or unless the decision is revised under the provisions 
described in Sec. 410.671.

[37 FR 20653, Sept. 30, 1972]



Sec. 410.667  Dismissal by Appeals Council.

    The Appeals Council may dismiss a request for review or proceedings 
before it under any of the following circumstances:
    (a) Upon request of party. Proceedings pending before the Appeals 
Council may, with the approval of the Appeals Council, be discontinued 
and dismissed upon written application of the party or parties who filed 
the request for review to withdraw such request.

[[Page 611]]

    (b) Death of party. Proceedings before the Appeals Council, whether 
on request for review or review on the motion of the Appeals Council, 
may be dismissed upon the death of a party only if the record 
affirmatively shows that there is no prejudiced individual who wishes to 
continue the action.
    (c) Request for review not timely filed. A request for review of a 
decision by an Administrative Law Judge shall be dismissed where the 
party has failed to file a request for review within the time specified 
in Sec. 410.661 and the time for filing such request has not been 
extended as provided in Sec. 410.669.



Sec. 410.668  Extension of time to request reconsideration.

    If a party to an initial determination desires to file a request for 
reconsideration after the time for filing such request has passed (see 
Sec. 410.624), such party may file a petition with the Administration 
for an extension of time for the filing of such request. Such petition 
shall be in writing and shall state the reasons why the request for 
reconsideration was not filed within the required time. For good cause 
shown, the component of the Administration which has jurisdiction over 
the proceedings (see Sec. 410.601) may extend the time for filing the 
request for reconsideration.



Sec. 410.669  Extension of time to request hearing or review or begin civil action.

    (a) General. Any party to a reconsidered determination, a decision 
of an Administrative Law Judge (formerly called hearing examiner), or a 
decision of the Appeals Council (resulting from an initial determination 
as described in Sec. 410.610), may petition for an extension of time for 
filing a request for hearing or review or for commencing a civil action 
in a district court of the United States, although the time for filing 
such request or commencing such action (see Secs. 410.631 and 410.661 
and section 205(g) of the Social Security Act as incorporated by section 
413(b) of the Act), has passed. If an extension of the time fixed by 
Sec. 410.631 for requesting a hearing before an Administrative Law Judge 
is sought, the petition may be filed with an Administrative Law Judge. 
In any other case, the petition shall be filed with the Appeals Council. 
The petition shall be in writing and shall state the reasons why the 
request or action was not filed within the required time. For good cause 
shown, an Administrative Law Judge or the Appeals Council, as the case 
may be, may extend the time for filing such request or action.
    (b) Where civil action commenced against wrong defendant. If a party 
to a decision of the Appeals Council, or to a decision of the 
Administrative Law Judge where the request for review of such decision 
is denied (see Sec. 410.662), timely commences a civil action in a 
district court as provided by section 205(g) of the Social Security Act 
as incorporated by section 413(b) of the Act, but names as defendant the 
United States or any agency, officer, or employee thereof instead of the 
Secretary either by name or by official title, and causes process to be 
served in such action as required by the Federal Rules of Civil 
Procedure, the Administration shall mail notice to such party that he 
has named the incorrect defendant in such action; and the time within 
which such party may commence the civil action pursuant to section 
205(g) of the Social Security Act against the Secretary shall be deemed 
to be extended to and including the 60th day following the date of 
mailing of such notice.

[37 FR 20653, Sept. 30, 1972]



Sec. 410.670  Review by Appeals Council.

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



Sec. 410.670a  Judicial review.

    A civil action may be commenced in a district court of the United 
States with respect to a decision of the Appeals Council, or to a 
decision of the Administrative Law Judge (formerly

[[Page 612]]

called hearing examiner) where the request for review of such decision 
is denied by the Appeals Council, as provided in section 205 (g) and (h) 
of the Social Security Act, as incorporated by section 413(b) of the 
Act.

[37 FR 20653, Sept. 30, 1972]



Sec. 410.670b  Interim provision for the adjudication of certain claims filed prior to May 19, 1972.

    (a) General. Section 6 of the Black Lung Benefits Act of 1972 added 
a section 431 to title IV of the Federal Coal Mine Health and Safety Act 
of 1969 which requires the Secretary to review, under the terms of the 
1972 amendments, all claims for benefits which were filed prior to May 
19, 1972 (the date of enactment of the 1972 amendments), and which were 
either pending before the Administration on that date, or which had been 
previously disallowed. Therefore, notwithstanding any other provision of 
this subpart, and in keeping with the objective of providing for 
effective and expeditious processing of the large backlog of claims that 
have to be reexamined under the 1972 amendments, all such claims for 
benefits will be adjudicated under the terms of the amended Act in 
accordance with this section.
    (b) Cases remanded by the Federal courts. (1) Those claims described 
in paragraph (a) of this section which are remanded to the Secretary by 
the Federal courts are reviewed in the Bureau of Hearings and Appeals.
    (2) A decision will be rendered by an Administrative Law Judge 
(formerly called hearing examiner) in all such claims which can be 
allowed under the 1972 amendments on the evidence then of record. Such 
decision shall be considered the Administrative Law Judge's decision 
referred to in Sec. 410.654, and a party to the decision may request 
review thereof by the Appeals Council in accordance with Secs. 410.660 
and 410.661.
    (3) A copy of such Administrative Law Judge's decision shall be 
mailed to such party at his last known address. The date of mailing of 
such decision will replace the date of any prior notice of an initial 
determination for purposes of Sec. 410.672.
    (4) Those claims described in paragraph (a) of this section which 
are remanded to the Secretary by the Federal courts and which cannot be 
allowed in the Bureau of Hearings and Appeals under the 1972 amendments 
on the evidence then of record, shall be remanded to the 
Administration's Bureau of Disability Insurance for a new determination.
    (c) Claims pending in the Bureau of Hearings and Appeals. (1) Those 
claims described in paragraph (a) of this section which are pending 
before an Administrative Law Judge or the Appeals Council and which can 
be allowed under the 1972 amendments on the evidence then of record will 
be decided by an Administrative Law Judge or the Appeals Council, and 
this decision will constitute the decision referred to in Sec. 410.654 
or Sec. 410.665(c).
    (2) A copy of such Administrative Law Judge's decision shall be 
mailed to such party at his last known address. The date of mailing of 
such decision will replace the date of any prior notice of an initial 
determination for purposes of Sec. 410.672. Such claims pending before 
an Administrative Law Judge or the Appeals Council which cannot be 
allowed under the 1972 amendments on the evidence then of record shall 
be remanded to the Administration's Bureau of Disability Insurance for a 
new determination.
    (d) Claims pending in, or remanded to the Bureau of Disability 
Insurance. (1) Those claims described in paragraph (a) of this section 
in which no timely request for hearing has been filed, or in which an 
Administrative Law Judge or the Appeals Council has previously rendered 
or affirmed a decision of disallowance, or which have been remanded by 
the Bureau of Hearings and Appeals in accordance with paragraph (b) or 
(c) of this section, shall be reviewed in the Bureau of Disability 
Insurance and a new determination made.
    (2) Written notice of such determination shall be mailed to the 
party at his last known address. If such new determination is adverse to 
the party in whole or in part, the notice shall explain the basis for 
the determination. It shall also advise the party of his right to 
request further consideration

[[Page 613]]

of the determination by the Bureau of Disability Insurance if he has 
additional evidence or contentions as to fact or law to submit. The 
effective date of such notice shall be a date 30 days later than the 
date of mailing and shall be expressly indicated in such notice.
    (3) Before this effective date, the party may request further 
consideration of the determination by the Bureau of Disability Insurance 
if he has additional evidence or contentions as to fact or law to 
submit. If such further consideration is requested timely, the new 
determination referred to in paragraph (d)(1) of this section shall not 
go into effect. Rather, his claim will be further considered as 
requested and a further determination made. Written notice of the latter 
determination will be mailed to the party at his last known address. If 
this determination is adverse to the party in whole or in part, the 
notice shall explain the basis for the determination. The effective date 
of such notice shall be the date of mailing.
    (4) The effective date of the determination referred to in paragraph 
(d)(2) or (d)(3) of this section shall replace the date of any prior 
notice of an initial determination for purposes of Sec. 410.672.
    (5) A determination made as provided in paragraph (d)(1) or (d)(3) 
of this section shall be final and binding upon all parties to such 
determination unless a hearing is requested within 6 months of the 
effective date of the notice of the determination, except where a 
previously filed hearing request or request for review by the Appeals 
Council or by a court is still pending, in which case the claim will be 
referred to an Administrative Law Judge for a hearing.
    (6) Those claims described in paragraph (a) of this section in which 
no initial determination has been made shall be adjudicated under the 
1972 amendments in accordance with the other provisions of this part.

[37 FR 20653, Sept. 30, 1972]



Sec. 410.670c  Application of circuit court law.

    The procedures which follow apply to administrative determinations 
or decisions on claims involving the application of circuit court law.
    (a) The Administration will apply a holding in a United States Court 
of Appeals decision which it determines conflicts with its 
interpretation of a provision of the Social Security Act or regulations 
unless the Government seeks further review or the Administration 
relitigates the issue presented in the decision in accordance with 
paragraphs (c) and (d) of this section. The Administration will apply 
the holding to claims at all levels of administrative adjudication 
within the applicable circuit unless the holding, by its nature, applies 
only at certain levels of adjudication.
    (b) When the Administration determines that a United States Court of 
Appeals holding conflicts with the Administration's interpretation of a 
provision of the Social Security Act or regulations and the Government 
does not seek further review or is unsuccessful on further review, the 
Administration will issue a Social Security Acquiescence Ruling that 
describes the administrative case and the court decision, identifies the 
issue(s) involved, and explains how the Administration will apply the 
holding, including, as necessary, how the holding relates to other 
decisions within the applicable circuit. These rulings will generally be 
effective on the date of their publication in the Federal Register and 
will apply to all determinations and decisions made on or after that 
date. If the Administration makes a determination or decision between 
the date of a circuit court decision and the date an Acquiescence Ruling 
is published, the claimant may request application of the published 
ruling to the prior determination or decision. The claimant must first 
demonstrate that application of the ruling could change the prior 
determination or decision. A claimant may so demonstrate by submitting a 
statement which cites the ruling and indicates what finding or statement 
in the rationale of the prior determination or decision conflicts with 
the ruling. If the claimant can so demonstrate, the Administration will 
readjudicate the claim at the level at

[[Page 614]]

which it was last adjudicated in accordance with the ruling. Any 
readjudication will be limited to consideration of the issue(s) covered 
by the ruling and any new determination or decision on readjudication 
will be subject to administrative and judicial review in accordance with 
this subpart. A denial of a request for readjudication will not be 
subject to further administrative or judicial review. If a claimant 
files a request for readjudication within the sixty day appeal period 
and that request is denied, the Administration shall extend the time to 
file an appeal on the merits of the claim to sixty days after the date 
that the request for readjudication is denied.
    (c) After the Administration has published a Social Security 
Acquiescence Ruling to reflect a holding of a United States Court of 
Appeals on an issue, the Administration may decide under certain 
conditions to relitigate that issue within the same circuit. The 
Administration will relitigate only when the conditions specified in 
paragraphs (c) (2) and (3) of this section are met, and, in general, one 
of the events specified in paragraph (c)(1) of this section occurs.
    (1) Activating events: (i) An action by both Houses of Congress 
indicates that a court case on which an Acquiescence Ruling was based 
was decided inconsistently with congressional intent, such as may be 
expressed in a joint resolution, an appropriations restriction, or 
enactment of legislation which affects a closely analogous body of law;
    (ii) A statement in a majority opinion of the same circuit indicates 
that the court might no longer follow its previous decision if a 
particular issue were presented again;
    (iii) Subsequent circuit court precedent in other circuits supports 
the Administration's interpretation of the Social Security Act or 
regulations on the issue(s) in question; or
    (iv) A subsequent Supreme Court decision presents a reasonable legal 
basis for questioning a circuit court holding upon which the 
Administration bases a Social Security Acquiescence Ruling.
    (2) The General Counsel of the Department of Health and Human 
Services, after consulting with the Department of Justice, concurs that 
relitigation of an issue and application of the Administration's 
interpretation of the Social Security Act or regulations at the 
administrative level within the circuit would be appropriate.
    (3) The Administration publishes a notice in the Federal Register 
that it intends to relitigate an issue, and that it will apply its 
interpretation of the Social Security Act or regulations at the 
administrative level within the circuit. The notice will explain why the 
Administration made this decision.
    (d) When the Administration decides to relitigate an issue, it will 
provide a notice explaining its action to all affected claimants. In 
adjudicating claims subject to relitigation, decisionmakers throughout 
the SSA administrative review process will apply the Administration's 
interpretation of the Social Security Act and regulations, but will also 
state in written determinations or decisions how the claims would have 
been decided under the circuit standard. Claims not subject to 
relitigation will continue to be decided under the Acquiescence Ruling 
in accordance with the circuit standard. So that affected claimants can 
be readily identified and any subsequent decision of the circuit court 
or the Supreme Court can be implemented quickly and efficiently, the 
Administration will maintain a listing of all claimants who receive this 
notice and will provide them the relief ordered by the court.
    (e) The Administration will rescind as obsolete a Social Security 
Acquiescence Ruling and apply its interpretation of the Social Security 
Act or regulations by publishing a notice in the Federal Register when 
any of the following events occurs:
    (1) The Supreme Court overrules or limits a circuit court holding 
that was the basis of an Acquiescence Ruling;
    (2) A circuit court overrules or limits itself on an issue that was 
the basis of an Acquiescence Ruling;
    (3) A Federal law is enacted that removes the basis for the holding 
in a decision of a circuit court that was the subject of an Acquiescence 
Ruling; or
    (4) The Administration subsequently clarifies, modifies or revokes 
the regulation or ruling that was the subject of a circuit court holding 
that the Administration determined conflicts with its

[[Page 615]]

interpretation of the Social Security Act or regulations, or it 
subsequently publishes a new regulation(s) addressing an issue(s) not 
previously included in its regulations when that issue(s) was the 
subject of a circuit court holding that conflicted with its 
interpretation of the Social Security Act or regulations and that 
holding was not compelled by the statute or Constitution.

[55 FR 1019, Jan. 11, 1990]



Sec. 410.671  Revision for error or other reason; time limitation generally.

    (a) Initial, revised or reconsidered determination. Except as 
otherwise provided in Sec. 410.675, an initial, revised or reconsidered 
determination (see Secs. 410.610 and 410.627) may be revised by the 
appropriate component of the Administration having jurisdiction over the 
proceedings (Sec. 410.601), on its own motion or upon the petition of 
any party for a reason, and within the time period, prescribed in 
Sec. 410.672.
    (b) Decision or revised decision of an Administrative Law Judge or 
the Appeals Council. Either upon the motion of the Administrative Law 
Judge or the Appeals Council, as the case may be, or upon the petition 
of any party to a hearing, except as otherwise provided in Sec. 410.675, 
any decision of an Administrative Law Judge provided for in Sec. 410.654 
or any revised decision may be revised by such Administrative Law Judge, 
or by another Administrative Law Judge if the Administrative Law Judge 
who issued the decision is unavailable, or by the Appeals Council for a 
reason and within the time period prescribed in Sec. 410.672. Any 
decision of the Appeals Council provided for in Sec. 410.665 or any 
revised decision of the Appeals Council, may be revised by the Appeals 
Council for a reason and within the time period prescribed in 
Sec. 410.672. For the purpose of this paragraph (b), an Administrative 
Law Judge shall be considered to be unavailable if among other 
circumstances, such hearing examiner has died, terminated his 
employment, is on leave of absence, has had a transfer of official 
station, or is unable to conduct a hearing because of illness.



Sec. 410.672  Reopening initial, revised or reconsidered determinations of the Administration and decisions of an Administrative Law Judge or the Appeals 
          Council; finality of determinations and decisions.

    An initial, revised or reconsidered determination of the 
Administration or a decision, or revised decision of an Administrative 
Law Judge or of the Appeals Council which is otherwise final under 
Sec. 410.621, Sec. 410.629, Sec. 410.655, or Sec. 410.666 may be 
reopened:
    (a) Within 12 months from the date of the notice of the initial 
determination (see Sec. 410.620), to the party to such determination, or
    (b) After such 12-month period, but within 4 years after the date of 
the notice of the initial determination (see Sec. 410.620) to the party 
to such determination, upon a finding of good cause for reopening such 
determination or decision, or
    (c) At any time, when:
    (1) Such initial, revised, or reconsidered determination or decision 
was procured by fraud or similar fault of the claimant or some other 
person; or
    (2) An adverse claim has been filed; or
    (3) An individual previously determined to be dead, and on whose 
account entitlement of a party was established, is later found to be 
alive; or
    (4) The death of the individual on whose account a party's claim was 
denied for lack of proof of death is established--
    (i) By reason of an unexplained absence from his or her residence 
for a period of 7 years (see Sec. 410.240(g)(2)); or
    (ii) By location or identification of his or her body; or
    (5) Such initial, revised, or reconsidered determination or decision 
is unfavorable, in whole or in part, to the party thereto but only for 
the purpose of correcting clerical error or error on the face of the 
evidence on which such determination or decision was based.

[36 FR 23760, Dec. 14, 1971, as amended at 49 FR 46370, Nov. 26, 1984]



Sec. 410.673  Good cause for reopening a determination or decision.

    Good cause shall be deemed to exist where:

[[Page 616]]

    (a) New and material evidence is furnished after notice to the party 
to the initial determination;
    (b) A clerical error has been made in the computation of benefits;
    (c) There is an error as to such determination or decision on the 
face of the evidence on which such determination or decision is based.



Sec. 410.674  Finality of suspension of benefit payments for entire taxable year because of earnings.

    Notwithstanding the provisions in Sec. 410.672, a suspension of 
benefit payments for an entire taxable year because of earnings therein, 
may be reopened only within the time period and subject to the 
conditions provided in section 203(b)(1)(B) of the Social Security Act.



Sec. 410.675  Time limitation for revising finding suspending benefit payments for entire taxable year because of earnings.

    No determination of the Administration or decision of an 
Administrative Law Judge or the Appeals Council shall be revised after 
the expiration of the normal period for requesting reconsideration, 
hearing or review, with respect to such determination or decision (see 
Secs. 410.624, 410.631, 410.661, and 410.666) to correct a finding which 
suspends benefit payments for an entire taxable year because of earnings 
therein, unless the correction of such finding is permitted under 
section 203(h)(1)(B) of the Social Security Act.



Sec. 410.675a  Late completion of timely investigation.

    The Administration may revise a determination or decision after the 
applicable time period in Sec. 410.672(a) or Sec. 410.672(b) expires if 
the Administration begins an investigation to determine whether to 
revise the determination or decision before the applicable time period 
expires. The Administration may begin the investigation based either on 
a request by the party or an action by the Administration. The 
investigation is a process of gathering facts after a determination or 
decision has been reopened to determine if a revision of the 
determination or decision is applicable.
    (a) If the Administration has diligently pursued the investigation 
to its conclusion, the Administration may revise the determination or 
decision. The revision may be favorable or unfavorable to the party. 
Diligently pursued means that in light of the facts and circumstances of 
a particular case, the necessary action was undertaken and carried out 
as promptly as the circumstances permitted. Diligent pursuit will be 
presumed to have been met if the Administration concludes the 
investigation and if necessary, revises the determination or decision 
within 6 months from the date the Administration begins the 
investigation.
    (b) If the Administration has not diligently pursued the 
investigation to its conclusion, the administration will revise the 
determination or decision if a revision is applicable and if it will be 
favorable to the party. The Administration will not revise the 
determination or decision if it will be unfavorable to the party.

[49 FR 46370, Nov. 26, 1984]



Sec. 410.676  Notice of revision.

    (a) When any determination or decision is revised, as provided in 
Sec. 410.671 or Sec. 410.675, notice of such revision shall be mailed to 
the parties to such determination or decision at their last known 
addresses. The notice of revision which is mailed to the parties shall 
state the basis for the revised decision.
    (b) Where a determination of the Administration is revised under 
paragraph (a) of this section, the notice of revision shall inform the 
parties of their right to a hearing as provided in Sec. 410.678.
    (c)(1) Where an Administrative Law Judge or the Appeals Council 
proposes to revise a decision under paragraph (a) of this section and 
the revision would be based on evidence theretofore not included in the 
record on which the decision proposed to be revised was based, the 
parties shall be given notice of the proposal of the Administrative Law 
Judge or the Appeals Council, as the case may be, to revise such 
decision, and unless hearing is waived, a hearing with respect to such 
proposed revision shall be granted as provided in this subpart F.

[[Page 617]]

    (2) If a revised decision is appropriate, such decision shall be 
rendered by the Administrative Law Judge or the Appeals Council, as the 
case may be, on the basis of the entire record, including the additional 
evidence. If the decision is revised by an Administrative Law Judge, any 
party thereto may request review by the Appeals Council (Secs. 410.660 
and 410.661) or the Appeals Council may review the decision on its own 
motion (Sec. 410.662).



Sec. 410.677  Effect of revised determination.

    The revision of a determination or decision shall be final and 
binding upon all parties thereto unless a party authorized to do so (see 
Sec. 410.676) files a written request for a hearing with respect to a 
revised determination in accordance with Sec. 410.678 or a revised 
decision is reviewed by the Appeals Council as provided in this subpart 
F, or such revised determination or decision is further revised in 
accordance with Sec. 410.672.



Sec. 410.678  Time and place of requesting hearing on revised determination.

    The request for hearing shall be made in writing and filed at an 
office of the Social Security Administration, or with a presiding 
officer, or the Appeals Council, within 60 days after the date of 
receipt of notice of the revised determination. Upon the filing of such 
a request, a hearing with respect to such revision shall be held (see 
Secs. 410.631 through 410.653) and a decision made in accordance with 
the provisions of Sec. 410.654. For purposes of this section, the date 
of receipt of notice of the revised determination shall be presumed to 
be 5 days after the date of such notice, unless there is a reasonable 
showing to the contrary.

[41 FR 47918, Nov. 1, 1976]



Sec. 410.679  Finality of findings with respect to other claims for benefits based on the disability or death of a miner.

    Findings of fact made in a determination or decision in a claim by 
one party for benefits may be revised in determining or deciding another 
claim for benefits based on the disability or death of the same miner, 
even though such findings may not be revised in the former claim because 
of the provisions of Sec. 410.672.



Sec. 410.680  Imposition of reductions.

    The imposition of reductions constitutes an initial determination 
with respect to each month for which a reduction is imposed. A finding 
that a reduction is not to be imposed is an initial determination for 
each month with respect to which the circumstances upon which such 
finding was based remain unchanged. The suspension of benefits, pending 
a determination as to the applicability of a reduction equivalent to the 
amount of a deduction because of excess earnings under section 203(b) of 
the Social Security Act shall not, however, constitute an initial 
determination (see Sec. 410.615(a)).



Sec. 410.681  Change of ruling or legal precedent.

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



Sec. 410.682  General applicability.

    The provisions of Secs. 410.672, 410.673, and 410.679 to 410.681, 
inclusive, shall be applicable notwithstanding any provisions to the 
contrary in this subpart F.



Sec. 410.683  Certification of payment; determination or decision providing for payment.

    When a determination or decision has been made under any provision 
of Secs. 410.610 to 410.678, inclusive, to the effect that a payment or 
payments of benefits should be made to any person, the Administration 
shall, except as hereafter provided, certify to the U.S. Treasury 
Department the name and address of the person to be paid, the amount of 
the payment or payments and the time at which such payment or payments 
should be made.



Sec. 410.683a  [Reserved]



Sec. 410.683b  Transfer or assignment.

    The Administration shall not certify any amount for payment to an 
assignee or transferee of the person entitled to

[[Page 618]]

such payment under the Act, nor shall the Administration certify such 
amount for payment to any person claiming such payment by virtue of an 
execution, levy, attachment, garnishment, or other legal process or by 
virtue of any bankruptcy or insolvency proceeding against or affecting 
the person entitled to the payment under the Act.

[37 FR 20654, Sept. 30, 1972]



Sec. 410.684  Representation of party; appointment of representative.

    A party in an action leading to an initial or reconsidered 
determination, hearing, or review, as provided in Secs. 410.610 to 
410.678, inclusive, may appoint as his representative in any such 
proceeding only an individual who is qualified under Sec. 410.685 to act 
as a representative. Where the individual appointed by a party to 
represent him is not an attorney, written notice of the appointment must 
be given, signed by the party appointing the representative, and 
accepted by the representative appointed. The notice of appointment 
shall be filed at an office of the Administration, with a hearing 
examiner, or with the Appeals Council of the Administration, as the case 
may be. Where the representative appointed is an attorney, in the 
absence of information to the contrary, his representation that he has 
such authority, shall be accepted as evidence of the attorney's 
authority to represent a party.



Sec. 410.685  Qualifications of representative.

    (a) Attorney. Any attorney in good standing who (1) is admitted to 
practice before a court of a State, territory, district or insular 
possession or before the Supreme Court of the United States or an 
inferior Federal court, (2) has not been disqualified or suspended from 
acting as a representative in proceedings before the Social Security 
Administration, and (3) is not, pursuant to any provision of law, 
otherwise prohibited from acting as a representative, may be appointed 
as a representative in accordance with Sec. 410.684.
    (b) Person other than attorney. Any person (other than an attorney 
described in paragraph (a) of this section) who (1) is of good 
character, in good repute, and has the necessary qualifications to 
enable him to render valuable assistance to an individual in connection 
with his claim, (2) has not been disqualified or suspended from acting 
as a representative in proceedings before the Social Security 
Administration, and (3) is not, pursuant to any provision of law, 
otherwise prohibited from acting as a representative, may be appointed 
as a representative in accordance with Sec. 410.684.

[36 FR 23760, Dec. 14, 1971, as amended at 37 FR 17707, Aug. 30, 1972]



Sec. 410.686  Authority of representative.

    A representative, appointed and qualified as provided in 
Secs. 410.684 and 410.685, may make or give, on behalf of the party he 
represents, any request or notice relative to any proceeding before the 
Administration under Part B of title IV of the Act, including 
reconsideration, hearing and review, except that such representative may 
not execute a claim for benefits, unless he is a person designated in 
Sec. 410.222 as authorized to execute a claim. A representative shall be 
entitled to present or elicit evidence and allegations as to facts and 
law in any proceeding affecting the party he represents and to obtain 
information with respect to the claim of such party to the same extent 
as such party. Notice to any party of any administrative action, 
determination, or decision, or request to any party for the production 
of evidence may be sent to the representative of such party, and such 
notice or request shall have the same force and effect as if it had been 
sent to the party represented. (For fees to representatives for services 
performed before the Administration for an individual, see 
Sec. 410.686b.)

[37 FR 20654, Sept. 30, 1972]



Sec. 410.686a  Proceedings before a State or Federal court.

    (a) Representation of claimant in court proceeding. Any service 
rendered by any representative in any proceeding before any State or 
Federal court shall not be considered services in any proceeding before 
the Social Security Administration for purposes of Secs. 410.686 and 
410.686b. However, if the representative

[[Page 619]]

has also rendered services in connection with the claim in any 
proceeding before the Administration, as defined in Sec. 410.686e, he 
must specify what, if any, amount of the fee he desires to charge is for 
services performed before the Administration, and if he charges any fee 
for such services, he must file the petition and furnish all of the 
information required by Sec. 410.686c(a).
    (b) Attorney fee allowed by a Federal court. In any case where a 
Federal court in any proceeding under part B of title IV of the Act 
renders a judgment favorable to a claimant who was represented before 
the court by an attorney, and the court, pursuant to section 206(b) of 
the Social Security Act, allows to the attorney as part of its judgment 
a fee not in excess of 25 percent of the total of past-due benefits to 
which the claimant is entitled by reason of the judgment, the 
Administration may certify the amount of such fee for payment to such 
attorney out of, but not in addition to, the amount of the past-due 
benefits payable (see Sec. 410.686d(a)). No other fee may be certified 
for direct payment to such attorney for such representation.
    (c) Past-due benefits defined. The term past-due benefits as used in 
paragraph (b) of this section means the total accumulated amount of 
benefits payable under part B of title IV of the Act by reason of the 
court's judgment through the month prior to the month of the judgment 
favorable to the claimant who was represented by the attorney.

[37 FR 17707, Aug. 30, 1972]



Sec. 410.686b  Fee for services performed for an individual before the Social Security Administration.

    (a) General. A fee for services performed for an individual before 
the Social Security Administration in any proceeding under part B of 
title IV of the Act may be charged and received only as provided in 
paragraph (b) of this section.
    (b) Charging and receiving fee. An individual who desires to charge 
or receive a fee for services rendered for an individual in any 
proceeding under part B of title IV of the Act before the Administration 
(see Sec. 410.686e), and who is qualified under Sec. 410.685, must file 
a written petition therefor in accordance with Sec. 410.686c(a). The 
amount of the fee he may charge or receive, if any, shall be determined 
on the basis of the factors described in Sec. 410.686c(b) by an 
authorized official of the appropriate component of the Administration, 
where the services were concluded by an initial, reconsidered, or 
revised determination, or by the Bureau of Hearings and Appeals where 
there is a decision or action by a hearing examiner or the Appeals 
Council of the Social Security Administration, as the case may be. Every 
such fee which is charged or received must be approved as provided in 
this section and no fee shall be charged or received which is in excess 
of the amount so approved. This rule shall be applicable whether the fee 
is charged to or received from a party to the proceeding or someone 
else. Pursuant to section 206(a) of the Social Security Act, in the case 
of a representative qualified as an attorney under Sec. 410.685(a), the 
Administration may certify the amount of such fee, subject to the 
limitations in Sec. 410.686d(b), for payment out of, but not in addition 
to, the amount of past-due benefits payable.
    (c) Past-due benefits defined. The term past-due benefits as used in 
paragraph (b) of this section means the total accumulated amount of 
benefits payable under part B of title IV of the Act by reason of the 
favorable determination through the month prior to the month such 
determination is effectuated.
    (d) Notice of fee determination. Written notice of a fee 
determination made in accordance with paragraph (b) of this section 
shall be mailed to the representative and the claimant at their last 
known addresses. Such notice shall inform the parties of the amount of 
the fee authorized, the basis of the determination, the fact that the 
Administration assumes no responsibility for payment except that 
pursuant to section 206(a) of the Social Security Act the Administration 
may certify payment to an attorney, and that each party may request an 
administrative review of the determination within 30 days of the date of 
the notice.

[[Page 620]]

    (e) Administrative review of fee determination--(1) Request timely 
filed. Administrative review of a fee determination will be granted if 
either the representative or the claimant files a written request for 
such review at an office of the Social Security Administration within 30 
days after the date of the notice of the fee determination. The party 
requesting the review shall send a copy of the request to the other 
party. An authorized official of the Social Security Administration who 
did not participate in the fee determination in question will review the 
determination. Written notice of the decision made on the administrative 
review shall be mailed to the representative and the claimant at their 
last known addresses.
    (2) Request not timely filed. Where the representative or the 
claimant files a request for administrative review, in accordance with 
paragraph (e)(1) of this subsection, but files such request more than 30 
days after the date of the notice of the fee determination, the person 
making the request shall state in writing the reasons why it was not 
filed within the 30-day period. The Social Security Administration will 
grant the review only if it determines that there was good cause for not 
filing the request timely. For purposes of this section, good cause is 
defined as any circumstance or event which would prevent the 
representative or the claimant from filing the request for review within 
such 30-day period or would impede his efforts to do so. Examples of 
such circumstances include the following:
    (i) The representative or claimant was seriously ill or had a 
physical or mental impairment and such illness prevented him from 
contacting the Social Security Administration in person or in writing;
    (ii) There was a death or serious illness in the individual's 
family;
    (iii) Pertinent records were destroyed by fire or other accidental 
cause;
    (iv) The representative or claimant was furnished incorrect or 
incomplete information by the Social Security Administration about his 
right to request review;
    (v) The individual failed to receive timely notice of the fee 
determination;
    (vi) The individual transmitted the request to another government 
agency in good faith within such 30-day period and the request did not 
reach the Social Security Administration until after such period had 
expired.

[37 FR 17708, Aug. 30, 1972, as amended at 41 FR 10425, Mar. 11, 1976]



Sec. 410.686c  Petition for approval of fee.

    (a) Filing of petition. In accordance with Sec. 410.686b, to obtain 
approval of a fee for services performed before the Social Security 
Administration in any proceeding under the Act, a representative, upon 
completion of the proceedings in which he rendered services, must file 
at an office of the Social Security Administration a written petition 
which shall contain the following information:
    (1) The dates his services began and ended;
    (2) An itemization of services rendered by him in a proceeding under 
the Act, with the amount of time spent in hours, or parts thereof, on 
each type of service;
    (3) The amount of the fee he desires to charge for services 
performed;
    (4) The amount of fee requested or charged for services rendered in 
the same matter before any State or Federal court;
    (5) The amount and itemization of expenses incurred for which 
reimbursement has been made or is expected;
    (6) The special qualifications which enabled him to render valuable 
serv-ices to the claimant (this requirement does not apply where the 
representative is an attorney); and
    (7) A statement showing that a copy of the petition was sent to the 
person represented.
    (b) Factors considered in evaluating a petition for fee. In 
evaluating a request for approval of a fee, the purpose of the coal 
miner's benefits program--to provide a measure of economic security for 
the beneficiaries thereof--will be considered, together with the 
following factors:
    (1) The services performed (including type of service);
    (2) The complexity of the case;
    (3) The level of skill and competence required in rendition of the 
services;

[[Page 621]]

    (4) The amount of time spent on the case;
    (5) The results achieved. (While consideration is always to be given 
to the amount of benefits, if any, which are payable in a case, the 
amount of fee will not be based on the amount of such benefits alone but 
on a consideration of all of the factors listed in this section. The 
benefits payable in a given claim are governed by specific statutory 
provisions and by the occurrence of termination, deduction, or 
nonpayment events specified in the law, factors which are unrelated to 
efforts of the representative. In addition, the amount of accrued 
benefits payable in a given claim is affected by the length of time that 
has elapsed since the claimant became entitled to benefits.);
    (6) The level of administrative review to which the claim was 
carried within the Social Security Administration and the level of such 
review at which the representative entered the proceedings; and
    (7) The amount of the fee requested for services rendered, excluding 
the amount of any expenses incurred, but including any amount previously 
authorized or requested.
    (c) Time limit for filing petition for approval of attorney fee. In 
order for an attorney to receive direct payment of a fee authorized by 
the Social Security Administration from a claimant's past-due benefits 
(see Sec. 410.686d(b)), the petition for approval of a fee, or written 
notice of the intent to file a petition, should be filed with the Social 
Security Administration within 60 days of the date the notice of the 
determination favorable to the claimant is mailed. Where no such 
petition is filed within 60 days after the date such notice is mailed, 
written notice shall be sent to the attorney and the claimant, at their 
last known addresses, that the Social Security Administration will 
certify for payment to the claimant all the past-due benefits unless the 
attorney files within 20 days from the date of such notice a written 
petition for approval of a fee pursuant to paragraphs (a) and (b) of 
this section, or a written request for an extension of time. The 
attorney shall send to the claimant a copy of any request for an 
extension of time. Where the petition is not filed within this time, or 
by the last day of any extension approved, the Social Security 
Administration may certify the funds for payment to the claimant. Any 
fee charged thereafter remains subject to Social Security Administration 
approval but collection of any such approved fee shall be a matter 
between the attorney and his client.

[37 FR 17708, Aug. 30, 1972; 37 FR 18525, Sept. 13, 1972, as amended at 
41 FR 10425, Mar. 11, 1976]



Sec. 410.686d  Payment of fees.

    (a) Fees allowed by a Federal court. Subject to the limitations in 
Sec. 410.686a (b), the Administration shall certify for payment direct 
to attorneys, out of past-due benefits as defined in Sec. 410.686a(c), 
the amount of fee allowed by a Federal court in a proceeding under part 
B of title IV of the Act.
    (b) Fees authorized by the Social Security Administration--(1) 
Attorneys. Except as provided in Sec. 410.686c(c), in any case where the 
Social Security Administration makes a determination favorable to a 
claimant who was represented by an attorney as defined in 
Sec. 410.685(a) in a proceeding before the Social Security 
Administration and as a result of such determination past-due benefits, 
as defined in Sec. 410.686b (c), are payable, the Social Security 
Administration shall certify for payment to the attorney, out of such 
benefits, whichever of the following is the smallest:
    (i) Twenty-five percent of the total of such past-due benefits;
    (ii) The amount of attorney's fee set by the Social Security 
Administration, or
    (iii) The amount agreed upon between the attorney and the claimant.
    (2) Persons other than attorneys. The Administration assumes no 
responsibility for the payment of any fee which a representative as 
defined in Sec. 410.685(b) (person other than an attorney) has been 
authorized to charge in accordance with the provisions of Sec. 410.686b 
and will not deduct such fee from benefits payable under the Act to any 
beneficiary.
    (c) Responsibility of the Social Security Administration. The Social 
Security Administration assumes no responsibility for the payment of a 
fee based on a revised determination where the request

[[Page 622]]

for administrative review was not filed timely. (See paragraph (b) of 
this section for payment of attorney fees authorized by the Social 
Security Administration.)

[37 FR 17708, Aug. 30, 1972, as amended at 41 FR 10426, Mar. 11, 1976]



Sec. 410.686e  Services rendered for an individual in a proceeding before the Administration under Part B of title IV of the Act.

    Services rendered for an individual in a proceeding before the 
Administration under part B of title IV of the Act consist of services 
performed for an individual in connection with any claim before the 
Secretary of Health, Education, and Welfare under part B of title IV of 
the Act, including any services in connection with any asserted right 
calling for an initial or reconsidered determination by the 
Administration, and a decision or action by a hearing examiner or by the 
Appeals Council of the Bureau of Hearings and Appeals of the 
Administration, whether such determination, decision, or action is 
rendered before or after remand of a claim by a court. Such services 
include, but are not limited to, services in connection with a claim for 
benefits; a request for modification of the amount of benefits; the 
reinstatement of benefits; proof of support; and proof of employment as 
a coal miner.

[37 FR 17708, Aug. 30, 1972]



Sec. 410.687  Rules governing the representation and advising of claimants and parties.

    No attorney or other representative shall:
    (a) With intent to defraud, in any matter willfully and knowingly 
deceive, mislead, or threaten by word, circular, letter, or 
advertisement, either oral or written, or any claimant or prospective 
claimant or beneficiary with respect to benefits or any other initial or 
continued right under the Act; or
    (b) Knowingly charge or collect, or make any agreement to charge or 
collect, directly or indirectly, any fee in connection with any claim 
except under the circumstances prescribed in Sec. 410.686b, or knowingly 
charge, demand, receive, or collect for services rendered before a 
Federal court in connection with a claim under part B of title IV of the 
Act, any amount in excess of that allowed by a court as described in 
Sec. 410.686a(b).
    (c) Knowingly make or participate in the making or presentation of 
any false statement, representation, or claim as to any material fact 
affecting the right of any person to benefits under part B of title IV 
of the Act, or as to the amount of any benefits; or
    (d) Divulge, except as may be authorized by regulations now or 
hereafter prescribed by the Secretary, any information furnished or 
disclosed to him by the Administration relating to the claim or 
prospective claim of another person (see Sec. 410.120).

[37 FR 17709, Aug. 30, 1972]



Sec. 410.687a  Effective date.

    The provisions of Secs. 410.686a, 410.686b, 410.686c, 410.686d, and 
410.686e, shall be effective upon publication in the Federal Register 
(8-31-72), with respect to all claims processed thereafter, and shall 
apply to all legal services rendered in connection with those claims for 
which a fee has not been fully paid before this effective date, 
notwithstanding the fact that fee contracts for such services may have 
been entered into, or services rendered, before this effective date.

[37 FR 17709, Aug. 30, 1972]



Sec. 410.688  Disqualification or suspension of an individual from acting as a representative in proceedings before the Administration.

    Whenever it appears that an individual has violated any of the rules 
in Sec. 410.687, or has been convicted of a violation under section 206 
of the Social Security Act, or has otherwise refused to comply with the 
Secretary's rules and regulations governing representation of claimants 
before the Administration, the Deputy Commissioner, or the Director (or 
Deputy Director) of the Bureau of Retirement and Survivors Insurance of 
the Administration may institute proceedings as herein provided to 
suspend or disqualify such

[[Page 623]]

individual from acting as a representative in proceedings before the 
Administration.

[37 FR 17709, Aug. 30, 1972]



Sec. 410.689  Notice of charges.

    The Deputy Commissioner, or the Director (or Deputy Director) of the 
Bureau of Retirement and Survivors Insurance of the Administration will 
prepare a notice containing a statement of charges that constitutes the 
basis for the proceeding against the individual. This notice will be 
delivered to the individual charged, either by certified or registered 
mail to his last known address or by personal delivery, and will advise 
the individual charged to file an answer, within 30 days from the date 
the notice was mailed, or was delivered to him personally, indicating 
why he should not be suspended or disqualified from acting as a 
representative before the Administration. This 30-day period may be 
extended for good cause shown, by the Deputy Commissioner, or the 
Director (or Deputy Director) of the Bureau of Retirement and Survivors 
Insurance. The answer must be in writing under oath (or affirmation) and 
filed with the Social Security Administration, Bureau of Hearings and 
Appeals, Post Office Box 2518, Washington, DC 20013, with a copy to the 
Bureau of Retirement and Survivors Insurance, 6401 Security Boulevard, 
Baltimore, MD 21235, within the prescribed time limitation. If an 
individual charged does not file an answer within the time prescribed, 
he shall not have the right to present evidence. However, see 
Sec. 410.692(g) relating to statements with respect to sufficiency of 
the evidence upon which the charges are based or challenging the 
validity of the proceedings.

[36 FR 23760, Dec. 14, 1971, as amended at 37 FR 17709, Aug. 30, 1972]



Sec. 410.690  Withdrawal of charges.

    If an answer is filed or evidence is obtained that establishes, to 
the satisfaction of the Deputy Commissioner, or the Director (or Deputy 
Director) of the Bureau of Retirement and Survivors Insurance of the 
Administration, that reasonable doubt exists about whether the 
individual charged should be suspended or disqualified from acting as a 
representative before the Administration, the charges may be withdrawn. 
The notice of withdrawal shall be mailed to the individual charged at 
his last known address.



Sec. 410.691  Referral to Bureau of Hearings and Appeals for hearing and decision.

    If action is not taken to withdraw the charges before the expiration 
of 15 days after the time within which an answer may be filed, the 
record of the evidence in support of the charges shall be referred to 
the Bureau of Hearings and Appeals of the Administration with a request 
for a hearing and a decision on the charges.



Sec. 410.692  Hearing on charges.

    (a) Hearing officer. Upon receipt of the notice of charges, the 
record, and the request for hearing (see Sec. 410.691), the Director, 
Bureau of Hearings and Appeals of the Administration or his delegate 
shall designate an Administrative Law Judge to act as a hearing officer 
to hold a hearing on the charges. No hearing officer shall conduct a 
hearing in a case in which he is prejudiced or partial with respect to 
any party or where he has any interest in the matter pending for 
decision before him. Notice of any objection which a party to the 
hearing may have to the hearing officer who has been designated to 
conduct the hearing shall be made at the earliest opportunity. The 
hearing officer shall consider the objection(s) and shall, in his 
discretion, either proceed with the hearing or withdraw. If the hearing 
officer withdraws, another hearing officer shall be designated as 
provided in this section to conduct the hearing. If the hearing officer 
does not withdraw, the objecting party may, after the hearing, present 
his objections to the Appeals Council as reason why he believes the 
hearing officer's decision should be revised or a new hearing held 
before another hearing officer.
    (b) Time and place of hearing. The hearing officer shall notify the 
individual charged and the Deputy Commissioner, or the Director (or 
Deputy Director) of the Bureau of Retirement

[[Page 624]]

and Survivors Insurance of the Administration, of the time and place for 
a hearing on the charges. The notice of the hearing shall be mailed to 
the individual charged at his last known address and to the Deputy 
Commissioner, or the Director (or Deputy Director) of the Bureau of 
Retirement and Survivors Insurance, not less than 20 days prior to the 
date fixed for the hearing.
    (c) Change of time and place for hearing. The hearing officer may 
change the time and place for the hearing (see paragraph (b) of this 
section) either on his own motion or at the request of a party for good 
cause shown. The hearing officer may adjourn or postpone the hearing, or 
he may reopen the hearing for the receipt of additional evidence at any 
time prior to the mailing of notice of the decision in the case (see 
Sec. 410.693). Reasonable notice shall be given to the parties of any 
change in the time or place of hearing or of any adjournment or 
reopening of the hearing.
    (d) Parties. A person against whom charges have been preferred under 
the provisions of Sec. 410.688 shall be a party to the hearing. The 
Deputy Commissioner, or the Director (or Deputy Director) of the Bureau 
of Retirement and Survivors Insurance of the Administration, shall also 
be a party to the hearing.
    (e) Subpenas. Any party to the hearing may request the hearing 
officer or a member of the Appeals Council to issue subpenas for the 
attendance and testimony of witnesses and for the production of books, 
records, correspondence, papers, or other documents which are relevant 
and material to any matter in issue at the hearing. The hearing officer 
may on his own motion issue subpenas for the same purposes when he deems 
such action reasonably necessary for the full presentation of the facts. 
Any party who desires the issuance of a subpena shall, not less than 5 
days prior to the time fixed for the hearing, file with the hearing 
officer a written request therefor, designating the witnesses or 
documents to be produced, and describing the address or location thereof 
with sufficient particularity to permit such witnesses or documents to 
be found. The request for a subpena shall state the pertinent facts 
which the party expects to establish by such witness or document and 
whether such facts could be established by other evidence without the 
use of a subpena. Subpenas, as provided for above, shall be issued in 
the name of the Secretary of Health, Education, and Welfare, and the 
Social Security Administration shall pay the cost of the issuance and 
the fees and mileage of any witness so subpenaed, as provided in section 
205(d) of the Social Security Act.
    (f) Conduct of the hearing. The hearing shall be open to the parties 
and to such other persons as the hearing officer or the individual 
charged deems necessary or proper. The hearing officer shall inquire 
fully into the matters at issue and shall receive in evidence the 
testimony of witnesses and any documents which are relevant and material 
to such matters: Provided, however, That if the individual charged has 
filed no answer he shall have no right to present evidence but in the 
discretion of the hearing officer may appear for the purpose of 
presenting a statement of his contentions with regard to the sufficiency 
of the evidence or the validity of the proceedings upon which his 
suspension or disqualification, if it occurred, would be predicated or, 
in his discretion, the hearing officer may make or recommend a decision 
(see Sec. 410.693) on the basis of the record referred in accordance 
with Sec. 410.691. If the individual has filed an answer and if the 
hearing officer believes that there is relevant and material evidence 
available which has not been presented at the hearing, the hearing 
officer may at any time prior to the mailing of notice of the decision, 
or submittal of a recommended decision, reopen the hearing for the 
receipt of such evidence. The order in which the evidence and the 
allegations shall be presented and the conduct of the hearing shall be 
at the discretion of the hearing officer.
    (g) Evidence. Evidence may be received at the hearing, subject to 
the provision herein, even though inadmissible under the rules of 
evidence applicable to court procedure. The hearing officer shall rule 
on the admissibility of evidence.

[[Page 625]]

    (h) Witnesses. Witnesses at the hearing shall testify under oath or 
affirmation. The witnesses of a party may be examined by such party or 
by his representative, subject to interrogation by the other party or by 
his representative. The hearing officer may ask such questions as he 
deems necessary. He shall rule upon any objection made by either party 
as to the propriety of any question.
    (i) Oral and written summation. The parties shall be given, upon 
request, a reasonable time for the presentation of an oral summation and 
for the filing of briefs or other written statements of proposed 
findings of fact and conclusions of law. Copies of such briefs or other 
written statements shall be filed in sufficient number that they may be 
made available to any party in interest requesting a copy and to any 
other party designated by the Appeals Council.
    (j) Record of hearing. A complete record of the proceedings at the 
hearing shall be made and transcribed in all cases.
    (k) Representation. The individual charged may appear in person and 
he may be represented by counsel or other representative.
    (l) Failure to appear. If after due notice of the time and place for 
the hearing, a party to the hearing fails to appear and fails to show 
good cause as to why he could not appear, such party shall be considered 
to have waived his right to be present at the hearing. The hearing 
officer may hold the hearing so that the party present may offer 
evidence to sustain or rebut the charges.
    (m) Dismissal of charges. The hearing officer may dismiss the 
charges in the event of the death of the individual charged.
    (n) Cost of transcript. On the request of a party, a transcript of 
the hearing before the hearing officer will be prepared and sent to the 
requesting party upon the payment of cost, or if the cost is not readily 
determinable, the estimated amount, thereof, unless for good cause such 
payment is waived.

[36 FR 23760, Dec. 14, 1971, as amended at 37 FR 17709, Aug. 30, 1972]



Sec. 410.693  Decision by hearing officer.

    (a) General. As soon as practicable after the close of the hearing, 
the hearing officer shall issue a decision (or certify the case with a 
recommended decision to the Appeals Council for decision under the rules 
and procedures described in Secs. 410.657 through 410.659) which shall 
be in writing and contain findings of fact and conclusions of law. The 
decision shall be based upon the evidence of record. If the hearing 
officer finds that the charges have been sustained, he shall either:
    (1) Suspend the individual for a specified period of not less than 1 
year, nor more than 5 years, from the date of the decision, or
    (2) Disqualify the individual from further practice before the 
Administration until such time as the individual may be reinstated under 
Sec. 410.699.

A copy of the decision shall be mailed to the individual charged at his 
last known address and to the Deputy Commissioner, or the Director (or 
Deputy Director) of the Bureau of Retirement and Survivors Insurance, 
together with notice of the right of either party to request the Appeals 
Council to review the decision of the hearing officer.
    (b) Effect of hearing officer's decision. The hearing officer's 
decision shall be final and binding unless reversed or modified by the 
Appeals Council upon review (see Sec. 410.697).
    (1) If the final decision is that the individual is disqualified 
from practice before the Administration, he shall not be permitted to 
represent an individual in a proceeding before the Administration until 
authorized to do so under the provisions of Sec. 410.699.
    (2) If the final decision suspends the individual for a specified 
period of time, he shall not be permitted to represent an individual in 
a proceeding before the Administration during the period of suspension 
unless authorized to do so under the provisions of Sec. 410.699.



Sec. 410.694  Right to request review of the hearing officer's decision.

    (a) General. After the hearing officer has issued a decision, either 
of the parties (see Sec. 410.692) may request the Appeals Council to 
review the decision.

[[Page 626]]

    (b) Time and place of filing request for review. The request for 
review shall be made in writing and filed with the Appeals Council 
within 30 days from the date of mailing the notice of the hearing 
officer's decision, except where the time is extended for good cause. 
The requesting party shall certify that a copy of the request for review 
and of any documents that are submitted therewith (see Sec. 410.695) 
have been mailed to the opposing party.



Sec. 410.695  Procedure before Appeals Council on review of hearing officer's decision.

    The parties shall be given, upon request, a reasonable time to file 
briefs or other written statements as to fact and law and to appear 
before the Appeals Council for the purpose of presenting oral argument. 
Any brief or other written statement of contentions shall be filed with 
the Appeals Council, and the presenting party shall certify that a copy 
has been mailed to the opposing party.



Sec. 410.696  Evidence admissible on review.

    (a) General. Evidence in addition to that introduced at the hearing 
before the hearing officer may not be admitted except where it appears 
to the Appeals Council that the evidence is relevant and material to an 
issue before it, and subject to the provisions in this section.
    (b) Individual charged filed answer. Where it appears to the Appeals 
Council that additional relevant material is available and the 
individual charged filed an answer to the charges (see Sec. 410.689), 
the Appeals Council shall require the production of such evidence and 
may designate a hearing officer or member of the Appeals Council to 
receive such evidence. Before additional evidence is admitted into the 
record, notice that evidence will be received with respect to certain 
issues shall be mailed to the parties, and each party shall be given a 
reasonable opportunity to comment on such evidence and to present other 
evidence which is relevant and material to the issues unless such notice 
is waived.
    (c) Individual charged did not file answer. Where the individual 
charged filed no answer to the charges (see Sec. 410.689), evidence in 
addition to that introduced at the hearing before the hearing officer 
may not be admitted by the Appeals Council.



Sec. 410.697  Decision by Appeals Council on review of hearing officer's decision.

    The decision of the Appeals Council shall be based upon evidence 
received into the hearing record (see Sec. 410.692(j)) and such further 
evidence as the Appeals Council may receive (see Sec. 410.696) and shall 
either affirm, reverse, or modify the hearing officer's decision. The 
Appeals Council, in modifying a hearing officer's decision suspending 
the individual for a specified period shall in no event reduce a period 
of suspension to less than 1 year, or in modifying a hearing officer's 
decision to disqualify an individual shall in no event impose a period 
of suspension of less than 1 year. Where the Appeals Council affirms or 
modifies a hearing officer's decision, the period of suspension or 
disqualification shall be effective from the date of the Appeals 
Council's decision. Where a period of suspension or disqualification is 
initially imposed by the Appeals Council, such suspension or 
disqualification shall be effective from the date of the Appeals 
Council's decision. The decision of the Appeals Council will be in 
writing and a copy of the decision will be mailed to the individual at 
his last known address and to the Deputy Commissioner, or the Director 
(or Deputy Director) of the Bureau of Retirement and Survivors 
Insurance.

[36 FR 23760, Dec. 14, 1971, as amended at 37 FR 17709, Aug. 30, 1972]



Sec. 410.698  Dismissal by Appeals Council.

    The Appeals Council may dismiss a request for the review of any 
proceedings instituted under Sec. 410.688 pending before it in any of 
the following circumstances:
    (a) Upon request of party. Proceedings pending before the Appeals 
Council may be discontinued and dismissed upon written application of 
the party or parties who filed the request for review provided there is 
no party who objects to discontinuance and dismissal.

[[Page 627]]

    (b) Death of party. Proceedings before the Appeals Council may be 
dismissed upon death of a party against whom charges have been 
preferred.
    (c) Request for review not timely filed. A request for review of a 
hearing officer's decision shall be dismissed when the party has failed 
to file a request for review within the time specified in Sec. 410.694 
and such time is not extended for good cause.



Sec. 410.699  Reinstatement after suspension or disqualification.

    (a) General. An individual shall be automatically reinstated to 
serve as representative before the Administration at the expiration of 
any period of suspension. In addition, after 1 year from the effective 
date of any suspension or disqualification, an individual who has been 
suspended or disqualified from acting as a representative in proceedings 
before the Administration may petition the Appeals Council for 
reinstatement prior to the expiration of a period of suspension or 
following a disqualification order. The petition for reinstatement shall 
be accompanied by any evidence the individual wishes to submit. The 
Appeals Council shall notify the Deputy Commissioner, or the Director 
(or Deputy Director) of the Bureau of Retirement and Survivors 
Insurance, of the receipt of the petition and grant him 30 days in which 
to present a written report of any experiences which the Administration 
may have had with the suspended or disqualified individual during the 
period subsequent to the suspension or disqualification. A copy of any 
such report shall be made available to the suspended or disqualified 
individual.
    (b) Basis of action. A request for revocation of a suspension or a 
disqualification shall not be granted unless the Appeals Council is 
reasonably satisfied that the petitioner is not likely in the future to 
conduct himself contrary to the provisions of the rules and regulations 
of the Administration.
    (c) Notice. Notice of the decision on the request for reinstatement 
shall be mailed to the petitioner and a copy shall be mailed to the 
Deputy Commissioner, or the Director (or Deputy Director) of the Bureau 
of Retirement and Survivors Insurance.
    (d) Effect of denial. If a petition for reinstatement is denied, a 
subsequent petition for reinstatement shall not be considered prior to 
the expiration of 1 year from the date of notice of the previous denial.



Sec. 410.699a  Penalties for fraud.

    The penalty for any person found guilty of willfully making any 
false or misleading statement or representation for the purpose of 
obtaining any benefit or statement or payment under this part shall be:
    (a) A fine of up to $1,000, or
    (b) Imprisonment for not more than 1 year, or
    (c) Both (a) and (b).

(Sec. 411, Federal Coal Mine Health and Safety Act of 1969, as amended; 
85 Stat. 793, 30 U.S.C. 921)

[43 FR 34781, Aug. 7, 1978]



 Subpart G--Rules for the Review of Denied and Pending Claims Under the 
             Black Lung Benefits Reform Act (BLBRA) of 1977

    Authority:  Sec. 411, 82 Stat. 793 and 30 U.S.C. 902.

    Source:  43 FR 34781, Aug. 7, 1978, unless otherwise noted.



Sec. 410.700  Background.

    (a) The Black Lung Benefits Reform Act of 1977 broadens the 
definitions of miner and pneumoconiosis and modifies the evidentiary 
requirements necessary to establish entitlement to black lung benefits. 
Section 435 of the Black Lung Benefits Reform Act of 1977 requires that 
each claimant whose claim has been denied or is pending be given the 
opportunity to have the claim reviewed under this Act. The purpose of 
the subpart G is to explain the changes and the procedures, and rules 
which are applicable with regard to the Social Security Administration's 
review of part B claims in light of the BLBRA of 1977.
    (b) Two Government agencies are responsible for the review of 
claims. The Department of Health, Education, and Welfare, Social 
Security Administration, upon the request of the claimant, is 
responsible for the review of claims

[[Page 628]]

filed with the Social Security Administration under part B of title IV 
of the Federal Coal Mine Health and Safety Act of 1969, as amended, 
except those claims filed under section 415 of the Act. The Department 
of Labor, Office of Workers' Compensation Programs is responsible for 
the review of the following claims:
    (1) Claims filed under part C of title IV of the Federal Coal Mine 
Health and Safety Act of 1969, as amended;
    (2) Part B claims filed under section 415 of the Act; and
    (3) Those part B claims for which the claimant elects review by DOL. 
The Department of Labor regulations explaining the review procedures for 
these claims are published at 20 CFR part 727.



Sec. 410.701  Jurisdiction for determining entitlement under Part B.

    In order for the Social Security Administration to approve a claim 
under this subpart G, the evidence on file must show, in a living 
miner's claim, that the miner was totally disabled due to pneumoconiosis 
prior to July 1, 1973. In a survivor's claim, the evidence must show (1) 
that the deceased miner was either totally disabled due to 
pneumoconiosis at the time of death, or that death was due to 
pneumoconiosis, and that death occurred prior to January 1, 1974, or (2) 
that the miner was entitled to part B benefits at the time of death, and 
that the survivor filed for benefits either within 6 months of such 
death or before January 1, 1974, whichever is later, regardless of when 
such death occurred.



Sec. 410.702  Definitions and terms.

    The following definitions shall apply with regard to review under 
this subpart G.
    (a) Denied Claim defined. Denied claim means: (1) Any claim that was 
filed with the Social Security Administration under part B of title IV 
of the Act; and
    (2) Entitlement to benefits was not established; and
    (3) The time limit for any further appeal has expired.
    (b) Pending Claim defined. Pending claim means: (1) Any claim that 
was filed with the Social Security Administration under part B of title 
IV of the Act; and
    (2) Entitlement to benefits has not been established; and
    (3) The time limit for any appeal has not expired or action is still 
pending on an appeal which was requested timely, or on which an 
extension of time to request appeal has been granted.
    (c) Withdrawn Claim defined. Withdrawn claim means: Any claim that 
was filed with the Social Security Administration under part B of title 
IV of the Act which has been previously withdrawn at the request of the 
claimant. This claim shall not be considered a pending or denied claim.
    (d) Pneumoconiosis defined. In addition to the definition of 
pneumoconiosis contained in Secs. 410.110(o) and 410.401(b), 
pneumoconiosis means a chronic dust disease of the lung and its 
sequelae, including respiratory and pulmonary impairments, arising out 
of coal mine employment.
    (e) Evidence on file defined. Evidence on file is information in the 
black lung claims file, in the social security title II and title XVI 
disability claims files, or in a person's earnings record, as of March 
1, 1978.
    (f) Determining total disability--the working miner. A miner shall 
be considered totally disabled when pneumoconiosis prevents the miner 
from engaging in gainful employment requiring the skills and abilities 
comparable to those of any employment in a mine or mines in which he or 
she previously engaged with some regularity and over a substantial 
period of time.
    (1) In the case of a living miner if there are changed circumstances 
of employment indicative of reduced ability to perform the miner's usual 
coal mine work, such miner's employment in a mine shall not be used as 
conclusive evidence that the miner is not totally disabled.
    (2) A deceased miner's employment in a mine at the time of death 
shall not be used as conclusive evidence that the miner was not totally 
disabled.
    (3) Any miner not totally disabled by complicated pneumoconiosis who 
has been determined to be eligible for benefits as a result of a claim 
filed while

[[Page 629]]

the miner is engaged in coal mine employment shall be entitled to such 
benefits if his or her employment terminates within one year after the 
date the determination becomes final.
    (g) Survivor entitlement for deceased miner--25 years or more coal 
mine employment. If a miner died on or before March 1, 1978, and had 
worked for 25 years or more in one or more coal mines before June 30, 
1971, the eligible survivors of the miner shall be enititled to the 
payment of benefits at the same rate as that under section 412(a)(2) of 
the Act, unless it is established that at the time of the miner's death 
the miner was not partially or totally disabled due to pneumoconiosis.
    (h) Miner defined. A miner is any person who works or has worked in 
or around a coal mine or coal preparation facility in the extraction, 
preparation or transportation of coal, and any person who works or has 
worked in coal mine construction or maintenance in or around a coal mine 
or coal preparation facility. A coal mine construction or transportation 
worker shall be considered a miner to the extent such individual is or 
was exposed to coal dust as a result of his or her employment in or 
around a coal mine or preparation facility. In the case of an individual 
employed in coal transportation or coal mine construction, there shall 
be a rebuttable presumption that such individual was exposed to coal 
dust during all periods of such employment occurring in or around a coal 
mine or coal preparation facility for purposes of determining whether 
such individual is or was a miner. The presumption may be rebutted by 
evidence which demonstrates that the individual was not regularly 
exposed to coal dust during his or her employment in or around a coal 
mine or preparation facility or that the individual was not regularly 
employed in or around a coal mine or coal preparation facility. An 
individual employed by a coal mine operator, regardless of the nature of 
such individual's employment, shall be considered a miner unless such 
individual was not employed in or around a coal mine or coal preparation 
facility. A person who is or was a self employed miner, independent 
contractor, or coal mine worker, as described in this paragraph, shall 
be considered a miner for the purposes of this subpart.
    (i) X-ray rereading prohibition. Where there is other evidence, such 
as the kind in Sec. 410.414(c), that a miner has a pulmonary or 
respiratory impairment, a board certified or board eligible 
radiologist's interpretation of a chest X-ray taken by a radiologist or 
qualified technician will be accepted if: (1) It is of a quality 
sufficient to demonstrate the presence of pneumoconiosis and; (2) it was 
submitted in support of a claim, unless it is established that the claim 
has been fraudulently represented.
    (j) Acceptance of autopsy reports. Unless there is reason to believe 
that an autopsy report is not accurate, or that the condition of the 
miner is being fraudulently misrepresented, an autopsy report concerning 
the presence of pneumoconiosis and the stage of advancement of the 
disease will be accepted if it is already on file.
    (k) Acceptance of affidavits-miner deceased. Where there is no 
medical evidence or other relevant evidence (see Sec. 410.414(c)) to 
establish total disability or death due to pneumoconiosis of a deceased 
miner, affidavits from the spouse and other individuals having knowledge 
of the deceased miner's physical condition will be sufficient to 
establish total disability or death due to pneumoconiosis if they are 
already on file.

[43 FR 34781, Aug. 7, 1978, as amended at 44 FR 10058, Feb. 16, 1979]



Sec. 410.703  Adjudicatory rules for determining entitlement to benefits.

    (a) General. Section 402(f)(2) of the Act provides that the criteria 
and standards to be applied to a claim reviewed under section 435 of the 
Act, for determining whether a miner is or was totally disabled due to 
pneumoconiosis or died due to pneumoconiosis, shall be no more 
restrictive than the criteria applicable to a claim filed with the 
Social Security Administration on or before June 30, 1973, under part B 
of title IV of the Act. In keeping with this provision, the interim 
evidentiary rules and disability criteria contained in Sec. 410.490 will 
be applicable for this review.

[[Page 630]]

    (b) Payment provisions. The DOL has sole responsibility for 
assigning liability for payment purposes. The DOL regulations relating 
to the amount of benefits payable, the manner of payment and all other 
provisions published at 20 CFR part 725 shall be applicable to a claim 
approved under this subpart.
    (c) Date from which benefits are payable. Benefits for claims 
reviewed under this subpart G for which entitlement to benefits is 
established under the BLBRA of 1977 are payable on a retroactive basis 
for a period which begins no earlier than January 1, 1974.



Sec. 410.704  Review procedures.

    (a) Notification. Each claimant who has filed a claim for benefits 
under part B of title IV of the Act, and whose claim is either pending 
before the Social Security Administration or the courts or has been 
denied on or before March 1, 1978, will be mailed a notice advising 
that, upon the request of the claimant, the claim shall be:
    (1) Reviewed by the DHEW, Social Security Administration or DOL, 
Office of Workers' Compensation Programs to see whether entitlement to 
benefits may be established under the BLBRA of 1977; and
    (2) If review by the Social Security Administration is requested, 
the review will be made on the basis of the evidence on file as of March 
1, 1978; and
    (3) If review by the Office of Workers' Compensation Programs is 
requested, the Office of Workers' Compensation Programs will provide an 
opportunity for additional evidence to be submitted for consideration 
prior to a determination.
    (b) Where the claimant is mentally incompetent or physically 
incapable, or is a minor, review of the claim may be elected by those 
people described in Sec. 410.222. Where the original claimant is 
deceased, any person who may be entitled to benefits as a survivor of 
the claimant, including those described in Sec. 410.570(c), may elect 
review of the claim.
    (c) Effect of review of a pending part B claim under the BLBRA of 
1977 on the pending claim. Part B claims pending before the Social 
Security Administration or the courts will continue to be processed 
under the old law at the same time that these claims are being reviewed 
by the Social Security Administration, at the claimant's request, under 
the BLBRA of 1977. Claimants would then have two separate and 
independent claims for benefits pending. Where claims for benefits are 
reviewed, upon request, under this subpart G and it is determined that 
entitlement to benefits is established under the BLBRA of 1977, part C 
benefits may be paid back to January 1, 1974. Where pending part B 
claims continue to be processed under the old law and it is determined 
that the claimant is entitled to benefits under the old law, then the 
benefits may include payment for periods prior to January 1, 1974. Part 
C benefits payable to an individual for periods beginning with January 
1, 1974, are offset by part B benefits payable for the same periods to 
the individual. Election by claimants to have their pending claims 
reviewed under the BLBRA of 1977 for payment of benefits back to January 
1, 1974, will not affect the processing of their pending part B claims 
under the old law for payment of benefits prior to January 1, 1974.
    (d) Response to notification. A request for review by the Social 
Security Administration or the Office of Workers' Compensation Programs, 
must be received by the Social Security Administration within 6 months 
from the date on which the notice is mailed. Upon receipt, the request 
will be dated and made a part of the claims file. If a request for 
review by the Social Security Administration or the Office of Workers' 
Compensation Program is not received by the Social Security 
Administration within 6 months from the date the notice is mailed, the 
claimant shall be considered to have waived the right of review afforded 
by this subpart G unless good cause can be established for not 
responding within this time period. Good cause may be established in the 
following situations:
    (1) Circumstances beyond the individual's control, such as extended 
illness, mental or physical incapacity, or communication difficulties; 
or
    (2) Incorrect or incomplete information furnished the individual by 
the Social Security Administration; or

[[Page 631]]

    (3) Unusual or unavoidable circumstances, the nature of which 
demonstrate that the individual could not reasonably be expected to have 
been aware of the need to respond within this time period.

Good cause for failure to respond timely does not exist when there is 
evidence of record that the individual was informed that he or she 
should respond timely and the individual failed to do so because of 
negligence or intent not to respond.
    (e) Changing election. After a claimant has elected review by the 
Social Security Administration, he or she may change the election any 
time prior to the date an initial determination is made. If a claimant 
has elected review by the Office of Workers' Compensation Programs. The 
claimant may change the election if the Social Security Administration 
has not yet forwarded the file to the Office of Workers' Compensation 
Programs. Once the file is forwarded to the Office of Workers' 
Compensation Programs, a claimant's right to change the election from 
the Office of Workers' Compensation Programs to the Social Security 
Administration is governed by the regulations of DOL.
    (f) Social Security Administration review elected. (1) If review by 
the Social Security Administration is requested, a complete review of 
the evidence on file will be made to see if the file establishes 
entitlement to benefits under the BLBRA of 1977. Evidence on file is 
information in the black lung claims file, in the social security title 
II and title XVI disability claims files, or in a person's earnings 
record, as of March 1, 1978. In the case of a pending claim which is 
being appealed, this review will not be delayed because of the pending 
claim. If it is determined that eligibility to benefits can be 
established, the claims file, including all evidence and other pertinent 
material in the claims file, will be transferred to the Office of 
Worker's Compensation Programs for processing and assignment of 
liability in accordance with regulations published by DOL at 20 CFR part 
727. The decision of the Social Security Administration approving the 
claim will be binding upon the Office of Worker's Compensation Programs 
as an initial determination of the claim. The Social Security 
Administration will notify the claimant of its approval. If the claimant 
disagrees with any part of the Social Security Administration's 
determination of approval, the claimant may request review of this 
determination by the Office of Worker's Compensation Programs. The 
Social Security Administration has no authority under the BLBRA of 1977 
to process an appeal of any determination made by it in reviewing these 
denied and pending part B claims.
    (2) If it is determined that the evidence on file is insufficient to 
support an award of benefits, the claims file, including all evidence 
and other pertinent material in the claims file, will be transferred to 
the Office of Worker's Compensation Programs for further review in 
accordance with regulations published at 20 CFR part 727. The Social 
Security Administration will notify the claimant of this action.
    (g) DOL, Office of Workers' Compensation Programs review elected. If 
review by the Office of Workers' Compensation Programs is requested, the 
claims file and all pertinent material will be forwarded to the Office 
of Workers' Compensation Programs, without review by the Social Security 
Administration, for processing by the Office of Workers' Compensation 
Programs in accordance with regulations published at 20 CFR part 727.

[43 FR 34781, Aug. 7, 1978, as amended at 44 FR 10058, Feb. 16, 1979; 44 
FR 12164, Mar. 6, 1979]



Sec. 410.705  Duplicate claims.

    (a) Approved by the Social Security Administration--denied or 
pending with the Office of Workers' Compensation Programs. A person 
whose part B claim for benefits was approved by the Social Security 
Administration and who also filed a part C claim with the Office of 
Workers' Compensation Programs which is pending or has been denied shall 
be entitled to a review of the part C claim by the Office of Workers' 
Compensation Programs under the BLBRA of 1977.
    (b) Denied or pending with the Social Security Administration--
approved by the Office of Workers' Compensation Programs. A person who 
has filed a part B

[[Page 632]]

claim with the Social Security Administration which is pending or has 
been denied and who has also filed a part C claim with the Office of 
Workers' Compensation Programs, which has been approved, shall be 
entitled, upon request, to a review of the pending or denied part B 
claim in light of the BLBRA of 1977 by either the Social Security 
Administration or the Office of Workers' Compensation Programs, in 
accordance with this subpart.
    (c) Pending or denied by the Social Security Administration and the 
Office of Workers' Compensation Programs. A person who has filed a claim 
both with the Social Security Administration and the Office of Workers' 
Compensation Programs and whose claims are either pending with or have 
been denied by both agencies shall have the claim reviewed under the 
BLBRA of 1977 by the Social Security Administration if such review is 
requested by the claimant. If the claim is not approved by the Social 
Security Administration it shall be forwarded to the Office of Workers' 
Compensation Programs for further review as provided in 
Sec. 410.704(e)(2). During the pendency of review proceedings by the 
Social Security Administration, if any, no action shall be taken by the 
Secretary of Labor with respect to the part C claim which is pending or 
has been denied by DOL. If the claimant does not respond to notification 
of his or her right to review by the Social Security Administration 
within 6 months of the notice (see Sec. 410.704(c)) unless the period is 
enlarged for good cause shown, the Office of Workers' Compensation 
Programs shall proceed under DOL's regulations at 20 CFR part 727 to 
review the claim originally filed with the Secretary of Labor. If the 
claimant, upon notification by the Social Security Administration of his 
or her right to review (see Sec. 410.704(a)) requests that the claim 
originally filed with the Social Security Administration be forwarded to 
the Office of Workers' Compensation Programs for review, or if more than 
one claim has been filed with the Secretary of Labor by the same 
claimant, such claims shall be merged and processed with the first claim 
filed with the Office of Workers' Compensation Programs.



Sec. 410.706  Effect of the Social Security Administration determination of entitlement.

    Under section 435 of the BLBRA of 1977 a determination of 
entitlement made by the Social Security Administration under this 
subpart G is binding on the Office of Workers' Compensation Programs as 
an initial determination of eligibility.



Sec. 410.707  Hearings and appeals.

    The review of any determination made by the Social Security 
Administration of a claim under this subpart will be made by the Office 
of Workers' Compensation Programs. If the Social Security Administration 
does not approve the claim following its review under this subpart, the 
claim will be referred to the Office of Worker's Compensation Programs, 
and the Office of Workers' Compensation Programs will automatically 
review the claim. The Office of Workers' Compensation Programs will 
provide an opportunity for the claimant to submit additional evidence if 
it is needed to approve the claim. See Sec. 410.704(e)(2) of this 
subpart. If the Social Security Administration approves the claim but 
the claimant disagrees with any part of the Social Security 
Administration's determination, he or she may request the Office of 
Workers' Compensation Programs to review the Social Security 
Administration's determination. See Sec. 410.704 (e)(1) of this subpart.



PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND DISABLED--Table of Contents




       Subpart A--Introduction, General Provisions and Definitions

Sec.
416.101  Introduction.
416.105  Administration.
416.110  Purpose of program.
416.120  General definitions and use of terms.
416.121  Receipt of aid or assistance for December 1973 under an 
          approved State plan under title I, X, XIV, or XVI of the 
          Social Security Act.

                         Subpart B--Eligibility

                                 General

416.200  Introduction.

[[Page 633]]

416.201  General definitions and terms used in this subpart.
416.202  Who may get SSI benefits.
416.203  Initial determinations of SSI eligibility.
416.204  Redeterminations of SSI eligibility.

  Reasons Why You May Not Get SSI Benefits for Which You Are Otherwise 
                                Eligible

416.210  You do not apply for other benefits.
416.211  You are a resident of a public institution.
416.212  Continuation of full benefits in certain cases of medical 
          confinement.
416.213  You do not accept vocational rehabilitation services.
416.214  You are disabled and drug addiction or alcoholism is a 
          contributing factor material to the determination of 
          disability.
416.215  You leave the United States.
416.216  You are a child of armed forces personnel living overseas.

     Eligibility for Increased Benefits Because of Essential Persons

416.220  General.
416.221  Who is a qualified individual.
416.222  Who is an essential person.
416.223  What happens if you are a qualified individual.
416.250  Experimental, pilot, and demonstration projects in the SSI 
          program.

  Special Provisions for People Who Work Despite a Disabling Impairment

416.260  General.
416.261  What are special SSI cash benefits and when are they payable.
416.262  Eligibility requirements for special SSI cash benefits.
416.263  No additional application needed.
416.264  When does the special SSI eligibility status apply.
416.265  Requirements for the special SSI eligibility status.
416.266  Continuation of SSI status for Medicaid.
416.267  General.
416.268  What is done to determine if you must have Medicaid in order to 
          work.
416.269  What is done to determine whether your earnings are too low to 
          provide comparable benefits and services you would receive in 
          the absence of those earnings.

                    Subpart C--Filing of Applications

                           General Provisions

416.301  Introduction.
416.302  Definitions.
416.305  You must file an application to receive supplemental security 
          income benefits.

                              Applications

416.310  What makes an application a claim for benefits.
416.315  Who may sign an application.
416.320  Evidence of authority to sign an application for another.
416.325  When an application is considered filed.

                 Effective Filing Period of Application

416.330  Filing before the first month you meet the requirements for 
          eligibility.
416.335  Filing in or after the month you meet the requirements for 
          eligibility.

       Filing Date Based Upon a Written Statement or Oral Inquiry

416.340  Use of date of written statement as application filing date.
416.345  Use of date of oral inquiry as application filing date.
416.350  Treating a title II application as an oral inquiry about SSI 
          benefits.

               Deemed Filing Date Based on Misinformation

416.351  Deemed filing date in a case of misinformation.

                        Withdrawal of Application

416.355  Withdrawal of an application.
416.360  Cancellation of a request to withdraw.

                      Subpart D--Amount of Benefits

416.401  Scope of subpart.
416.405  Cost-of-living adjustments in benefits.
416.410  Amount of benefits; eligible individual.
416.412  Amount of benefits; eligible couple.
416.413  Amount of benefits; qualified individual.
416.414  Amount of benefits; eligible individual or eligible couple in a 
          medical care facility.
416.415  Amount of benefits; eligible individual is disabled child under 
          age 18.
416.420  Determination of benefits; general.
416.421  Determination of benefits; computation of prorated benefits.
416.426  Change in status involving an individual; ineligibility occurs.
416.428  Eligible individual without an eligible spouse has an essential 
          person in his home.
416.430  Eligible individual with eligible spouse; essential person(s) 
          present.
416.432  Change in status involving a couple; eligibility continues.
416.435  Change in status involving a couple; ineligibility occurs.

[[Page 634]]

     Subpart E--Payment of Benefits, Overpayments, and Underpayments

416.501  Payment of benefits: General.
416.502  Manner of payment.
416.503  Minimum monthly benefit amount.
416.520  Emergency advance payments.
416.525  Reimbursement to States for interim assistance payments.
416.532  Method of payment when the essential person resides with more 
          than one eligible person.
416.533  Transfer or assignment of benefits.
416.535  Underpayments and overpayments.
416.536  Underpayments--defined.
416.537  Overpayments--defined.
416.538  Amount of underpayment or overpayment.
416.542  Underpayments--to whom underpaid amount is payable.
416.543  Underpayments--applied to reduce overpayments.
416.544  Paying benefits in installments: Drug addiction or alcoholism.
416.545  Paying large past-due benefits in installments.
416.546  Payment into dedicated accounts of past-due benefits for 
          eligible individuals under age 18 who have a representative 
          payee.
416.550  Waiver of adjustment or recovery--when applicable.
416.551  Waiver of adjustment or recovery--effect of.
416.552  Waiver of adjustment or recovery--without fault.
416.553  Waiver of adjustment or recovery--defeat the purpose of the 
          supplemental security income program.
416.554  Waiver of adjustment or recovery--against equity and good 
          conscience.
416.555  Waiver of adjustment or recovery--impede administration.
416.556  Waiver of adjustment or recovery--countable resources in excess 
          of the limits prescribed in Sec. 416.1205 by $50 or less.
416.558  Notice relating to overpayments and underpayments.
416.560  Recovery--refund.
416.570  Adjustment--general rule.
416.571  10-percent limitation of recoupment rate--overpayment.

                    Subpart F--Representative Payment

416.601  Introduction.
416.610  When payment will be made to a representative payee.
416.615  Information considered in determining whether to make 
          representative payment.
416.620  Information considered in selecting a representative payee.
416.621  Order of preference in selecting a representative payee.
416.625  Information to be submitted by a representative payee.
416.630  Advance notice of the determination to make representative 
          payment.
416.635  Responsibilities of a representative payee.
416.640  Use of benefit payments.
416.640a  Compensation for qualified organizations serving as 
          representative payees.
416.641  Liability for misuse of benefit payments.
416.645  Conservation and investment of benefit payments.
416.650  When a new representative payee will be selected.
416.655  When representative payment will be stopped.
416.660  Transfer of accumulated benefit payments.
416.665  Accounting for benefit payments.

                       Subpart G--Reports Required

                              Introduction

416.701  Scope of subpart.
416.702  Definitions.

                            Report Provisions

416.704  Who must make reports.
416.708  What you must report.
416.710  What reports must include.
416.712  Form of the report.
416.714  When reports are due.

                           Penalty Deductions

416.722  Circumstances under which we make a penalty deduction.
416.724  Amounts of penalty deductions.
416.726  Penalty period: First failure to report.
416.728  Penalty period: Second failure to report.
416.730  Penalty period: Three or more failures to report.
416.732  No penalty deduction if you have good cause for failure to 
          report timely.

                     Subpart H--Determination of Age

416.801  Evidence as to age--when required.
416.802  Type of evidence to be submitted.
416.803  Evaluation of evidence.
416.804  Certified copy in lieu of original.
416.805  When additional evidence may be required.
416.806  Expedited adjudication based on documentary evidence of age.

             Subpart I--Determining Disability and Blindness

                                 General

416.901  Scope of subpart.
416.902  General definitions and terms for this subpart.

[[Page 635]]

                             Determinations

416.903  Who makes disability and blindness determinations.
416.903a  Program integrity.
416.904  Determinations by other organizations and agencies.

                        Definition of Disability

416.905  Basic definition of disability for adults.
416.906  Basic definition of disability for children.
416.907  Disability under a State plan.
416.908  What is needed to show an impairment.
416.909  How long the impairment must last.
416.910  Meaning of substantial gainful activity.
416.911  Definition of disabling impairment.

                                Evidence

416.912  Evidence of your impairment.
416.913  Medical evidence of your impairment.
416.914  When we will purchase existing evidence.
416.915  Where and how to submit evidence.
416.916  If you fail to submit medical and other evidence.
416.917  Consultative examination at our expense.
416.918  If you do not appear at a consultative examination.

Standards To Be Used in Determining When a Consultative Examination Will 
        Be Obtained in Connection With Disability Determinations

416.919  The consultative examination.
416.919a  When we will purchase a consultative examination and how we 
          will use it.
416.919b  When we will not purchase a consultative examination.

        Standards for the Type of Referral and for Report Content

416.919f  Type of purchased examinations.
416.919g  Who we will select to perform a consultative examination.
416.919h  Your treating physician or psychologist.
416.919i  Other sources for consultative examinations.
416.919j  Objections to the designated physician or psychologist.
416.919k  Purchase of medical examinations, laboratory tests, and other 
          services.
416.919m  Diagnostic tests or procedures.
416.919n  Informing the examining physician or psychologist of 
          examination scheduling, report content, and signature 
          requirements.
416.919o  When a properly signed consultative examination report has not 
          been received.
416.919p  Reviewing reports of consultative examinations.
416.919q  Conflict of interest.

             Authorizing and Monitoring the Referral Process

416.919s  Authorizing and monitoring the consultative examination.

           Procedures To Monitor the Consultative Examination

416.919t  Consultative examination oversight.

                        Evaluation of Disability

416.920  Evaluation of disability of adults, in general.
416.920a  Evaluation of mental impairments.
416.921  What we mean by a not severe impairment(s) in an adult.
416.922  When you have two or more unrelated impairments--initial 
          claims.
416.923  Multiple impairments.
416.924  How we determine disability for children.
416.924a  Age as a factor of evaluation in childhood disability.
416.924b  Functioning in children.
416.924c  Other factors we will consider.
416.924d  Individualized functional assessment for children.
416.924e  Guidelines for determining disability using the individualized 
          functional assessment.

                         Medical Considerations

416.925  Listing of Impairments in appendix 1 of subpart P of part 404 
          of this chapter.
416.926  Medical equivalence for adults and children.
416.926a  Functional equivalence for children.
416.927  Evaluating medical opinions about your impairment(s) or 
          disability.
416.928  Symptoms, signs, and laboratory findings.
416.929  How we evaluate symptoms, including pain.
416.930  Need to follow prescribed treatment.

                  Presumptive Disability and Blindness

416.931  The meaning of presumptive disability or presumptive blindness.
416.932  When presumptive payments begin and end.
416.933  How we make a finding of presumptive disability or presumptive 
          blindness.
416.934  Impairments which may warrant a finding of presumptive 
          disability or presumptive blindness.

[[Page 636]]

                      Drug Addiction and Alcoholism

416.935  How we will determine whether your drug addiction or alcoholism 
          is a contributing factor material to the determination of 
          disability.
416.936  Treatment required for individuals whose drug addiction or 
          alcoholism is a contributing factor material to the 
          determination of disability.
416.937  What we mean by appropriate treatment.
416.938  What we mean by approved institutions or facilities.
416.939  How we consider whether treatment is available.
416.940  Evaluating compliance with the treatment requirements.
416.941  Establishment and use of referral and monitoring agencies.

                      Residual Functional Capacity

416.945  Your residual functional capacity.
416.946  Responsibility for assessing and determining residual 
          functional capacity.

                        Vocational Considerations

416.960  When your vocational background will be considered.
416.961  Your ability to do work depends upon your residual functional 
          capacity.
416.962  If you have done only arduous unskilled physical labor.
416.963  Your age as a vocational factor.
416.964  Your education as a vocational factor.
416.965  Your work experience as a vocational factor.
416.966  Work which exists in the national economy.
416.967  Physical exertion requirements.
416.968  Skill requirements.
416.969  Listing of Medical--Vocational Guidelines in appendix 2 of 
          subpart P of part 404 of this chapter.
416.969a  Exertional and nonexertional limitations.

                      Substantial Gainful Activity

416.971  General.
416.972  What we mean by substantial gainful activity.
416.973  General information about work activity.
416.974  Evaluation guides if you are an employee.
416.975  Evaluation guides if you are self-employed.
416.976  Impairment-related work expenses.

                                Blindness

416.981  Meaning of blindness as defined in the law.
416.982  Blindness under a State plan.
416.983  How we evaluate statutory blindness.
416.984  If you are statutorily blind and still working.
416.985  How we evaluate other visual impairments.
416.986  Why and when we will find that you are no longer entitled to 
          benefits based on statutory blindness.

      Disability Redeterminations for Individuals Who Attain Age 18

416.987  Disability redeterminations for individuals who attain age 18.

             Continuing or Stopping Disability or Blindness

416.988  Your responsibility to tell us of events that may change your 
          disability or blindness status.
416.989  We may conduct a review to find out whether you continue to be 
          disabled.
416.989a  We may conduct a review to find out whether you continue to be 
          blind.
416.990  When and how often we will conduct a continuing disability 
          review.
416.991  If your medical recovery was expected and you returned to work.
416.992  The trial work period.
416.992a  The reentitlement period.
416.993  Medical evidence in continuing disability review cases.
416.994  How we will determine whether your disability continues or 
          ends.
416.994a  How we will determine whether your disability continues or 
          ends, and whether you are and have been receiving treatment 
          that is medically necessary and available, disabled children.
416.995  If we make a determination that your physical or mental 
          impairment(s) has ceased, did not exist or is no longer 
          disabling (Medical Cessation Determination).
416.996  Continued disability or blindness benefits pending appeal of a 
          medical cessation determination.
416.998  If you become disabled by another impairment(s).

                 Subpart J--Determinations of Disability

                           General Provisions

416.1001  Purpose and scope.
416.1002  Definitions.
416.1003  Basic responsibilities for us and the State.

  Responsibilities for Performing the Disability Determination Function

416.1010  How a State notifies us that it wishes to perform the 
          disability determination function.
416.1011  How we notify a State whether it may perform the disability 
          determination function.
416.1013  Disability determinations the State makes.

[[Page 637]]

416.1014  Responsibilities for obtaining evidence to make disability 
          determinations.
416.1015  Making disability determinations.
416.1016  Medical or psychological consultant.
416.1017  Reasonable efforts to obtain review by a qualified 
          psychiatrist or psychologist.
416.1018  Notifying claimants of the disability determination.

            Administrative Responsibilities and Requirements

416.1020  General administrative requirements.
416.1021  Personnel.
416.1022  Training.
416.1023  Facilities.
416.1024  Medical and other purchased services.
416.1025  Records and reports.
416.1026  Fiscal.
416.1027  Audits.
416.1028  Property.
416.1029  Participation in research and demonstration projects.
416.1030  Coordination with other agencies.
416.1031  Confidentiality of information and records.
416.1032  Other Federal laws and regulations.
416.1033  Policies and operating instructions.

                          Performance Standards

416.1040  General.
416.1041  Standards of performance.
416.1042  Processing time standard.
416.1043  Performance accuracy standard.
416.1044  How and when we determine whether the processing time 
          standards are met.
416.1045  How and when we determine whether the performance accuracy 
          standard is met.
416.1050  Action we will take if a State agency does not meet the 
          standards.

                   Performance Monitoring and Support

416.1060  How we will monitor.
416.1061  When we will provide performance support.
416.1062  What support we will provide.

                           Substantial Failure

416.1070  General.
416.1071  Good cause for not following the Act, our regulations, or 
          other written guidelines.
416.1075  Finding of substantial failure.

                          Hearings and Appeals

416.1080  Notice of right to hearing on proposed finding of substantial 
          failure.
416.1081  Disputes on matters other than substantial failure.
416.1082  Who conducts the hearings.
416.1083  Hearings and appeals process.

             Assumption of Disability Determination Function

416.1090  Assumption when we make a finding of substantial failure.
416.1091  Assumption when State no longer wishes to perform the 
          disability determination function.
416.1092  Protection of State employees.
416.1093  Limitation on State expenditures after notice.
416.1094  Final accounting by the State.

                            Subpart K--Income

                                 General

416.1100  Income and SSI eligibility.
416.1101  Definition of terms.
416.1102  What is income.
416.1103  What is not income.
416.1104  Income we count.

                              Earned Income

416.1110  What is earned income.
416.1111  How we count earned income.
416.1112  Earned income we do not count.

                             Unearned Income

416.1120  What is unearned income.
416.1121  Types of unearned income.
416.1123  How we count unearned income.
416.1124  Unearned income we do not count.

                     In-Kind Support and Maintenance

416.1130  Introduction.
416.1131  The one-third reduction rule.
416.1132  What we mean by ``living in another person's household.''
416.1133  What is a pro rata share of household operating expenses.
416.1140  The presumed value rule.
416.1141  When the presumed value rule applies.
416.1142  If you live in a public assistance household.
416.1143  If you live in a noninstitutional care situation.
416.1144  If you live in a nonprofit retirement home or similar 
          institution.
416.1145  How the presumed value rule applies in a nonmedical for-profit 
          institution.

        In-Kind Support and Maintenance in Special Circumstances

416.1147  How we value in-kind support and maintenance for a couple.
416.1147a  Income rules in change-of-status situations involving in-kind 
          support and maintenance.
416.1148  If you have both in-kind support and maintenance and income 
          that is deemed to you.

[[Page 638]]

                            Temporary Absence

416.1149  What is a temporary absence from your living arrangement.

                                Disasters

416.1150  How we treat income received because of a major disaster.
416.1151  How we treat the repair or replacement of lost, damaged, or 
          stolen resources.

                         Home Energy Assistance

416.1157  Support and maintenance assistance.

                            Deeming of Income

416.1160  What is deeming of income.
416.1161  Income of an ineligible spouse, ineligible parent, and 
          essential person for deeming purposes.
416.1161a  Income for deeming purposes where Medicaid eligibility is 
          affected.
416.1163  How we deem income to you from your ineligible spouse.
416.1165  How we deem income to you from your ineligible parent(s).
416.1166  How we deem income to you and your eligible child from your 
          ineligible spouse.
416.1166a  How we deem income to you from your sponsor if you are an 
          alien.
416.1167  Temporary absences and deeming rules.
416.1168  How we deem income to you from your essential person.
416.1169  When we stop deeming income from an essential person.

     Alternative Income Counting Rules for Certain Blind Individuals

416.1170  General.
416.1171  When the alternative rules apply.

  Rules for Helping Blind and Disabled Individuals Achieve Self-Support

416.1180  General.
416.1181  What a plan to achieve self-support is.
416.1182  When we begin to count the income excluded under the plan.

Appendix to Subpart K--List of Types of Income Excluded Under the SSI 
          Program as Provided by Federal Laws Other Than the Social 
          Security Act

                   Subpart L--Resources and Exclusions

416.1201  Resources; general.
416.1202  Deeming of resources.
416.1203  Deeming of resources of an essential person.
416.1204  Deeming of resources of the sponsor of an alien.
416.1204a  Deeming of resources where Medicaid eligibility is affected.
416.1205  Limitation on resources.
416.1207  Resources determinations.
416.1208  How funds held in financial institution accounts are counted.
416.1210  Exclusions from resources; general.
416.1212  Exclusion of the home.
416.1216  Exclusion of household goods and personal effects.
416.1218  Exclusion of the automobile.
416.1220  Property essential to self-support; general.
416.1222  How income-producing property essential to self-support is 
          counted.
416.1224  How nonbusiness property used to produce goods or services 
          essential to self-support is counted.
416.1225  An approved plan for self-support; general.
416.1226  What a plan to achieve self-support is.
416.1227  When the resources excluded under a plan to achieve self-
          support begin to count.
416.1228  Exclusion of Alaskan natives' stock in regional or village 
          corporations.
416.1229  Exclusion of payments received as compensation for expenses 
          incurred or losses suffered as a result of a crime.
416.1230  Exclusion of life insurance.
416.1231  Burial spaces and certain funds set aside for burial expenses.
416.1232  Replacement of lost, damaged, or stolen excluded resources.
416.1233  Exclusion of certain underpayments from resources.
416.1234  Exclusion of Indian lands.
416.1235  Exclusion of earned income tax credit.
416.1236  Exclusions from resources; provided by other statutes.
416.1237  Assistance received on account of major disaster.
416.1238  Exclusion of certain housing assistance.
416.1239  Exclusion of State or local relocation assistance payments.
416.1240  Disposition of resources.
416.1242  Time limits for disposing of resources.
416.1244  Treatment of proceeds from disposition of resources.
416.1245  Exceptions to required disposition of real property.
416.1246  Disposal of resources at less than fair market value.
416.1247  Exclusion of a dedicated account in a financial institution.
416.1260  Special resource provision for recipients under a State plan.
416.1261  Application of special resource provision.
416.1262  Special resource provision applicable in cases involving 
          essential persons.
416.1264  Spouse ineligible under a State plan in December 1973.
416.1266  Individual under special resource provision dies after 
          December 1973.

[[Page 639]]

                 Subpart M--Suspensions and Terminations

416.1321  Suspensions; general.
416.1322  Suspension due to failure to comply with request for 
          information.
416.1323  Suspension due to excess income.
416.1324  Suspension due to excess resources.
416.1325  Suspension due to status as a resident of a public 
          institution.
416.1326  Suspension for failure to comply with treatment for drug 
          addiction or alcoholism.
416.1327  Suspension due to absence from the United States.
416.1328  Suspension due to refusal to accept vocational rehabilitation 
          services.
416.1329  Suspension due to loss of United States residency, United 
          States citizenship, or status as an alien lawfully admitted 
          for permanent residence or otherwise permanently residing in 
          the United States under color of law.
416.1330  Suspension due to failure to apply for and obtain other 
          benefits.
416.1331  Termination of your disability or blindness payments.
416.1332  Termination of benefit for disabled individual: Exception.
416.1333  Termination at the request of the recipient.
416.1334  Termination due to death of recipient.
416.1335  Termination due to continuous suspension.
416.1336  Notice of intended action affecting recipient's payment 
          status.
416.1337  Exceptions to the continuation of previously established 
          payment level.
416.1338  If you are participating in a vocational rehabilitation 
          program.

Subpart N--Determinations, Administrative Review Process, and Reopening 
                     of Determinations and Decisions

          Introduction, Definitions, and Initial Determinations

416.1400  Introduction.
416.1401  Definitions.
416.1402  Administrative actions that are initial determinations.
416.1403  Administrative actions that are not initial determinations.
416.1404  Notice of the initial determination.
416.1405  Effect of an initial determination.
416.1406  Testing modifications to the disability determination 
          procedures.

                             Reconsideration

416.1407  Reconsideration--general.
416.1408  Parties to a reconsideration.
416.1409  How to request reconsideration.
416.1411  Good cause for missing the deadline to request review.
416.1413  Reconsideration procedures.
416.1413a  Reconsiderations of initial determinations on applications.
416.1413b  Reconsideration procedures for post-eligibility claims.
416.1413c  Arrangement for conferences.
416.1414  Disability hearing--general.
416.1415  Disability hearing--disability hearing officers.
416.1416  Disability hearing--procedures.
416.1417  Disability hearing--disability hearing officer's reconsidered 
          determination.
416.1418  Disability hearing--review of the disability hearing officer's 
          reconsidered determination before it is issued.
416.1419  Notice of another person's request for reconsideration.
416.1420  Reconsidered determination.
416.1421  Effect of a reconsidered determination.
416.1422  Notice of a reconsidered determination.

                        Expedited Appeals Process

416.1423  Expedited appeals process--general.
416.1424  When the expedited appeals process may be used.
416.1425  How to request expedited appeals process.
416.1426  Agreement in expedited appeals process.
416.1427  Effect of expedited appeals process agreement.
416.1428  Expedited appeals process request that does not result in 
          agreement.

               Hearing Before an Administrative Law Judge

416.1429  Hearing before an administrative law judge--general.
416.1430  Availability of a hearing before an administrative law judge.
416.1432  Parties to a hearing before an administrative law judge.
416.1433  How to request a hearing before an administrative law judge.
416.1435  Submitting evidence prior to a hearing before an 
          administrative law judge.
416.1436  Time and place for a hearing before an administrative law 
          judge.
416.1438  Notice of a hearing before an administrative law judge.
416.1439  Objections to the issues.
416.1440  Disqualification of the administrative law judge.
416.1441  Prehearing case review.
416.1442  Prehearing proceedings and decisions by attorney advisors.
416.1443  Responsibilities of the adjudication officer.

               Administrative Law Judge Hearing Procedures

416.1444  Administrative law judge hearing procedures--general.

[[Page 640]]

416.1446  Issues before an administrative law judge.
416.1448  Deciding a case without an oral hearing before an 
          administrative law judge.
416.1449  Presenting written statements and oral arguments.
416.1450  Presenting evidence at a hearing before an administrative law 
          judge.
416.1451  When a record of a hearing before an administrative law judge 
          is made.
416.1452  Consolidated hearings before an administrative law judge.
416.1453  The decision of an administrative law judge.
416.1455  The effect of an administrative law judge's decision.
416.1456  Removal of a hearing request from an administrative law judge 
          to the Appeals Council.
416.1457  Dismissal of a request for a hearing before an administrative 
          law judge.
416.1458  Notice of dismissal of a request for a hearing before an 
          administrative law judge.
416.1459  Effect of dismissal of a request for a hearing before an 
          administrative law judge.
416.1460  Vacating a dismissal of a request for a hearing before an 
          administrative law judge.
416.1461  Prehearing and posthearing conferences.
416.1465  [Reserved]

                         Appeals Council Review

416.1467  Appeals Council review--general.
416.1468  How to request Appeals Council review.
416.1469  Appeals Council initiates review.
416.1470  Cases the Appeals Council will review.
416.1471  Dismissal by Appeals Council.
416.1472  Effect of dismissal of request for Appeals Council review.
416.1473  Notice of Appeals Council review.
416.1474  Obtaining evidence from Appeals Council.
416.1475  Filing briefs with the Appeals Council.
416.1476  Procedures before Appeals Council on review.
416.1477  Case remanded by Appeals Council.
416.1479  Decision of Appeals Council.
416.1481  Effect of Appeals Council's decision or denial of review.
416.1482  Extension of time to file action in Federal district court.

                           Court Remand Cases

416.1483  Case remanded by a Federal court.
416.1484  Appeals Council review of administrative law judge decision in 
          a case remanded by a Federal court.
416.1485  Application of circuit court law.

           Reopening and Revising Determinations and Decisions

416.1487  Reopening and revising determinations and decisions.
416.1488  Conditions for reopening.
416.1489  Good cause for reopening.
416.1491  Late completion of timely investigation.
416.1492  Notice of revised determination or decision.
416.1493  Effect of revised determination or decision.
416.1494  Time and place to request further review or a hearing on 
          revised determination or decision.

                   Payment of Certain Travel Expenses

416.1495  Payment of certain travel expenses--general.
416.1496  Who may be reimbursed.
416.1498  What travel expenses are reimbursable.
416.1499  When and how to claim reimbursement.

                  Subpart O--Representation of Parties

416.1500  Introduction.
416.1503  Definitions.
416.1505  Who may be your representative.
416.1506  Notification of options for obtaining attorney representation.
416.1507  Appointing a representative.
416.1510  Authority of a representative.
416.1515  Notice or request to a representative.
416.1520  Fee for a representative's services.
416.1525  Request for approval of a fee.
416.1528  Proceedings before a State or Federal court.
416.1535  Services in a proceeding under title XVI of the Act.
416.1540  Rules governing representatives.
416.1545  What happens to a representative who breaks the rules.
416.1550  Notice of charges against a representative.
416.1555  Withdrawing charges against a representative.
416.1565  Hearing on charges.
416.1570  Decision by hearing officer.
416.1575  Requesting review of the hearing officer's decision.
416.1576  Assignment of request for review of the hearing officer's 
          decision.
416.1580  Appeals Council's review of hearing officer's decision.
416.1585  Evidence permitted on review.
416.1590  Appeals Council's decision.
416.1595  When the Appeals Council will dismiss a request for review.
416.1597  Reinstatement after suspension--period of suspension expired.
416.1599  Reinstatement after suspension or disqualification--period of 
          suspension not expired.

[[Page 641]]

                  Subpart P--Residence and Citizenship

416.1600  Introduction.
416.1601  Definitions and terms used in this subpart.
416.1603  How to prove you are a resident of the United States.
416.1610  How to prove you are a citizen or a national of the United 
          States.
416.1615  How to prove you are lawfully admitted for permanent residence 
          in the United States.
416.1618  When you are considered permanently residing in the United 
          States under color of law.
416.1619  When you cannot be considered permanently residing in the 
          United States under color of law.

Subpart Q--Referral of Persons Eligible for Supplemental Security Income 
                            to Other Agencies

                                 General

416.1701  Scope of subpart.
416.1705  Definitions.

             Referral for Vocational Rehabilitation Services

416.1710  Whom we refer and when.
416.1715  Effect of your rejecting vocational rehabilitation services.

         Referral for Treatment of Alcoholism or Drug Addiction

416.1720  Whom we refer.
416.1725  Effect of your failure to comply with treatment requirements 
          for your drug addiction or alcoholism.

                         Subpart R--Relationship

416.1801  Introduction.

                      Who Is Considered Your Spouse

416.1802  Effects of marriage on eligibility and amount of benefits.
416.1806  Whether you are married and who is your spouse.
416.1816  Information we need concerning marriage when you apply for 
          SSI.
416.1821  Showing that you are married when you apply for SSI.
416.1826  Showing that you are not married when you apply for SSI.
416.1830  When we stop considering you and your spouse an eligible 
          couple.
416.1832  When we consider your marriage ended.
416.1835  Information we need about separation or end of marriage after 
          you become eligible for SSI.

                        Who Is Considered a Child

416.1851  Effects of being considered a child.
416.1856  Who is considered a child.
416.1861  Deciding whether you are a child: Are you a student?
416.1866  Deciding whether you are a child: Are you the head of a 
          household?

                      Who Is Considered Your Parent

416.1876  Effects a parent (or parents) can have on the child's 
          benefits.
416.1881  Deciding whether someone is your parent or stepparent.

                Subpart S--Interim Assistance Provisions

                              Introduction

416.1901  Scope of subpart S.
416.1902  Definitions.

                             Authorizations

416.1904  Authorization to withhold SSI benefits.
416.1906  When your authorization is in effect.
416.1908  When we need another authorization.

                      Interim Assistance Agreements

416.1910  Requirements for interim assistance agreement.

                                 Appeals

416.1920  Your appeal rights in the State.
416.1922  Your appeal rights in SSA.

    Subpart T--State Supplementation Provisions; Agreements; Payments

416.2001  State supplementary payments; general.
416.2005  Administration agreements with SSA.
416.2010  Essentials of the administration agreements.
416.2015  Establishing eligibility.
416.2020  Federally administered supplementary payments.
416.2025  Optional supplementation: Countable income.
416.2030  Optional supplementation: Variations in payments.
416.2035  Optional supplementation: Additional State options.
416.2040  Limitations on eligibility.
416.2045  Overpayments and underpayments; federally administered 
          supplementation.
416.2047  Waiver of State supplementary payments.
416.2050  Mandatory minimum State supplementation.
416.2055  Mandatory minimum supplementation reduced.
416.2060  Mandatory minimum supplementary payments not applicable.
416.2065  Mandatory minimum State supplementation: Agreement deemed.
416.2070  Mandatory supplementation: State compliance not applicable.

[[Page 642]]

416.2075  Monitoring of mandatory minimum supplementary payments.
416.2090  State funds transferred for supplementary payments.
416.2095  Pass-along of Federal benefit increases.
416.2096  Basic pass-along rules.
416.2097  Combined supplementary/SSI payment levels.
416.2098  Supplementary payment levels.
416.2099  Compliance with pass-along.

             Subpart U--Medicaid Eligibility Determinations

416.2101  Introduction.
416.2111  Conditions for our agreeing to make Medicaid eligibility 
          determinations.
416.2116  Medicaid eligibility determinations.
416.2130  Effect of the agreement and responsibilities of States.
416.2140  Liability for erroneous Medicaid eligibility determinations.
416.2145  Services other than Medicaid determinations.
416.2161  Charges to States.
416.2166  Changing the agreement.
416.2171  Duration of agreement.
416.2176  Disagreements between a State and us.

       Subpart V--Payments for Vocational Rehabilitation Services

                           General Provisions

416.2201  General.
416.2202  Purpose and scope.
416.2203  Definitions.
416.2204  Participation by State VR agencies or alternate participants.
416.2206  Basic qualifications for alternate participants.

                           Payment Provisions

416.2208  Requirements for payment.
416.2209  Responsibility for making payment decisions.
416.2210  What we mean by ``SGA'' and by ``a continuous period of 9 
          months''.
416.2211  Criteria for determining when VR services will be considered 
          to have contributed to a continuous period of 9 months.
416.2212  Payment for VR services in a case where an individual 
          continues to receive disability or blindness benefits based on 
          participation in an approved VR program.
416.2213  Payment for VR services in a case of VR refusal.
416.2214  Services for which payment may be made.
416.2215  When services must have been provided.
416.2216  When claims for payment for VR services must be made (filing 
          deadlines).
416.2217  What costs will be paid.

                        Administrative Provisions

416.2218  Applicability of these provisions to alternate participants.
416.2219  Method of payment.
416.2220  Audits.
416.2221  Validation reviews.
416.2222  Confidentiality of information and records.
416.2223  Other Federal laws and regulations.
416.2227  Resolution of disputes.



       Subpart A--Introduction, General Provisions and Definitions

    Authority:  Secs. 702(a)(5) and 1601-1635 of the Social Security Act 
(42 U.S.C. 902(a)(5) and 1381-133d); sec. 212, Pub. L. 93-66, 87 Stat. 
155 (42 U.S.C. 1382 note); sec. 502(a), Pub. L. 94-241, 90 Stat. 268 (48 
U.S.C. 1681 note).

    Source:  39 FR 28625, Aug. 9, 1974, unless otherwise noted.



Sec. 416.101  Introduction.

    The regulations in this part 416 (Regulations No. 16 of the Social 
Security Administration) relate to the provisions of title XVI of the 
Social Security Act as amended by section 301 of Pub. L. 92-603 enacted 
October 30, 1972, and as may thereafter be amended. Title XVI 
(Supplemental Security Income For The Aged, Blind, and Disabled) of the 
Social Security Act, as amended, established a national program, 
effective January 1, 1974, for the purpose of providing supplemental 
security income to individuals who have attained age 65 or are blind or 
disabled. The regulations in this part are divided into the following 
subparts according to subject content:
    (a) This subpart A contains this introduction, a statement of the 
general purpose underlying the supplemental security income program, 
general provisions applicable to the program and its administration, and 
definitions and use of terms occurring throughout this part.
    (b) Subpart B of this part covers in general the eligibility 
requirements which must be met for benefits under the supplemental 
security income program. It sets forth the requirements regarding 
residence, citizenship, age, disability, or blindness, and describes the

[[Page 643]]

conditions which bar eligibility and generally points up other 
conditions of eligibility taken up in greater detail elsewhere in the 
regulations (e.g., limitations on income and resources, receipt of 
support and maintenance, etc.).
    (c) Subpart C of this part sets forth the rules with respect to the 
filing of applications, requests for withdrawal of applications, 
cancellation of withdrawal requests and other similar requests.
    (d) Subpart D of this part sets forth the rules for computing the 
amount of benefits payable to an eligible individual and eligible 
spouse.
    (e) Subpart E of this part covers provisions with respect to 
periodic payment of benefits, joint payments, payment of emergency cash 
advances, payment of benefits prior to a determination of disability, 
prohibition against transfer or assignment of benefits, adjustment and 
waiver of overpayments, and payment of underpayments.
    (f) Subpart F of this part contains provisions with respect to the 
selection of representative payees to receive benefits on behalf of and 
for the use of recipients and to the duties and responsibilities of 
representative payees.
    (g) Subpart G of this part sets forth rules with respect to the 
reporting of events and circumstances affecting eligibility or the 
amount of benefits payable.
    (h) Subpart H of this part sets forth rules and guidelines for the 
submittal and evaluation of evidence of age where age is pertinent to 
establishing eligibility or the amount of benefits payable.
    (i) Subpart I of this part sets forth the rules for establishing 
disability or blindness where the establishment of disability or 
blindness is pertinent to eligibility.
    (j) Subpart J of this part sets forth the standards, requirements 
and procedures for States making determinations of disability for the 
Secretary. It also sets out the Secretary's responsibilities in carrying 
out the disability determination function.
    (k) Subpart K of this part defines income, earned income, and 
unearned income and sets forth the statutory exclusions applicable to 
earned and unearned income for the purpose of establishing eligibility 
for and the amount of benefits payable.
    (l) Subpart L of this part defines the term resources and sets forth 
the statutory exclusions applicable to resources for the purpose of 
determining eligibility.
    (m) Subpart M of this part deals with events or circumstances 
requiring suspension or termination of benefits.
    (n) Subpart N of this part contains provisions with respect to 
procedures for making determinations with respect to eligibility, amount 
of benefits, representative payment, etc., notices of determinations, 
rights of appeal and procedures applicable thereto, and other procedural 
due process provisions.
    (o) Subpart O of this part contains provisions applicable to 
attorneys and other individuals who represent applicants in connection 
with claims for benefits.
    (p) Subpart P of this part sets forth the residence and citizenship 
requirements that are pertinent to eligibility.
    (q) Subpart Q of this part contains provisions with respect to the 
referral of individuals for vocational rehabilitation, treatment for 
alcoholism and drug addiction, and application for other benefits to 
which an applicant may be potentially entitled.
    (r) Subpart R of this part sets forth the rules for determining 
marital and other family relationships where pertinent to the 
establishment of eligibility for or the amount of benefits payable.
    (s) Subpart S of this part explains interim assistance and how 
benefits may be withheld to repay such assistance given by the State.
    (t) Subpart T of this part contains provisions with respect to the 
supplementation of Federal supplemental security income payments by 
States, agreements for Federal administration of State supplementation 
programs, and payment of State supplementary payments.
    (u) Subpart U of this part contains provisions with respect to 
agreements with States for Federal determination of Medicaid eligibility 
of applicants for supplemental security income.

[[Page 644]]

    (v) Subpart V of this part explains when payments are made to State 
vocational rehabilitation agencies (or alternate participants) for 
vocational rehabilitation services.

[39 FR 28625, Aug. 9, 1974, as amended at 51 FR 11718, Apr. 7, 1986]



Sec. 416.105  Administration.

    The Supplemental Security Income for the Aged, Blind, and Disabled 
program is administered by the Social Security Administration under 
authority delegated by the Secretary of Health and Human Services.

[51 FR 11718, Apr. 7, 1986]



Sec. 416.110  Purpose of program.

    The basic purpose underlying the supplemental security income 
program is to assure a minimum level of income for people who are age 65 
or over, or who are blind or disabled and who do not have sufficient 
income and resources to maintain a standard of living at the established 
Federal minimum income level. The supplemental security income program 
replaces the financial assistance programs for the aged, blind, and 
disabled in the 50 States and the District of Columbia for which grants 
were made under the Social Security Act. Payments are financed from the 
general funds of the United States Treasury. Several basic principles 
underlie the program:
    (a) Objective tests. The law provides that payments are to be made 
to aged, blind, and disabled people who have income and resources below 
specified amounts. This provides objective measurable standards for 
determining each person's benefits.
    (b) Legal right to payments. A person's rights to supplemental 
security income payments--how much he gets and under what conditions--
are clearly defined in the law. The area of administrative discretion is 
thus limited. If an applicant disagrees with the decision on his claim, 
he can obtain an administrative review of the decision and if still not 
satisfied, he may initiate court action.
    (c) Protection of personal dignity. Under the Federal program, 
payments are made under conditions that are as protective of people's 
dignity as possible. No restrictions, implied or otherwise, are placed 
on how recipients spend the Federal payments.
    (d) Nationwide uniformity of standards. The eligibility requirements 
and the Federal minimum income level are identical throughout the 50 
States and the District of Columbia. This provides assurance of a 
minimum income base on which States may build supplementary payments.
    (e) Incentives to work and opportunities for rehabilitation. Payment 
amounts are not reduced dollar-for-dollar for work income but some of an 
applicant's income is counted toward the eligibility limit. Thus, 
recipients are encouraged to work if they can. Blind and disabled 
recipients with vocational rehabilitation potential are referred to the 
appropriate State vocational rehabilitation agencies that offer 
rehabilitation services to enable them to enter the labor market.
    (f) State supplementation and Medicaid determinations. (1) Federal 
supplemental security income payments lessen the variations in levels of 
assistance and provide a basic level of assistance throughout the 
nation. States are required to provide mandatory minimum State 
supplementary payments beginning January 1, 1974, to aged, blind, or 
disabled recipients of assistance for the month of December 1973 under 
such State's plan approved under title I, X, XIV, or XVI of the Act in 
order for the State to be eligible to receive title XIX funds (see 
subpart T of this part). These payments must be in an amount sufficient 
to ensure that individuals who are converted to the new program will not 
have their income reduced below what it was under the State program for 
December 1973. In addition, each State may choose to provide more than 
the Federal supplemental security income and/or mandatory minimum State 
supplementary payment to whatever extent it finds appropriate in view of 
the needs and resources of its citizens or it may choose to provide no 
more than the mandatory minimum payment where applicable. States which 
provide State supplementary payments can enter into agreements for 
Federal administration of the mandatory and optional State supplementary 
payments with the Federal

[[Page 645]]

Government paying the administrative costs. A State which elects Federal 
administration of its supplementation program must apply the same 
eligibility criteria (other than those pertaining to income) applied to 
determine eligibility for the Federal portion of the supplemental 
security income payment, except as provided in sec. 1616(c) of the Act 
(see subpart T of this part). There is a limitation on the amount 
payable to the Secretary by a State for the amount of the supplementary 
payments made on its behalf for any fiscal year pursuant to the State's 
agreement with the Secretary. Such limitation on the amount of 
reimbursement is related to the State's payment levels for January 1972 
and its total expenditures for calendar year 1972 for aid and assistance 
under the appropriate State plan(s) (see subpart T of this part).
    (2) States with Medicaid eligibility requirements for the aged, 
blind, and disabled that are identical (except as permitted by 
Sec. 416.2111) to the supplemental security income eligibility 
requirements may elect to have the Social Security Administration 
determine Medicaid eligibility under the State's program for recipients 
of supplemental security income and recipients of a federally 
administered State supplementary payment. The State would pay half of 
Social Security Administration's incremental administrative costs 
arising from carrying out the agreement.

[39 FR 28625, Aug. 9, 1974, as amended at 53 FR 12941, Apr. 20, 1988]



Sec. 416.120  General definitions and use of terms.

    (a) Terms relating to acts and regulations. As used in this part:
    (1) The Act means the Social Security Act as amended (42 U.S.C. 
Chap. 7).
    (2) Wherever a title is referred to, it means such title of the Act.
    (3) Vocational Rehabilitation Act means the act approved June 2, 
1920 (41 Stat. 735), 29 U.S.C. 31-42, as amended, and as may be amended 
from time to time hereafter.
    (b) Secretary; Commissioner; Appeals Council; defined. As used in 
this part:
    (1) Secretary means the Secretary of Health and Human Services.
    (2) Commissioner means the Commissioner of Social Security.
    (3) 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.
    (c) Miscellaneous. As used in this part unless otherwise indicated:
    (1) Supplemental security income benefit means the amount to be paid 
to an eligible individual (or eligible individual and his eligible 
spouse) under title XVI of the Act.
    (2) Income means the receipt by an individual of any property or 
service which he can apply, either directly or by sale or conversion, to 
meeting his basic needs (see subpart K of this part).
    (3) Resources means cash or other liquid assets or any real or 
personal property that an individual owns and could convert to cash to 
be used for support and maintenance (see Sec. 416.1201(a)).
    (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) Couple means an eligible individual and his eligible spouse.
    (6) Institution (see Sec. 416.201).
    (7) Public institution (see Sec. 416.201).
    (8) Resident of a public institution (see Sec. 416.201).
    (9) State, unless otherwise indicated, means a State of the United 
States, the District of Columbia, or effective January 9, 1978, the 
Northern Mariana Islands.
    (10) The term United States when used in a geographical sense means 
the 50 States, the District of Columbia, and effective January 9, 1978, 
the Northern Mariana Islands.
    (11) Masculine gender includes the feminine, unless otherwise 
indicated.
    (12) Section means a section of the regulations in part 416 of this 
chapter unless the context indicates otherwise.
    (13) Eligible individual means an aged, blind, or disabled 
individual who meets all the requirements for eligibility for benefits 
under the supplemental security income program.
    (14) Eligible spouse means an aged, blind, or disabled individual 
who is the husband or wife of another aged, blind,

[[Page 646]]

or disabled individual and who is living with that individual (see 
Sec. 416.1801(c)).
    (d) Periods of limitation ending on nonwork days. Pursuant to the 
Act, where any provision of title XVI, 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 XVI, or any regulation of 
the Secretary issued under title XVI, 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 title XVI or is necessary to 
establish or protect any rights under title XVI and such period ends on 
a Saturday, Sunday, or Federal legal holiday or on any other day all or 
part of which is declared to be a nonworkday for Federal employees by 
statute or Executive Order, then such act shall be considered as done 
within such period if it is done on the first day thereafter which is 
not a Saturday, Sunday, or legal holiday or any other day all or part of 
which is declared to be a nonworkday for Federal employees either by 
statute or Executive Order. For purposes of this 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 Secretary pursuant 
to law. Such extension of any period of limitation does not apply to 
periods during which an application for benefits or payments may be 
accepted as such an application pursuant to subpart C of this part.

[39 FR 28625, Aug. 9, 1974, as amended at 43 FR 25091, June 9, 1978; 51 
FR 11719, Apr. 7, 1986; 60 FR 16374, Mar. 30, 1995]



Sec. 416.121  Receipt of aid or assistance for December 1973 under an approved State plan under title I, X, XIV, or XVI of the Social Security Act.

    (a) Recipient of aid or assistance defined. As used in this part 
416, the term individual who was a recipient of aid or assistance for 
December 1973 under a State plan approved under title I, X, XIV, or XVI 
of the Social Security Act means an individual who correctly received 
aid or assistance under such plan for December 1973 even though such aid 
or assistance may have been received subsequent to December 1973. It 
also includes an individual who filed an application prior to January 
1974 and was otherwise eligible for aid or assistance for December 1973 
under the provisions of such State plan but did not in fact receive such 
aid or assistance. It does not include an individual who received aid or 
assistance because of the provisions of 45 CFR 205.10(a) (pertaining to 
continuation of assistance until a fair hearing decision is rendered), 
as in effect in December 1973, and with respect to whom it is 
subsequently determined that such aid or assistance would not have been 
received without application of the provisions of such 45 CFR 205.10(a).
    (b) Aid or assistance defined. As used in this part 416, the term 
aid or assistance means aid or assistance as defined in titles I, X, 
XIV, and XVI of the Social Security Act, as in effect in December 1973, 
and such aid or assistance is eligible for Federal financial 
participation in accordance with those titles and the provisions of 45 
CFR Chapter II as in effect in December 1973.
    (c) Determinations of receipt of aid or assistance for December 
1973. For the purpose of application of the provisions of this part 416, 
the determination as to whether an individual was a recipient of aid or 
assistance for December 1973 under a State plan approved under title I, 
X, XIV, or XVI of the Social Security Act will be made by the Social 
Security Administration. In making such determination, the Social 
Security Administration may take into consideration a prior 
determination by the appropriate State agency as to whether the 
individual was eligible for aid or assistance for December 1973 under 
such State plan. Such prior determination, however, shall not be 
considered as conclusive in determining whether an individual was a 
recipient of aid or assistance for December 1973 under a State plan 
approved under title I, X, XIV, or XVI of the Social Security Act for 
purposes of application of the provisions of this part 416.
    (d) Special provision for disabled recipients. For purposes of 
Sec. 416.907, the criteria and definitions enumerated in paragraphs (a) 
through (c) of this section are applicable in determining whether an 
individual was a recipient

[[Page 647]]

of aid or assistance (on the basis of disability) under a State plan 
approved under title XIV or XVI of the Act for a month prior to July 
1973. It is not necessary that the aid or assistance for December 1973 
and for a month prior to July 1973 have been paid under the State plan 
of the same State.

[39 FR 32024, Sept. 4, 1974; 39 FR 33207, Sept. 16, 1974, as amended at 
51 FR 11719, Apr. 7, 1986]



                         Subpart B--Eligibility

    Authority:  Secs. 702(a)(5), 1110(b), 1602, 1611, 1614, 1615(c), 
1619(a), 1631, and 1634 of the Social Security Act (42 U.S.C. 902(a)(5), 
1310(b), 1381a, 1382, 1382c, 1382d(c), 1382h(a), 1383, and 1383c); secs. 
211 and 212, Pub. L. 93-66, 87 Stat. 154 and 155 (42 U.S.C. 1382 note); 
sec. 502(a), Pub. L. 94-241, 90 Stat. 268 (48 U.S.C. 1681 note); sec. 2, 
Pub. L. 99-643, 100 Stat. 3574 (42 U.S.C. 1382h note).

    Source:  47 FR 3103, Jan. 22, 1982, unless otherwise noted.

                                 General



Sec. 416.200  Introduction.

    You are eligible for SSI benefits if you meet all the basic 
requirements listed in Sec. 416.202. You must give us any information we 
request and show us necessary documents or other evidence to prove that 
you meet these requirements. We determine your eligibility for each 
month on the basis of your countable income in that month. You continue 
to be eligible unless you lose your eligibility because you no longer 
meet the basic requirements or because of one of the reasons given in 
Secs. 416.210 through 416.214.

[50 FR 48570, Nov. 26, 1985]



Sec. 416.201  General definitions and terms used in this subpart.

    Any 9-month period means any period of 9 full calendar months ending 
with any full calendar month throughout which (as defined in 
Sec. 416.211) an individual is residing in a public emergency shelter 
for the homeless (as defined in this section) and including the 
immediately preceding 8 consecutive full calendar months. January 1988 
is the earliest possible month in any 9-month period.
    Educational or vocational training means a recognized program for 
the acquisition of knowledge or skills to prepare an individual for 
gainful employment. For purposes of these regulations, educational or 
vocational training does not include programs limited to the acquisition 
of basic life skills including but not limited to eating and dressing.
    Emergency shelter means a shelter for individuals whose homelessness 
poses a threat to their lives or health.
    Homeless individual is one who is not in the custody of any public 
institution and has no currently usable place to live. By custody we 
mean the care and control of an individual in a mandatory residency 
where the individual's freedom to come and go as he or she chooses is 
restricted. An individual in a public institution awaiting discharge and 
placement in the community is in the custody of that institution until 
discharged and is not homeless for purposes of this provision.
    Institution means an establishment that makes available some 
treatment or services in addition to food and shelter to four or more 
persons who are not related to the proprietor.
    Medical care facility means a hospital (defined in section 1861(e) 
of the Act), a skilled nursing facility (defined in section 1861(j) of 
the Act), or an intermediate care facility (defined in section 1905(c) 
of the Act).
    Public emergency shelter for the homeless means a public institution 
or that part of a public institution used as an emergency shelter by the 
Federal government, a State, or a political subdivision of a State, 
primarily for making available on a temporary basis a place to sleep, 
food, and some services or treatment to homeless individuals. A medical 
facility (as defined in Sec. 416.201) or any holding facility, 
detoxification center, foster care facility, or the like that has 
custody of the individual is not a public emergency shelter for the 
homeless. Similarly, transitional living arrangements such as a halfway 
house that are part of an insitution's plan to facilitate the 
individual's adjustment to community living are not public emergency 
shelters for the homeless.

[[Page 648]]

    Public institution means an institution that is operated by or 
controlled by the Federal government, a State, or a political 
subdivision of a State such as a city or county. The term public 
institution does not include a publicly operated community residence 
which serves 16 or fewer residents.
    Resident of a public institution means a person who can receive 
substantially all of his or her food and shelter while living in a 
public institution. The person need not be receiving treatment and 
services available in the institution and is a resident regardless of 
whether the resident or anyone else pays for all food, shelter, and 
other services in the institution. A person is not a resident of a 
public institution if he or she is living in a public educational 
institution for the primary purpose of receiving educational or 
vocational training as defined in this section. A resident of a public 
institution means the same thing as an inmate of a public institution as 
used in section 1611(e)(1)(A) of the Social Security Act. (See 
Sec. 416.211(b), (c), and (d) of this subpart for exceptions to the 
general limitation on the eligibility for Supplemental Security Income 
benefits of individuals who are residents of a public institution.)
    SSI means supplemental security income.
    State assistance means payments made by a State to an aged, blind, 
or disabled person under a State plan approved under title I, X, XIV, or 
XVI (AABD) of the Social Security Act which was in effect before the SSI 
Program.
    We or Us means the Social Security Administration.
    You or Your means the person who applies for or receives SSI 
benefits or the person for whom an application is filed.

[47 FR 3103, Jan. 22, 1982, as amended at 49 FR 19639, May 19, 1984; 50 
FR 48570, Nov. 26, 1985; 50 FR 51517, Dec. 18, 1985; 54 FR 19164, May 4, 
1989]



Sec. 416.202  Who may get SSI benefits.

    You are eligible for SSI benefits if you meet all of the following 
requirements:
    (a) You are--
    (1) Aged 65 or older (subpart H);
    (2) Blind (subpart I); or
    (3) Disabled (subpart I).
    (b) You are a resident of the United States (Sec. 416.1603), and--
    (1) A citizen or a national of the United States (Sec. 416.1610);
    (2) An alien lawfully admitted for permanent residence in the United 
States (Sec. 416.1615);
    (3) An alien permanently residing in the United States under color 
of law (Sec. 416.1618); or
    (4) A child of armed forces personnel living overseas as described 
in Sec. 416.216.
    (c) You do not have more income than is permitted (subparts K and 
D).
    (d) You do not have more resources than are permitted (subpart L).
    (e) You are disabled, drug addiction or alcoholism is a contributing 
factor material to the determination of disability (see Sec. 416.935), 
and you have not previously received a total of 36 months of Social 
Security benefit payments when appropriate treatment was available or 36 
months of SSI benefits on the basis of disability where drug addiction 
or alcoholism was a contributing factor material to the determination of 
disability.
    (f) You file an application for SSI benefits (subpart C).

[47 FR 3103, Jan. 22, 1982, as amended at 58 FR 4897, Jan. 19, 1993; 60 
FR 8149, Feb. 10, 1995; 61 FR 10277, Mar. 13, 1996]



Sec. 416.203  Initial determinations of SSI eligibility.

    (a) What happens when you apply for SSI benefits. When you apply for 
SSI benefits we will ask you for documents and any other information we 
need to make sure you meet all the requirements. We will ask for 
information about your income and resources and about other eligibility 
requirements and you must answer completely. We will help you get any 
documents you need but do not have.
    (b) How we determine your eligibility for SSI benefits. We determine 
that you are eligible for SSI benefits for a given month if you meet the 
requirements in Sec. 416.202 in that month. However, we usually 
determine the amount of your SSI benefits for that month based on your 
income in an earlier month (see Sec. 416.420). Thus, it is possible for 
you to meet the eligibility requirements in

[[Page 649]]

the given month but receive no benefit payment for that month.

[47 FR 3103, Jan. 22, 1982, as amended at 50 FR 48570, Nov. 26, 1985]



Sec. 416.204  Redeterminations of SSI eligibility.

    (a) Redeterminations defined. A redetermination is a review of your 
eligibility to make sure that you are still eligible and that you are 
receiving the right amount of SSI benefits. This review deals with the 
requirements for eligibility other than whether you are still disabled 
or blind. Continuation of disability or blindness reviews are discussed 
in Secs. 416.989 and 416.990.
    (b) When we make redeterminations. (1) We redetermine your 
eligibility on a scheduled basis at periodic intervals. The length of 
time between scheduled redeterminations varies depending on the 
likelihood that your situation may change in a way that affects your 
benefits.
    (2) We may also redetermine your eligibility when you tell us (or we 
otherwise learn) of a change in your situation which affects your 
eligibility or the amount of your benefit.
    (c) The period for which a redetermination applies: (1) The first 
redetermination applies to--
    (i) The month in which we make the redetermination;
    (ii) All months beginning with the first day of the latest of the 
following:
    (A) The month of first eligibility or re-eligibility; or
    (B) The month of application; or
    (C) The month of deferred or updated development; and
    (iii) Future months until the second redetermination.
    (2) All other redeterminations apply to--
    (i) The month in which we make the redetermination;
    (ii) All months beginning with the first day of the month the last 
redetermination was initiated; and
    (iii) Future months until the next redetermination.
    (3) If we made two redeterminations which cover the same month, the 
later redetermination is the one we apply to that month.

[47 FR 3103, Jan. 22, 1982, as amended at 50 FR 48570, Nov. 26, 1985; 58 
FR 64893, Dec. 10, 1993]

  Reasons Why You May Not Get SSI Benefits for Which You Are Otherwise 
                                Eligible



Sec. 416.210  You do not apply for other benefits.

    (a) General rule. You are not eligible for SSI benefits if you do 
not apply for all other benefits for which you may be eligible.
    (b) What ``other benefits'' includes. ``Other benefits'' includes 
any payments for which you can apply that are available to you on an 
ongoing or one-time basis of a type that includes annuities, pensions, 
retirement benefits, or disability benefits. For example, ``other 
benefits'' includes veterans' compensation and pensions, workers' 
compensation payments, Social Security insurance benefits and 
unemployment insurance benefits. ``Other benefits'' for which you are 
required to apply do not include payments that you may be eligible to 
receive from a fund established by a State to aid victims of crime. (See 
Sec. 416.1124(c)(17).)
    (c) Our notice to you. We will give you a dated, written notice that 
will tell you about any other benefits that we think you are likely to 
be eligible for. In addition, the notice will explain that your 
eligibility for SSI benefits will be affected if you do not apply for 
those other benefits.
    (d) What you must do to apply for other benefits. In order to apply 
for other benefits, you must file any required applications and do 
whatever else is needed so that your eligibility for the other benefits 
can be determined. For example, if any documents (such as a copy of a 
birth certificate) are required in addition to the application, you must 
submit them.
    (e) What happens if you do not apply for the other benefits. (1) If 
you do not apply for the other benefits within 30 days from the day that 
you receive our written notice, you are not eligible for SSI benefits. 
This means that if you are applying for SSI benefits, you cannot receive 
them. If you are receiving

[[Page 650]]

SSI benefits, your SSI benefits will stop. In addition, you will have to 
repay us for any SSI benefits that you received beginning with the month 
that you received our written notice. We assume (unless you prove 
otherwise) that you received our written notice 5 days after the date 
shown on the notice. We will also find that you are not eligible for SSI 
benefits if you file the required application for other benefits but do 
not take other necessary steps to obtain them.
    (2) We will not find you ineligible for SSI benefits if you have a 
good reason for not applying for the other benefits within the 30-day 
period or taking other necessary steps to obtain them. In determining 
whether a good reason exists, we will take into account any physical, 
mental, educational, or linguistic limitations (including any lack of 
facility with the English language) which may have caused you to fail to 
apply for other benefits. You may have a good reason if, for example--
    (i) You are incapacitated (because of illness you were not able to 
apply); or
    (ii) It would be useless for you to apply (you once applied for the 
benefits and the reasons why you were turned down have not changed).

[47 FR 3103, Jan. 22, 1982, as amended at 50 FR 5573, Feb. 11, 1985; 50 
FR 14211, April 11, 1985; 59 FR 1635, Jan. 12, 1994; 61 FR 1712, Jan. 
23, 1996]



Sec. 416.211  You are a resident of a public institution.

    (a) General rule. (1) Subject to the exceptions described in 
paragraphs (b), (c), and (d) of this section and Sec. 416.212, you are 
not eligible for SSI benefits for any month throughout which you are a 
resident of a public institution as defined in Sec. 416.201. In 
addition, if you are a resident of a public institution when you apply 
for SSI benefits and meet all other eligibility requirements, you cannot 
be eligible for benefits until the day of your release from the 
institution. The amount of your SSI benefits for the month of your 
release will be prorated (see subpart D of this part) beginning with the 
date of your release.
    (2) By throughout a month we mean that you reside in an institution 
as of the beginning of a month and stay the entire month. If you have 
been a resident of a public institution, you remain a resident if you 
are transferred from one public institution to another or if you are 
temporarily absent for a period of not more than 14 consecutive days. A 
person also is a resident of an institution throughout a month if he or 
she is born in the institution during the month and resides in the 
institution the rest of the month or resides in the institution as of 
the beginning of a month and dies in the institution during the month.
    (b) Exception--SSI benefits payable at a reduced rate. You may be 
eligible for SSI benefits at a reduced rate described in Sec. 416.414, 
if--
    (1)(i) You reside throughout a month in a public institution that is 
a medical care facility where Medicaid (title XIX of the Social Security 
Act) pays a substantial part (more than 50 percent) of the cost of your 
care; you are a child under the age of 18 residing throughout a month in 
a public institution that is a medical care facility where a substantial 
part (more than 50 percent) of the cost of your care is paid under a 
health insurance policy issued by a private provider of such insurance; 
or, you are a child under the age of 18 residing throughout a month in a 
public institution that is a medical care facility where a substantial 
part (more than 50 percent) of the cost of your care is paid by a 
combination of Medicaid payments and payments made under a health 
insurance policy issued by a private provider of such insurance; or
    (ii) You reside for part of a month in a public institution and the 
rest of the month in a public institution or private medical facility 
where Medicaid pays a substantial part (more than 50 percent) of the 
cost of your care; you are a child under the age of 18 residing for part 
of a month in a public institution and the rest of the month in a public 
institution or private medical facility where a substantial part (more 
than 50 percent) of the cost of your care is paid under a health 
insurance policy issued by a private provider of such insurance; or you 
are a child under the age of 18 residing for part of a month in a public 
institution and the rest of the month in a public institution or private 
medical facility where a substantial part (more than 50 percent)

[[Page 651]]

of the cost of your care is paid by a combination of Medicaid payments 
and payments made under a health insurance policy issued by a private 
provider; and
    (2) You are ineligible in that month for a benefit described in 
Sec. 416.212 that is payable to a person temporarily confined in a 
medical facility.
    (c) Exception for publicly operated community residences which serve 
no more than 16 residents. (1) General rule. If you are a resident of a 
publicly operated community residence which serves no more than 16 
residents, you may be eligible for SSI benefits.
    (2) Services that a facility must provide in order to be a community 
residence. To be a community residence, a facility must provide food and 
shelter. In addition, it must make available some other services. For 
example, the other services could be--
    (i) Social services;
    (ii) Help with personal living activities;
    (iii) Training in socialization and life skills; or
    (iv) Providing occasional or incidental medical or remedial care.
    (3) Serving no more than 16 residents. A community residence serves 
no more than 16 residents if--
    (i) It is designed and planned to serve no more than 16 residents, 
or the design and plan were changed to serve no more than 16 residents; 
and
    (ii) It is in fact serving 16 or fewer residents.
    (4) Publicly operated. A community residence is publicly operated if 
it is operated or controlled by the Federal government, a State, or a 
political subdivision of a State such as a city or county.
    (5) Facilities which are not a publicly operated community 
residence. If you live in any of the following facilities, you are not a 
resident of a publicly operated community residence:
    (i) A residential facility which is on the grounds of or next to a 
large institution or multipurpose complex;
    (ii) An educational or vocational training institution whose main 
function is to provide an approved, accredited, or recognized program to 
some or all of those who live there;
    (iii) A jail or other facility where the personal freedom of anyone 
who lives there is restricted because that person is a prisoner, is 
being held under court order, or is being held until charges against 
that person are disposed of; or
    (iv) A medical care facility (defined in Sec. 416.201).
    (d) Exception for residents of public emergency shelters for the 
homeless. For months after December 1987, if you are a resident of a 
public emergency shelter for the homeless (defined in Sec. 416.201) you 
may be eligible for SSI benefits for any 6 months throughout which you 
reside in a shelter in any 9-month period (defined in Sec. 416.201). The 
6 months do not need to be consecutive and we will not count as part of 
the 6 months any prior months throughout which you lived in the shelter 
but did not receive SSI benefits. We will also not count any months 
throughout which you lived in the shelter and received SSI benefits 
prior to January 1988.
    Example:  You are receiving SSI benefits when you lose your home and 
enter a public emergency shelter for the homeless on March 10, 1988. You 
remain a resident of a shelter until October 10, 1988. Since you were 
not in the shelter throughout the month of March, you are eligible to 
receive your benefit for March without having this month count towards 
the 6-month period. The last full month throughout which you reside in 
the shelter is September 1988. Therefore, if you meet all eligibility 
requirements, you will also be paid benefits for April through September 
(6 months during the 9-month period September 1988 back through January 
1988). If you are otherwise eligible, you will receive your SSI benefit 
for October when you left the shelter, since you were not a resident of 
the shelter throughout that month.

[47 FR 3103, Jan. 22, 1982, as amended at 50 FR 51518, Dec. 18, 1985; 51 
FR 13492, Apr. 21, 1986; 51 FR 17332, May 12, 1986; 51 FR 34464, Sept. 
29, 1986; 54 FR 19164, May 4, 1989; 61 FR 10277, Mar. 13, 1996; 62 FR 
1055, Jan. 8, 1997]



Sec. 416.212  Continuation of full benefits in certain cases of medical confinement.

    (a) Benefits payable under section 1611(e)(1)(E) of the Social 
Security Act. Subject to eligibility and regular computation rules (see 
subparts B and D of this part), you are eligible for the benefits 
payable under section 1611(e)(1)(E) of the Social Security Act for up to 
2

[[Page 652]]

full months of medical confinement during which your benefits would 
otherwise be suspended because of residence in a public institution or 
reduced because of residence in a public or private institution where 
Medicaid pays a substantial part (more than 50 percent) of the cost of 
your care or, if you are a child under age 18, reduced because of 
residence in a public or private institution which receives payments 
under a health insurance policy issued by a private provider, or a 
combination of Medicaid and a health insurance policy issued by a 
private provider, pay a substantial part (more than 50 percent) of the 
cost of your care if--
    (1) You were eligible under either section 1619(a) or section 
1619(b) of the Social Security Act in the month before the first full 
month of residence in an institution;
    (2) The institution agrees that no portion of these benefits will be 
paid to or retained by the institution excepting nominal sums for 
reimbursement of the institution for any outlay for a recipient's 
personal needs (e.g., personal hygiene items, snacks, candy); and
    (3) The month of your institutionalization is one of the first 2 
full months of a continuous period of confinement.
    (b) Benefits payable under section 1611(e)(1)(G) of the Social 
Security Act. (1) Subject to eligibility and regular computation rules 
(see subparts B and D of this part), you are eligible for the benefits 
payable under section 1611(e)(1)(G) of the Social Security Act for up to 
3 full months of medical confinement during which your benefits would 
otherwise be suspended because of residence in a public institution or 
reduced because of residence in a public or private institution where 
Medicaid pays a substantial part (more than 50 percent) of the cost of 
your care or, if you are a child under age 18, reduced because of 
residence in a public institution which receives payments under a health 
insurance policy issued by a private provider, or a combination of 
Medicaid and a health insurance policy issued by a private provider, pay 
a substantial part (more than 50 percent) of the cost of your care if--
    (i) You were eligible for SSI cash benefits and/or federally 
administered State supplementary payments for the month immediately 
prior to the first full month you were a resident in such institution;
    (ii) The month of your institutionalization is one of the first 3 
full months of a continuous period of confinement;
    (iii) A physician certifies, in writing, that you are not likely to 
be confined for longer than 90 full consecutive days following the day 
you entered the institution, and the certification is submitted to SSA 
no later than the day of discharge or the 90th full day of confinement, 
whichever is earlier; and
    (iv) You need to pay expenses to maintain the home or living 
arrangement to which you intend to return after institutionalization and 
evidence regarding your need to pay these expenses is submitted to SSA 
no later than the day of discharge or the 90th full day of confinement, 
whichever is earlier.
    (2) We will determine the date of submission of the evidence 
required in paragraphs (b)(1) (iii) and (iv) of this section to be the 
date we receive it or, if mailed, the date of the postmark.
    (c) Prohibition against using benefits for current maintenance. If 
the recipient is a resident in an institution, the recipient or his or 
her representative payee will not be permitted to pay the institution 
any portion of benefits payable under section 1611(e)(1)(G) excepting 
nominal sums for reimbursement of the institution for any outlay for the 
recipient's personal needs (e.g., personal hygiene items, snacks, 
candy). If the institution is the representative payee, it will not be 
permitted to retain any portion of these benefits for the cost of the 
recipient's current maintenance excepting nominal sums for reimbursement 
for outlays for the recipient's personal needs.

[61 FR 10277, Mar. 13, 1996, as amended at 62 FR 1055, Jan. 8, 1997]



Sec. 416.213  You do not accept vocational rehabilitation services.

    If you are disabled or blind, you must accept any appropriate 
vocational rehabilitation services offered to you by the State agency to 
which we refer you. If you refuse these services, you are not eligible 
for benefits unless you have a good reason for not accepting

[[Page 653]]

them. The rules on vocational rehabilitation services are in subpart Q.

[47 FR 3103, Jan. 22, 1982. Redesignated at 61 FR 10277, Mar. 13, 1996]



Sec. 416.214  You are disabled and drug addiction or alcoholism is a contributing factor material to the determination of disability.

    (a) If you do not comply with treatment requirements. If you receive 
benefits because you are disabled and drug addiction or alcoholism is a 
contributing factor material to the determination of disability (see 
Sec. 416.935), you must avail yourself of any appropriate treatment for 
your drug addiction or alcoholism at an approved institution or facility 
when this treatment is available and make progress in your treatment. 
You are not eligible for SSI benefits beginning with the month after the 
month you are notified in writing that we determined that you have 
failed to comply with the treatment requirements. If your benefits are 
suspended because you failed to comply with treatment requirements, you 
will not be eligible to receive benefits until you have demonstrated 
compliance with treatment for a period of time, as specified in 
Sec. 416.1326. The rules regarding treatment for drug addiction and 
alcoholism are in subpart I of this part.
    (b) If you previously received 36 months of SSI or Social Security 
benefits. You are not eligible for SSI benefits by reason of disability 
on the basis of drug addiction or alcoholism as described in 
Sec. 416.935 if--
    (1) You previously received a total of 36 months of SSI benefits on 
the basis of disability and drug addiction or alcoholism was a 
contributing factor material to the determination of disability for 
months beginning March 1995, as described in Sec. 416.935. Not included 
in these 36 months are months before March 1995 and months for which 
your benefits were suspended for any reason. The 36-month limit is no 
longer effective for months beginning after September 2004; or
    (2) You previously received a total of 36 months of Social Security 
benefits counted in accordance with the provisions of Secs. 404.316, 
404.337, and 404.352 by reason of disability on the basis of drug 
addiction or alcoholism as described in Sec. 404.1535.

[60 FR 8149, Feb. 10, 1995. Redesignated at 61 FR 10277, Mar. 13, 1996]



Sec. 416.215  You leave the United States.

    You lose your eligibility for SSI benefits for any month during all 
of which you are outside of the United States. If you are outside of the 
United States for 30 days or more in a row, you are not considered to be 
back in the United States until you are back for 30 days in a row. You 
may again be eligible for SSI benefits in the month in which the 30 days 
end if you continue to meet all other eligibility requirements.

By United States, we mean the 50 States, the District of Columbia, and 
the Northern Mariana Islands.

[47 FR 3103, Jan. 22, 1982. Redesignated at 61 FR 10277, Mar. 13, 1996]



Sec. 416.216  You are a child of armed forces personnel living overseas.

    (a) General rule. You may be eligible for continuation of SSI 
benefits if you live overseas and if--
    (1) You are a child as described in Sec. 416.1856;
    (2) You are a citizen of the United States;
    (3) You are living with a parent as described in Sec. 416.1881 who 
is a member of the armed forces of the United States assigned to 
permanent duty ashore outside the United States; and
    (4) You were eligible for an SSI benefit (including any federally 
administered State supplementary payment) for the month before your 
parent reported for such duty.
    (b) Living with. You are considered to be living with your parent 
who is a member of the armed forces if--
    (1) You physically live with the parent who is a member of the armed 
forces overseas; or
    (2) You are not living in the same household as the military parent 
but your presence overseas is due to his or her permanent duty 
assignment.

[58 FR 4897, Jan. 19, 1993; 58 FR 9597, Feb. 22, 1993, as amended at 59 
FR 41400, Aug. 12, 1994. Redesignated at 61 FR 10277, Mar. 13, 1996]

[[Page 654]]

     Eligibility for Increased Benefits Because of Essential Persons



Sec. 416.220  General.

    If you are a qualified individual and have an essential person you 
may be eligible for increased benefits. You may be a qualified 
individual and have an essential person only if you received benefits 
under a State assistance plan approved under title I, X, XIV, or XVI 
(AABD) of the Act for December 1973. Definitions and rules that apply to 
qualified individuals and essential persons are discussed in 
Secs. 416.221 through 416.223.



Sec. 416.221  Who is a qualified individual.

    You are a qualified individual if--
    (a) You received aid or assistance for the month of December 1973 
under a State plan approved under title I, X, XIV, or XVI (AABD) of the 
Act;
    (b) The State took into account the needs of another person in 
deciding your need for the State assistance for December 1973;
    (c) That other person was living in your home in December 1973; and
    (d) That other person was not eligible for State assistance for 
December 1973.



Sec. 416.222  Who is an essential person.

    (a) General rule. A person is an essential person if--
    (1) That person has continuously lived in the home of the same 
qualified individual since December 1973;
    (2) That person was not eligible for State assistance for December 
1973;
    (3) That person was never eligible for SSI benefits in his or her 
own right or as an eligible spouse; and
    (4) There are State records which show that under a State plan in 
effect for June 1973, the State took that person's needs into account in 
determining the qualified individual's need for State assistance for 
December 1973.

Any person who meets these requirements is an essential person. This 
means that the qualified individual can have more than one essential 
person.
    (b) Absence of an essential person from the home of a qualified 
individual. An essential person may be temporarily absent from the house 
of a qualified individual and still be an essential person. For example, 
the essential person could be hospitalized. We consider an absence to 
temporary if--
    (1) The essential person intends to return;
    (2) The facts support this intention;
    (3) It is likely that he or she will return; and
    (4) The absence is not longer than 90 days.
    (c) Absence of a qualified individual from his or her home. You may 
be temporarily absent from your home and still have an essential person. 
For example, you could be hospitalized. We consider an absence to be 
temporary if--
    (1) You intend to return;
    (2) The facts support your intention;
    (3) It is likely that you will return; and
    (4) Your absence does not exceed six months.
    (d) Essential person becomes eligible for SSI benefits. If an 
essential person becomes eligible for SSI benefits, he or she will no 
longer be an essential person beginning with the month that he or she 
becomes eligible for the SSI benefits.



Sec. 416.223  What happens if you are a qualified individual.

    (a) Increased SSI benefits. We may increase the amount of your SSI 
benefits if--
    (1) You are a qualified individual; and
    (2) You have one or more essential persons in your home.

In subpart D, we explain how these increased benefits are calculated.
    (b) Income and resource limits. If you are a qualified individual, 
we consider the income and resources of an essential person in your home 
to be yours. You are eligible for increased SSI benefits if--
    (1) Your resources which are counted do not exceed the limit for SSI 
eligibility purposes (see subpart L); and
    (2) Your income which is counted for SSI eligibility purposes (see 
subpart K) does not exceed the sum of--
    (i) The SSI Federal benefit rate (see subpart D); and
    (ii) The proper number of essential person increments (for the value 
of an essential person increment see subpart D). One essential person 
increment is

[[Page 655]]

added to the SSI Federal benefit rate for each essential person in your 
home.
    (c) Excluding the income and resources of an essential person. (1) 
While an essential person increment increases your SSI Federal benefit 
rate, that person's income which we consider to be yours may actually 
result in a lower monthly payment to you. We will discuss this with you 
and explain how an essential person affects your benefit. If you choose 
to do so, you may ask us in writing to determine your eligibility 
without your essential person or, if you have more than one essential 
person, without one or more of your essential persons. We will then 
figure the amount of your SSI benefits without counting as your own 
income and resources of the essential persons that you specify and we 
will end the essential person increment for those essential persons. You 
should consider this carefully because once you make the request, you 
cannot withdraw it. We will make the change beginning with the month 
following the month that you make the request.
    (2) We will not include the income and resources of the essential 
person if the person's income or resources would cause you to lose your 
eligibility. The loss of the essential person increment will be 
permanent.



Sec. 416.250  Experimental, pilot, and demonstration projects in the SSI program.

    (a) Authority and purpose. Section 1110(b) of the Act authorizes the 
Secretary to develop and conduct experimental, pilot, and demonstration 
projects to promote the objectives or improve the administration of the 
SSI program. These projects will test the advantages of altering certain 
requirements, conditions, or limitations for recipients and test 
different administrative methods that apply to title XVI applicants and 
recipients.
    (b) Altering benefit requirements, limitations or conditions. 
Notwithstanding any other provision of this part, the Secretary is 
authorized to waive any of the requirements, limitations or conditions 
established under title XVI of the Act and impose additional 
requirements, limitations or conditions for the purpose of conducting 
experimental, pilot, or demonstration projects. The projects will alter 
the provisions that currently apply to applicants and recipients to test 
their effect on the program. If, as a result of participation in a 
project under this section, a project participant becomes ineligible for 
Medicaid benefits, the Secretary shall make arrangements to extend 
Medicaid coverage to such participant and shall reimburse the States for 
any additional expenses incurred due to such continued participation.
    (c) Applicability and scope--(1) Participants and nonparticipants. 
If you are selected to participate in an experimental, pilot, or 
demonstration project, we may temporarily set aside one or more current 
requirements, limitations or conditions of eligibility and apply 
alternative provisions to you. We may also modify current methods of 
administering title XVI as part of a project and apply alternative 
procedures or policies to you. The alternative provisions or methods of 
administration used in the projects will not substantially reduce your 
total income or resources as a result of your participation or 
disadvantage you in comparison to current provisions, policies, or 
procedures. If you are not selected to participate in the experimental, 
or pilot, or demonstration projects (or if you are placed in a control 
group which is not subject to the alternative requirements, limitations, 
or conditions) we will continue to apply the current requirements, 
limitations or conditions of eligibility to you.
    (2) Alternative provisions or methods of administration. The 
alternative requirements, limitations or conditions that apply to you in 
an experimental, pilot, or demonstration project may include any of the 
factors needed for aged, blind, or disabled persons to be eligible for 
SSI benefits. Experiments that we conduct will include, to the extent 
feasible, applicants and recipients who are under age 18 as well as 
adults and will include projects to ascertain the feasibility of 
treating drug addicts and alcoholics.
    (d) Selection of participants. Participation in the SSI project will 
be on a voluntary basis. The voluntary written consent necessary in 
order to participate in any experimental, pilot, or

[[Page 656]]

demonstration project may be revoked by the participant at any time.
    (e) Duration of experimental, pilot, and demonstration projects. A 
notice describing each experimental, pilot, or demonstration project 
will be published in the Federal Register before each project is placed 
in operation. Each experimental, pilot and demonstration project will 
have a termination date (up to 10 years from the start of the project).

[48 FR 7576, Feb. 23, 1983, as amended at 52 FR 37605, Oct. 8, 1987]

  Special Provisions for People Who Work Despite a Disabling Impairment



Sec. 416.260  General.

    The regulations in Secs. 416.260 through 416.269 describe the rules 
for determining eligibility for special SSI cash benefits and for 
special SSI eligibility status for an individual who works despite a 
disabling impairment. Under these rules an individual who works despite 
a disabling impairment may qualify for special SSI cash benefits and in 
most cases for Medicaid benefits when his or her gross earned income 
exceeds the applicable dollar amount which ordinarily represents SGA 
described in Sec. 416.974(b)(2). The calculation of this gross earned 
income amount, however, is not to be considered an actual SGA 
determination. Also, for purposes of determining eligibility or 
continuing eligibility for Medicaid benefits, a blind or disabled 
individual (no longer eligible for regular SSI benefits or for special 
SSI cash benefits) who, except for earnings, would otherwise be eligible 
for SSI cash benefits may be eligible for a special SSI eligibility 
status under which he or she is considered to be a blind or disabled 
individual receiving SSI benefits. We explain the rules for eligibility 
for special SSI cash benefits in Secs. 416.261 and 416.262. We explain 
the rules for the special SSI eligibility status in Secs. 416.264 
through 416.269.

[59 FR 41403, Aug. 12, 1994]



Sec. 416.261  What are special SSI cash benefits and when are they payable.

    Special SSI cash benefits are benefits that we may pay you in lieu 
of regular SSI benefits because your gross earned income in a month of 
initial eligibility for regular SSI benefits exceeds the amount 
ordinarily considered to represent SGA under Sec. 416.974(b)(2). You 
must meet the eligibility requirements in Sec. 416.262 in order to 
receive special SSI cash benefits. Special SSI cash benefits are not 
payable for any month in which your countable income exceeds the limits 
established for the SSI program (see subpart K of this part). If you are 
eligible for special SSI cash benefits, we consider you to be a disabled 
individual receiving SSI benefits for purposes of eligibility for 
Medicaid. We compute the amount of special SSI cash benefits according 
to the rules in subpart D of this part. If your State makes 
supplementary payments which we administer under a Federal-State 
agreement, and if your State elects to supplement the special SSI cash 
benefits, the rules in subpart T of this part will apply to these 
payments.

[47 FR 15324, Apr. 9, 1982, as amended at 50 FR 46763, Nov. 13, 1985; 59 
FR 41403, Aug. 12, 1994]



Sec. 416.262  Eligibility requirements for special SSI cash benefits.

    You are eligible for special SSI cash benefits if you meet the 
following requirements--
    (a) You were eligible for a regular SSI benefit or a federally 
administered State supplementary payment (see Sec. 416.2001) in a month 
before the month for which we are determining your eligibility for 
special SSI cash benefits as long as that month was not in a prior 
period of eligibility which has terminated according to Secs. 416.1331 
through 416.1335;
    (b) In the month for which we are making the determination, your 
gross earned income exceeds the amount ordinarily considered to 
represent SGA under Sec. 416.974(b)(2);
    (c) You continue to have a disabling impairment;
    (d) If your disability is based on a determination that drug 
addiction or alcoholism is a contributing factor material to the 
determination of disability as described in Sec. 416.935, you have not 
yet received SSI cash benefits, special SSI cash benefits, or special 
SSI eligibility status for a total of 36 months, or Social Security 
benefit payments

[[Page 657]]

when treatment was available for a total of 36 months; and
    (e) You meet all the nondisability requirements for eligibility for 
SSI benefits (see Sec. 416.202).

We will follow the rules in this subpart in determining your eligibility 
for special SSI cash benefits.

[47 FR 15324, Apr. 9, 1982, as amended at 59 FR 41404, Aug. 12, 1994; 60 
FR 8149, Feb. 10, 1995]



Sec. 416.263  No additional application needed.

    We do not require you to apply for special cash benefits nor is it 
necessary for you to apply to have the special SSI eligibility status 
determined. We will make these determinations automatically.

[47 FR 15324, Apr. 9, 1982]



Sec. 416.264  When does the special SSI eligibility status apply.

    The special SSI eligibility status applies for the purposes of 
establishing or maintaining your eligibility for Medicaid. For these 
purposes we continue to consider you to be a blind or disabled 
individual receiving benefits even though you are in fact no longer 
receiving regular SSI benefits or special SSI cash benefits. You must 
meet the eligibility requirements in Sec. 416.265 in order to qualify 
for the special SSI eligibility status. Special SSI eligibility status 
also applies for purposes of reacquiring status as eligible for regular 
SSI benefits or special SSI cash benefits.

[59 FR 41404, Aug. 12, 1994]



Sec. 416.265  Requirements for the special SSI eligibility status.

    In order to be eligible for the special SSI eligibility status, you 
must have been eligible to receive a regular SSI benefit or a federally 
administered State supplementary payment (see Sec. 416.2001) in a month 
before the month for which we are making the special SSI eligibility 
status determination. The month you were eligible for a regular SSI 
benefit or a federally administered State supplementary payment may not 
be in a prior period of eligibility which has been terminated according 
to Secs. 416.1331 through 416.1335. For periods prior to May 1, 1991, 
you must be under age 65. Also, we must establish that:
    (a) You are blind or you continue to have a disabling impairment 
which, if drug addiction or alcoholism is a contributing factor material 
to the determination of disability as described in Sec. 416.935, has not 
resulted in your receiving SSI cash benefits, special SSI cash benefits, 
or special SSI eligibility status for a total of 36 months, or Social 
Security benefit payments when treatment was available for a total of 36 
months;
    (b) Except for your earnings, you meet all the nondisability 
requirements for eligibility for SSI benefits (see Sec. 416.202);
    (c) The termination of your eligibility for Medicaid would seriously 
inhibit your ability to continue working (see Sec. 416.268); and
    (d) Your earnings after the exclusions in Sec. 416.1112(c) (6), (8), 
and (9) are not sufficient to allow you to provide yourself with a 
reasonable equivalent of the benefits (SSI benefits, federally 
administered State supplementary payments, Medicaid, and publicly-funded 
attendant care services, including personal care assistance under 
Sec. 416.269(d)) which would be available to you if you did not have 
those earnings (see Sec. 416.269).

[47 FR 15324, Apr. 9, 1982, as amended at 59 FR 41404, Aug. 12, 1994; 59 
FR 49291, Sept. 27, 1994; 60 FR 8149, Feb. 10, 1995]



Sec. 416.266  Continuation of SSI status for Medicaid

    If we stop your benefits because of your earnings and you are 
potentially eligible for the special SSI eligibility status you will 
continue to be considered an SSI recipient for purposes of eligibility 
for Medicaid during the time it takes us to determine whether the 
special eligibility status applies to you.

[47 FR 15324, Apr. 9, 1982]



Sec. 416.267  General.

    We determine whether the special SSI eligibility status applies to 
you by verifying that you continue to be blind or have a disabling 
impairment by applying the rules in subpart I of this part, and by 
following the rules in this

[[Page 658]]

subpart to determine whether you meet the requirements in 
Sec. 416.265(b). If you do not meet these requirements we determine that 
the special eligibility status does not apply. If you meet these 
requirements, then we apply special rules to determine if you meet the 
requirements of Sec. 416.265(c) and (d). If for the period being 
evaluated, you meet all of the requirements in Sec. 416.265 we determine 
that the special status applies to you.

[47 FR 15324, Apr. 9, 1982]



Sec. 416.268  What is done to determine if you must have Medicaid in order to work.

    For us to determine that you need Medicaid benefits in order to 
continue to work, you must establish:
    (a) That you are currently using or have received services which 
were paid for by Medicaid during the period which began 12 months before 
our first contact with you to discuss this use; or
    (b) That you expect to use these services within the next 12 months; 
or
    (c) That you would need Medicaid to pay for unexpected medical 
expenses in the next 12 months.

[59 FR 41404, Aug. 12, 1994]



Sec. 416.269  What is done to determine whether your earnings are too low to provide comparable benefits and services you would receive in the absence of those 
          earnings.

    (a) What we determine. We must determine whether your earnings are 
too low to provide you with benefits and services comparable to the 
benefits and services you would receive if you did not have those 
earnings (see Sec. 416.265(d)).
    (b) How the determination is made. In determining whether your 
earnings are too low to provide you with benefits and services 
comparable to the benefits and services you would receive if you did not 
have those earnings, we compare your anticipated gross earnings (or a 
combination of anticipated and actual gross earnings, as appropriate) 
for the 12-month period beginning with the month for which your special 
SSI eligibility status is being determined to a threshold amount for 
your State of residence. This threshold amount consists of the sum for a 
12-month period of two items, as follows:
    (1) The amount of gross earnings including amounts excluded under 
Sec. 416.1112(c) (4), (5) and (7) that would reduce to zero the Federal 
SSI benefit and the optional State supplementary payment for an 
individual with no other income living in his or her own household in 
the State where you reside. This amount will vary from State to State 
depending on the amount of the State supplementary payment; and
    (2) The average expenditures for Medicaid benefits for disabled and 
blind SSI cash recipients, including recipients of federally 
administered State supplementary payments only, in your State of 
residence.
    (c) How the eligibility requirements are met. (1) You meet the 
requirements in Sec. 416.265(d) if the comparison shows that your gross 
earnings are equal to or less than the applicable threshold amount for 
your State, as determined under paragraphs (b) (1) and (2) of this 
section. However, if the comparison shows that these earnings exceed the 
applicable threshold amount for your State, we will establish (and use 
in a second comparison) an individualized threshold taking into account 
the total amount of:
    (i) The amount determined under paragraph (b)(1) of this section 
that would reduce to zero the Federal SSI benefit and State 
supplementary payment for your actual living arrangement;
    (ii) The average Medicaid expenditures for your State of residence 
under paragraph (b)(2) of this section or, if higher, your actual 
medical expenditures in the appropriate 12-month period;
    (iii) Any amounts excluded from your income as impairment-related 
work expenses (see Sec. 416.1112(c)(6)), work expenses of the blind (see 
Sec. 416.1112(c)(8)), and income used or set aside for use under an 
approved plan for achieving self support (see Sec. 416.1112(c)(9)); and
    (iv) the value of any publicly-funded attendant care services as 
described in paragraph (d) of this section (including personal care 
assistance).

[[Page 659]]

    (2) If you have already completed the 12-month period for which we 
are determining your eligibility, we will consider only the expenditures 
made in that period.
    (d) Attendant care services. Expenditures for attendant care 
services (including personal care assistance) which would be available 
to you in the absence of earnings that make you ineligible for SSI cash 
benefits will be considered in the individualized threshold (as 
described in paragraph (c)(1) of this section) if we establish that they 
are:
    (1) Provided by a paid attendant;
    (2) Needed to assist with work-related and/or personal functions; 
and
    (3) Paid from Federal, State, or local funds.
    (e) Annual update of information. The threshold amounts used in 
determinations of sufficiency of earnings will be based on information 
and data updated no less frequently than annually.

[59 FR 41404, Aug. 12, 1994; 59 FR 49291, Sept. 27, 1994]



                    Subpart C--Filing of Applications

    Authority:  Secs. 702(a)(5), 1611, and 1631 (a), (d), and (e) of the 
Social Security Act (42 U.S.C. 902(a)(5), 1382, and 1383 (a), (d), and 
(e)).

    Source:  45 FR 48120, July 18, 1980, unless otherwise noted.

                           General Provisions



Sec. 416.301  Introduction.

    This subpart contains the rules for filing a claim for supplemental 
security income (SSI) benefits. It tells you what an application is, who 
may sign it, who must file one to be eligible for benefits, the period 
of time it is in effect, and how it may be withdrawn. It also tells you 
when a written statement or an oral inquiry may be considered to 
establish an application filing date.



Sec. 416.302  Definitions.

    For the purpose of this subpart--
    Benefits means any payments made under the SSI program. SSI benefits 
also include any federally administered State supplementary payments.
    Claimant means the person who files an application for himself or 
herself or the person on whose behalf an application is filed.
    We or us means the Social Security Administration (SSA).
    You or your means the person who applies for benefits, the person 
for whom an application is filed or anyone who may consider applying for 
benefits.



Sec. 416.305  You must file an application to receive supplemental security income benefits.

    (a) General rule. In addition to meeting other requirements, you 
must file an application to become eligible to receive benefits. If you 
believe you may be eligible, you should file an application as soon as 
possible. Filing an application will--
    (1) Permit us to make a formal determination whether or not you are 
eligible to receive benefits;
    (2) Assure that you receive benefits for any months you are 
eligible; and
    (3) Give you the right to appeal if you disagree with the 
determination.
    (b) Exceptions. You need not file a new application if--
    (1) You have been receiving benefits as an eligible spouse and are 
no longer living with your husband or wife;
    (2) You have been receiving benefits as an eligible spouse of an 
eligible individual who has died;
    (3) You have been receiving benefits because you are disabled or 
blind and you are 65 years old before the date we determine that you are 
no longer blind or disabled.
    (4) A redetermination of your eligibility is being made and it is 
found that you were not eligible for benefits during any part of a 
period for which we are making a redetermination but you currently meet 
the requirements for eligibility;
    (5) You are notified that your payments of SSI benefits will be 
stopped because you are no longer eligible and you again meet the 
requirements for eligibility before your appeal rights are exhausted.

[45 FR 48120, July 18, 1980, as amended at 60 FR 16374, Mar. 30, 1995]

[[Page 660]]

                              Applications



Sec. 416.310  What makes an application a claim for benefits.

    An application will be considered a claim for benefits, if the 
following requirements are met:
    (a) An application form prescribed by us must be filled out.
    (b) It must be filed at a social security office, at another Federal 
or State office we have designated to receive applications for us, or 
with a person we have authorized to receive applications for us. See 
Sec. 416.325.
    (c) The claimant or someone who may sign an application for the 
claimant must sign the application. See Secs. 416.315 and 416.320.
    (d) The claimant must be alive at the time the application is filed. 
See Secs. 416.340, 416.345, and 416.351 for exceptions.

[45 FR 48120, July 18, 1980, as amended at 59 FR 44926, Aug. 31, 1994]



Sec. 416.315  Who may sign an application.

    We will determine who may sign an application according to the 
following rules:
    (a) If you are 18 years old or over, mentally competent, and 
physically able, you must sign your own application. If you are 16 years 
old or older and under age 18, you may sign the application if you are 
mentally competent, have no court appointed representative, and are not 
in the care of any other person or institution.
    (b) If the claimant is under age 18, or is mentally incompetent, or 
is physically unable to sign the application, a court appointed 
representative or a person who is responsible for the care of the 
claimant, including a relative, may sign the application. If the 
claimant is in the care of an institution, the manager or principal 
officer of the institution may sign the application.
    (c) To prevent a claimant from losing benefits because of a delay in 
filing an application when there is a good reason why the claimant 
cannot sign an application, we may accept an application signed by 
someone other than a person described in this section.
    Example:  Mr. Smith comes to a Social Security office to file an 
application for SSI disability benefits for Mr. Jones. Mr. Jones, who 
lives alone, just suffered a heart attack and is in the hospital. He 
asked Mr. Smith, whose only relationship is that of a neighbor and 
friend, to file the application for him. We will accept an application 
signed by Mr. Smith since it would not be possible to have Mr. Jones 
sign and file the application at this time. SSI benefits are payable 
starting with the day an application is filed or the date all other 
requirements for eligibility are met, whichever is later. If Mr. Smith 
could not sign an application for Mr. Jones, a loss of benefits would 
result if it is later determined that Mr. Jones is in fact disabled.

[45 FR 48120, July 18, 1980, as amended at 51 FR 13492, Apr. 21, 1986]



Sec. 416.320  Evidence of authority to sign an application for another.

    (a) A person who signs an application for someone else will be 
required to provide evidence of his or her authority to sign the 
application for the person claiming benefits under the following rules:
    (1) If the person who signs is a court appointed representative, he 
or she must submit a certificate issued by the court showing authority 
to act for the claimant.
    (2) If the person who signs is not a court appointed representative, 
he or she must submit a statement describing his or her relationship to 
the claimant. The statement must also describe the extent to which the 
person is responsible for the care of the claimant. This latter 
information will not be requested if the application is signed by a 
parent for a child with whom he or she is living. If the person signing 
is the manager or principal officer of an institution he or she should 
show his or her title.
    (b) We may, at any time, require additional evidence to establish 
the authority of a person to sign an application for someone else.

[45 FR 48120, July 18, 1980, as amended at 51 FR 13493, Apr. 21, 1986]



Sec. 416.325  When an application is considered filed.

    (a) General rule. We consider an application for SSI benefits filed 
on the day it is received by an employee at any social security office, 
by someone at another Federal or State office designated to receive 
applications for us,

[[Page 661]]

or by a person we have authorized to receive applications for us.
    (b) Exceptions. (1) When we receive an application that is mailed, 
we will use the date shown by the United States postmark as the filing 
date if using the date the application is received will result in a loss 
of benefits. If the postmark is unreadable or there is no postmark, we 
will use the date the application is signed (if dated) or 5 days before 
the day we receive the signed application, whichever date is later.
    (2) We consider an application to be filed on the date of the filing 
of a written statement or the making of an oral inquiry under the 
conditions in Secs. 416.340, 416.345 and 416.350.
    (3) We will establish a ``deemed'' filing date of an application in 
a case of misinformation under the conditions described in Sec. 416.351. 
The filing date of the application will be a date determined under 
Sec. 416.351(b).

[45 FR 48120, July 18, 1980, as amended at 51 FR 13493, Apr. 21, 1986; 
59 FR 44926, Aug. 31, 1994]

                 Effective Filing Period of Application



Sec. 416.330  Filing before the first month you meet the requirements for eligibility.

    If you file an application for SSI benefits before the first month 
you meet all the other requirements for eligibility, the application 
will remain in effect until we make a final determination on your 
application unless there is a hearing decision on your application. If 
there is a hearing decision, your application will remain in effect 
until the hearing decision is issued.
    (a) If you meet all the requirements for eligibility while your 
application is in effect, we will pay you benefits from the first month 
that you meet all the requirements. The amount of such benefits is based 
on the number of days you meet all eligibility requirements beginning 
with the first day you meet all of the requirements through the end of 
the month.
    (b) If you first meet all the requirements for eligibility after the 
period for which your application was in effect, you must file a new 
application for benefits. In this case, we will pay you benefits only 
from the first month that you meet all the requirements based on the new 
application. The amount of such benefits is calculated as in 
Sec. 416.330(a) above.

[51 FR 13493, Apr. 21, 1986]



Sec. 416.335  Filing in or after the month you meet the requirements for eligibility.

    When you file an application in the month that you meet all the 
other requirements for eligibility, your application is good for payment 
as of the first day in the month that you meet all eligibility 
requirements. If you file an application after the month you first meet 
all the other requirements for eligibility, you cannot be paid for any 
months before the month you filed an application. See Secs. 416.340, 
416.345 and 416.350 on how a written statement or an oral inquiry made 
before the filing of the application form may affect the filing date of 
the application. The amount of SSI benefits you are paid in the first 
month that you meet all eligibility requirements is based on the number 
of days you meet all such requirements, starting with the first day on 
which you meet all eligibility requirements through the end of the 
month.

[51 FR 13493, Apr. 21, 1986]

       Filing Date Based Upon a Written Statement or Oral Inquiry



Sec. 416.340  Use of date of written statement as application filing date.

    We will use the date a written statement, such as a letter, an SSA 
questionnaire or some other writing, is received at a social security 
office, at another Federal or State office designated by us, or by a 
person we have authorized to receive applications for us as the filing 
date of an application for benefits, only if the use of that date will 
result in your eligibility for additional benefits. If the written 
statement is mailed, we will use the date the statement was mailed to us 
as shown by a United States postmark. If the postmark is unreadable or 
there is no postmark, we will use the date the statement is signed (if 
dated) or 5 days before the day we receive the written statement, 
whichever date is later, as

[[Page 662]]

the filing date of an application for benefits. In order for us to use 
your written statement to protect your filing date, the following 
requirements must be met:
    (a) The written statement shows an intent to claim benefits for 
yourself or for another person.
    (b) You, your spouse or a person who may sign an application for you 
signs the statement.
    (c) An application form signed by you or by a person who may sign an 
application for you is filed with us within 60 days after the date of a 
notice we will send telling of the need to file an application. The 
notice will say that we will make an initial determination of 
eligibility for SSI benefits if an application form is filed within 60 
days after the date of the notice. (We will send the notice to the 
claimant, or where he or she is a minor or incompetent, to the person 
who gave us the written statement.)
    (d)(1) The claimant is alive when the application is filed on a 
prescribed form, or
    (2) If the claimant dies after the written statement is filed, the 
deceased claimant's surviving spouse or parent(s) who could be paid the 
claimant's benefits under Sec. 416.542(b), or someone on behalf of the 
surviving spouse or parent(s) files an application form. If we learn 
that the claimant has died before the notice is sent or within 60 days 
after the notice but before an application form is filed, we will send a 
notice to such a survivor. The notice will say that we will make an 
initial determination of eligibility for SSI benefits only if an 
application form is filed on behalf of the deceased within 60 days after 
the date of the notice to the survivor.

[45 FR 48120, July 18, 1980, as amended at 51 FR 13493, Apr. 21, 1986; 
58 FR 52912, Oct. 13, 1993]



Sec. 416.345  Use of date of oral inquiry as application filing date.

    We will use the date of an oral inquiry about SSI benefits as the 
filing date of an application for benefits only if the use of that date 
will result in your eligibility for additional benefits and the 
following requirements are met:
    (a) The inquiry asks about the claimant's eligibility for SSI 
benefits.
    (b) The inquiry is made by the claimant, the claimant's spouse, or a 
person who may sign an application on the claimant's behalf as described 
in Sec. 416.315.
    (c) The inquiry, whether in person or by telephone, is directed to 
an office or an official described in Sec. 416.310(b).
    (d) The claimant or a person on his or her behalf as described in 
Sec. 416.315 files an application on a prescribed form within 60 days 
after the date of the notice we will send telling of the need to file an 
application. The notice will say that we will make an initial 
determination of eligibility for SSI benefits if an application form is 
filed within 60 days after the date of the notice. (We will send the 
notice to the claimant or, where he or she is a minor or incompetent, to 
the person who made the inquiry.)
    (e)(1) The claimant is alive when the application is filed on a 
prescribed form, or
    (2) If the claimant dies after the oral inquiry is made, the 
deceased claimant's surviving spouse or parent(s) who could be paid the 
claimant's benefits under Sec. 416.542(b), or someone on behalf of the 
surviving spouse or parent(s) files an application form. If we learn 
that the claimant has died before the notice is sent or within 60 days 
after the notice but before an application form is filed, we will send a 
notice to such a survivor. The notice will say that we will make an 
initial determination of eligibility for SSI benefits only if an 
application form is filed on behalf of the deceased within 60 days after 
the date of the notice to the survivor.

[45 FR 48120, July 18, 1980, as amended at 51 FR 13493, Apr. 21, 1986; 
58 FR 52912, Oct. 13, 1993]



Sec. 416.350  Treating a title II application as an oral inquiry about SSI benefits.

    (a) When a person applies for benefits under title II (retirement, 
survivors, or disability benefits) we will explain the requirements for 
receiving SSI benefits and give the person a chance to file an 
application for them if--

[[Page 663]]

    (1) The person is within 2 months of age 65 or older or it looks as 
if the person might qualify as a blind or disabled person, and
    (2) It is not clear that the person's title II benefits would 
prevent him or her from receiving SSI or any State supplementary 
benefits handled by the Social Security Administration.
    (b) If the person applying for title II benefits does not file an 
application for SSI on a prescribed form when SSI is explained to him or 
her, we will treat his or her filing of an application for title II 
benefits as an oral inquiry about SSI, and the date of the title II 
application form may be used to establish the SSI application date if 
the requirements of Sec. 416.345(d) and (e) are met.

               Deemed Filing Date Based on Misinformation



Sec. 416.351  Deemed filing date in a case of misinformation.

    (a) General. You may have considered applying for SSI benefits for 
yourself or for another person, and you may have contacted us in 
writing, by telephone or in person to inquire about filing an 
application for these benefits. It is possible that in responding to 
your inquiry, we may have given you misinformation about your 
eligibility for such benefits, or the eligibility of the person on whose 
behalf you were considering applying for benefits, which caused you not 
to file an application at that time. If this happened, and later an 
application for such benefits is filed with us, we may establish an 
earlier filing date under this section.
    Example 1:  Ms. Jones calls a Social Security office to inquire 
about filing an application for SSI benefits. During her conversation 
with an SSA employee, she tells the employee about her resources. The 
SSA employee tells Ms. Jones that because her countable resources are 
above the allowable limit, she would be ineligible for SSI benefits. The 
employee fails to consider certain resource exclusions under the SSI 
program which would have reduced Ms. Jones' countable resources below 
the allowable limit, making her eligible for benefits. Because Ms. Jones 
thought that she would be ineligible, she decides not to file an 
application for SSI benefits. Ms. Jones later reads about resource 
exclusions under the SSI program. She recontacts the Social Security 
office to file an SSI application, and alleges that she had been 
previously misinformed about her eligibility for SSI benefits. She files 
an application for SSI benefits, provides the information required under 
paragraph (f) of this section to show that an SSA employee provided 
misinformation, and requests a deemed filing date based upon her receipt 
of misinformation.
    Example 2:  Mr. Adams resides in a State which provides State 
supplementary payments that are administered by SSA under the SSI 
program. He telephones a Social Security office and tells an SSA 
employee that he does not have enough income to live on and wants to 
file for SSI benefits. Mr. Adams states that his only income is his 
monthly Social Security benefit check. The SSA employee checks Mr. 
Adams' Social Security record and advises him that he is ineligible for 
SSI benefits based on the amount of his monthly Social Security benefit. 
The employee does not consider whether Mr. Adams would be eligible for 
State supplementary payments. Because Mr. Adams was told that he would 
not be eligible for benefits under the SSI program, he does not file an 
application. The employee does not make a record of Mr. Adams' oral 
inquiry or take any other action. A year later, Mr. Adams speaks to a 
neighbor who receives the same Social Security benefit amount that Mr. 
Adams does, but also receives payments under the SSI program. Thinking 
the law may have changed, Mr. Adams recontacts a Social Security office 
and learns from an SSA employee that he would be eligible for State 
supplementary payments under the SSI program and that he could have 
received these payments earlier had he filed an application. Mr. Adams 
explains that he did not file an application earlier because he was told 
by an SSA employee that he was not eligible for SSI benefits. Mr. Adams 
files an application for the benefits, provides the information required 
under paragraph (f) of this section to show that an SSA employee 
provided misinformation, and requests a deemed filing date based on the 
misinformation provided to him earlier.
    (b) Deemed filing date of an application based on misinformation. 
Subject to the requirements and conditions in paragraphs (c) through (g) 
of this section, we may establish a deemed filing date of an application 
for SSI benefits under the following provisions.
    (1)(i) If we determine that you failed to apply for SSI benefits for 
yourself because we gave you misinformation about your eligibility for 
such benefits, we will deem an application for such benefits to have 
been filed with us on the later of--

[[Page 664]]

    (A) The date on which the misinformation was provided to you; or
    (B) The date on which you met all of the requirements for 
eligibility for such benefits, other than the requirement of filing an 
application.
    (ii) Before we may establish a deemed filing date of an application 
for benefits for you under paragraph (b)(1)(i) of this section, you or a 
person described in Sec. 416.315 must file an application for such 
benefits. If you die before an application for the benefits is filed 
with us, we will consider establishing a deemed filing date of an 
application for such benefits only if a person who would be qualified 
under Sec. 416.542(b) to receive any benefits due you, or someone on his 
or her behalf, files an application for the benefits.
    (2)(i) If you had authority under Sec. 416.315 to sign an 
application for benefits for another person, and we determine that you 
failed to apply for SSI benefits for that person because we gave you 
misinformation about that person's eligibility for such benefits, we 
will deem an application for such benefits to have been filed with us on 
the later of--
    (A) The date on which the misinformation was provided to you; or
    (B) The date on which the person met all of the requirements for 
eligibility for such benefits, other than the requirement of filing an 
application.
    (ii) Before we may establish a deemed filing date of an application 
for benefits for the person under paragraph (b)(2)(i) of this section, 
you, such person, or another person described in Sec. 416.315 must file 
an application for such benefits. If the person referred to in paragraph 
(b)(2)(i) of this section dies before an application for the benefits is 
filed with us, we will consider establishing a deemed filing date of an 
application for such benefits only if a person who would be qualified 
under Sec. 416.542(b) to receive any benefits due the deceased person, 
or someone on his behalf, files an application for the benefits.
    (c) Requirements concerning the misinformation. We apply the 
following requirements for purposes of paragraph (b) of this section.
    (1) The misinformation must have been provided to you by one of our 
employees while he or she was acting in his or her official capacity as 
our employee. For purposes of this section, an employee includes an 
officer of SSA.
    (2) Misinformation is information which we consider to be incorrect, 
misleading, or incomplete in view of the facts which you gave to the 
employee, or of which the employee was aware or should have been aware, 
regarding your particular circumstances, or the particular circumstances 
of the person referred to in paragraph (b)(2)(i) of this section. In 
addition, for us to find that the information you received was 
incomplete, the employee must have failed to provide you with the 
appropriate, additional information which he or she would be required to 
provide in carrying out his or her official duties.
    (3) The misinformation may have been provided to you orally or in 
writing.
    (4) The misinformation must have been provided to you in response to 
a specific request by you to us for information about your eligibility 
for benefits or the eligibility for benefits of the person referred to 
in paragraph (b)(2)(i) of this section for which you were considering 
filing an application.
    (d) Evidence that misinformation was provided. We will consider the 
following evidence in making a determination under paragraph (b) of this 
section.
    (1) Preferred evidence. Preferred evidence is written evidence which 
relates directly to your inquiry about your eligibility for benefits or 
the eligibility of another person and which shows that we gave you 
misinformation which caused you not to file an application. Preferred 
evidence includes, but is not limited to, the following--
    (i) A notice, letter, or other document which was issued by us and 
addressed to you; or
    (ii) Our record of your telephone call, letter, or in-person 
contact.
    (2) Other evidence. In the absence of preferred evidence, we will 
consider other evidence, including your statements about the alleged 
misinformation, to determine whether we gave you misinformation which 
caused you not to file an application. We will not find that we gave you 
misinformation,

[[Page 665]]

however, based solely on your statements. Other evidence which you 
provide or which we obtain must support your statements. Evidence which 
we will consider includes, but is not limited to, the following--
    (i) Your statements about the alleged misinformation, including 
statements about--
    (A) The date and time of the alleged contact(s);
    (B) How the contact was made, e.g., by telephone or in person;
    (C) The reason(s) the contact was made;
    (D) Who gave the misinformation; and
    (E) The questions you asked and the facts you gave us, and the 
questions we asked and the information we gave you at the time of the 
contact;
    (ii) Statements from others who were present when you were given the 
alleged misinformation, e.g., a neighbor who accompanied you to our 
office;
    (iii) If you can identify the employee or the employee can recall 
your inquiry about benefits--
    (A) Statements from the employee concerning the alleged contact, 
including statements about the questions you asked, the facts you gave, 
the questions the employee asked, and the information provided to you at 
the time of the alleged contact; and
    (B) Our assessment of the likelihood that the employee provided the 
alleged misinformation;
    (iv) An evaluation of the credibility and the validity of your 
allegations in conjunction with other relevant information; and
    (v) Any other information regarding your alleged contact.
    (e) Information which does not constitute satisfactory proof that 
misinformation was given. Certain kinds of information will not be 
considered satisfactory proof that we gave you misinformation which 
caused you not to file an application. Examples of such information 
include--
    (1) General informational pamphlets that we issue to provide basic 
program information;
    (2) The SSI Benefit Estimate Letter that is based on an individual's 
reported and projected income and is an estimate which can be requested 
at any time;
    (3) General information which we review or prepare but which is 
disseminated by the media, e.g., radio, television, magazines, and 
newspapers; and
    (4) Information provided by other governmental agencies, e.g., the 
Department of Veterans Affairs, the Department of Defense, State 
unemployment agencies, and State and local governments.
    (f) Claim for benefits based on misinformation. You may make a claim 
for benefits based on misinformation at any time. Your claim must 
contain information that will enable us to determine if we did provide 
misinformation to you about your eligibility for SSI benefits, or the 
eligibility of a person on whose behalf you were considering applying 
for benefits, which caused you not to file an application for the 
benefits. Specifically, your claim must be in writing and it must 
explain what information was provided; how, when, and where it was 
provided and by whom; and why the information caused you not to file an 
application. If you give us this information, we will make a 
determination on such a claim for benefits if all of the following 
conditions are also met.
    (1) An application for the benefits described in paragraph (b)(1)(i) 
or (b)(2)(i) of this section is filed with us by someone described in 
paragraph (b)(1)(ii) or (b)(2)(ii) of this section, as appropriate. The 
application must be filed after the alleged misinformation was provided. 
This application may be--
    (i) An application on which we have made a previous final 
determination or decision awarding the benefits, but only if the 
claimant continues to be eligible for benefits (or again could be 
eligible for benefits) based on that application;
    (ii) An application on which we have made a previous final 
determination or decision denying the benefits, but only if such 
determination or decision is reopened under Sec. 416.1488; or
    (iii) A new application on which we have not made a final 
determination or decision.
    (2) The establishment of a deemed filing date of an application for 
benefits based on misinformation could result

[[Page 666]]

in the claimant becoming eligible for benefits or for additional 
benefits.
    (3) We have not made a previous final determination or decision to 
which you were a party on a claim for benefits based on alleged 
misinformation involving the same facts and issues. This provision does 
not apply, however, if the final determination or decision may be 
reopened under Sec. 416.1488.
    (g) Effective date. This section applies only to misinformation 
which we provided on or after December 19, 1989. In addition, this 
section is effective only for benefits payable for months after December 
1989.

[59 FR 44926, Aug. 31, 1994]

                        Withdrawal of Application



Sec. 416.355  Withdrawal of an application.

    (a) Request for withdrawal filed before we make a determination. If 
you make a request to withdraw your application before we make a 
determination on your claim, we will approve the request if the 
following requirements are met:
    (1) You or a person who may sign an application for you signs a 
written request to withdraw the application and files it at a place 
described in Sec. 416.325.
    (2) You are alive when the request is filed.
    (b) Request for withdrawal filed after a determination is made. If 
you make a request to withdraw your application after we make a 
determination on your claim, we will approve the request if the 
following requirements are met:
    (1) The conditions in paragraph (a) of this section are met.
    (2) Every other person who may lose benefits because of the 
withdrawal consents in writing (anyone who could sign an application for 
that person may give the consent).
    (3) All benefits already paid based on the application are repaid or 
we are satisfied that they will be repaid.
    (c) Effect of withdrawal. If we approve your request to withdraw an 
application, we will treat the application as though you never filed it. 
If we disapprove your request for withdrawal, we will treat the 
application as though you never requested the withdrawal.



Sec. 416.360  Cancellation of a request to withdraw.

    You may cancel your request to withdraw your application and your 
application will still be good if the following requirements are met:
    (a) You or a person who may sign an application for you signs a 
written request for cancellation and files it at a place described in 
Sec. 416.325.
    (b) You are alive at the time the request for cancellation is filed.
    (c) For a cancellation request received after we have approved the 
withdrawal, the cancellation request is filed no later than 60 days 
after the date of the notice of approval of the withdrawal request.



                      Subpart D--Amount of Benefits

    Authority:  Secs. 702(a)(5), 1611 (a), (b), (c), and (e), 1612, 
1617, and 1631 of the Social Security Act (42 U.S.C. 902(a)(5), 1382 
(a), (b), (c), and (e), 1382a, 1382f, and 1383).



Sec. 416.401  Scope of subpart.

    This subpart D sets forth basic guidelines for establishing the 
amount of monthly benefits payable to an eligible individual or couple 
(as defined in Sec. 416.120(c)(5)). This subpart does not contain 
provisions with respect to establishing the amount of State 
supplementary payments payable in accordance with an agreement entered 
into between a State and the Administration under the provisions of 
subpart T of this part. Provisions with respect to determination and 
payment of State supplementary payments under such agreements will be 
administered by the Administration in accordance with the terms set 
forth in such agreements.

[39 FR 23053, June 26, 1974]



Sec. 416.405  Cost-of-living adjustments in benefits.

    Whenever benefit amounts under title II of the Act (part 404 of this 
chapter) are increased by any percentage effective with any month as a 
result of a determination made under Section 215(i) of the Act, each of 
the dollar amounts in effect for such month under Secs. 416.410, 
416.412, and 416.413, as specified in such sections or as previously 
increased under this section or under

[[Page 667]]

any provision of the Act, will be increased. We will increase the 
unrounded yearly SSI benefit amount by the same percentage by which the 
title II benefits are being increased based on the Consumer Price Index, 
or, if greater, the percentage they would be increased if the rise in 
the Consumer Price Index were currently the basis for the title II 
increase. (See Secs. 404.270-404.277 for an explanation of how the title 
II cost-of-living adjustment is computed.) If the increased annual SSI 
benefit amount is not a multiple of $12, it will be rounded to the next 
lower multiple of $12.

[51 FR 12606, Apr. 21, 1986; 51 FR 16016, Apr. 30, 1986]



Sec. 416.410  Amount of benefits; eligible individual.

    The benefit under this part for an eligible individual (including 
the eligible individual receiving benefits payable under the 
Sec. 416.212 provisions) who does not have an eligible spouse, who is 
not subject to either benefit suspension under Sec. 416.1325 or benefit 
reduction under Sec. 416.414, and who is not a qualified individual (as 
defined in Sec. 416.221) shall be payable at the rate of $5,640 per year 
($470 per month) effective for the period beginning January 1, 1996. 
This rate is the result of a 2.6 percent cost-of-living adjustment (see 
Sec. 416.405) to the December 1995 rate. For the period January 1, 
through December 31, 1995, the rate payable, as increased by the 2.8 
percent cost-of-living adjustment, was $5,496 per year ($458 per month). 
For the period January 1, through December 31, 1994, the rate payable, 
as increased by the 2.6 percent cost-of-living adjustment, was $5,352 
per year ($446 per month). The monthly rate is reduced by the amount of 
the individual's income which is not excluded pursuant to subpart K of 
this part.

[61 FR 10278, Mar. 13, 1996]



Sec. 416.412  Amount of benefits; eligible couple.

    The benefit under this part for an eligible couple (including 
couples where one or both members of the couple are receiving benefits 
payable under the Sec. 416.212 provisions), neither of whom is subject 
to suspension of benefits based on Sec. 416.1325 or reduction of 
benefits based on Sec. 416.414 nor is a qualified individual (as defined 
in Sec. 416.221) shall be payable at the rate of $8,460 per year ($705 
per month), effective for the period beginning January 1, 1996. This 
rate is the result of a 2.6 percent cost-of-living adjustment (see 
Sec. 416.405) to the December 1995 rate. For the period January 1, 
through December 31, 1995, the rate payable, as increased by the 2.8 
percent cost-of-living adjustment, was $8,224 per year ($687 per month). 
For the period January 1, through December 31, 1994, the rate payable, 
as increased by the 2.6 percent cost-of-living adjustment, was $8,028 
per year ($669 per month). The monthly rate is reduced by the amount of 
the couple's income which is not excluded pursuant to subpart K of this 
part.

[61 FR 10278, Mar. 13, 1996]



Sec. 416.413  Amount of benefits; qualified individual.

    The benefit under this part for a qualified individual (defined in 
Sec. 416.221) is payable at the rate for an eligible individual or 
eligible couple plus an increment for each essential person (defined in 
Sec. 416.222) in the household, reduced by the amount of countable 
income of the eligible individual or eligible couple as explained in 
Sec. 416.420. A qualified individual will receive an increment of $2,820 
per year ($235 per month), effective for the period beginning January 1, 
1996. This rate is the result of the 2.6 percent cost-of-living 
adjustment (see Sec. 416.405) to the December 1995 rate, and is for each 
essential person (as defined in Sec. 416.222) living in the household of 
a qualified individual. (See Sec. 416.532.) For the period January 1, 
through December 31, 1995, the rate payable, as increased by the 2.8 
percent cost-of-living adjustment, was $2,748 per year ($229 per month). 
For the period January 1, through December 31, 1994, the rate payable, 
as increased by the 2.6 percent cost-of-living adjustment, was $2,676 
per year ($223 per month). The total benefit rate, including the 
increment, is reduced by the amount of the individual's or couple's

[[Page 668]]

income that is not excluded pursuant to subpart K of this part.

[61 FR 10278, Mar. 13, 1996]



Sec. 416.414  Amount of benefits; eligible individual or eligible couple in a medical care facility.

    (a) General rule. Except where the Sec. 416.212 provisions provide 
for payment of benefits at the rates specified under Secs. 416.410 and 
416.412, reduced SSI benefits are payable to persons and couples who are 
in medical care facilities where a substantial part (more than 50 
percent) of the cost of their care is paid by a State plan under title 
XIX of the Social Security Act (Medicaid). This reduced SSI benefit rate 
applies to persons who are in medical care facilities where a 
substantial part (more than 50 percent) of the cost would have been paid 
by an approved Medicaid State plan but for the application of section 
1917(c) of the Social Security Act due to a transfer of assets for less 
than fair market value. This reduced SSI benefit rate also applies to 
children under age 18 who are in medical care facilities where a 
substantial part (more than 50 percent) of the cost of their care is 
paid by a health insurance policy issued by a private provider of such 
insurance, or where a substantial part (more than 50 percent) of the 
cost of their care is paid for by a combination of Medicaid payments and 
payments made under a health insurance policy issued by a private 
provider of such insurance. Persons and couples to whom these reduced 
benefits apply are--
    (1) Those who are otherwise eligible and who are in the medical care 
facility throughout a month. (By throughout a month we mean that you are 
in the medical care facility as of the beginning of the month and stay 
the entire month. If you are in a medical care facility you will be 
considered to have continuously been staying there if you are 
transferred from one medical facility to another or if you are 
temporarily absent for a period of not more than 14 consecutive days.); 
and
    (2) Those who reside for part of a month in a public institution and 
for the rest of the month are in a public or private medical care 
facility where Medicaid pays or would have paid (but for the application 
of section 1917(c) of the Act) a substantial part (more than 50 percent) 
of the cost of their care; and
    (3) Children under age 18 who reside for part of a month in a public 
institution and for the rest of the month are in a public or private 
medical care facility where a substantial part (more than 50 percent) of 
the cost of their care is being paid under a health insurance policy 
issued by a private provider or by a combination of Medicaid and 
payments under a health insurance policy issued by a private provider.
    (b) The benefit rates are--(1) Eligible individual. For months after 
June 1988, the benefit rate for an eligible individual with no eligible 
spouse is $30 per month. The benefit payment is figured by subtracting 
the eligible individual's countable income (see subpart K) from the 
benefit rate as explained in Sec. 416.420.
    (2) Eligible couple both of whom are temporarily absent from home in 
medical care facilities as described in Sec. 416.1149(c)(1). For months 
after June 1988, the benefit rate for a couple is $60 a month. The 
benefit payment is figured by subtracting the couple's countable income 
(see subpart K) from the benefit rate as explained in Sec. 416.420.
    (3) Eligible couple with one spouse who is temporarily absent from 
home as described in Sec. 416.1149(c)(1). The couple's benefit rate 
equals:
    (i) For months after June 1988, $30 per month for the spouse in the 
medical care facility; plus
    (ii) The benefit rate for an eligible individual (see Sec. 416.410) 
for the spouse who is not in the medical care facility. The benefit 
payment for each spouse is figured by subtracting each individual's own 
countable income in the appropriate month (see Sec. 416.420) from his or 
her portion of the benefit rate shown in paragraphs (b)(3)(i) and (ii).
    (c) Definition. For purposes of this section a medical care facility 
means a hospital (see section 1861(e) of the Act), a skilled nursing 
facility (see section 1861(j) of the Act) or an intermediate

[[Page 669]]

care facility (see section 1905(c) of the Act).

[47 FR 3106, Jan. 22, 1982, as amended at 50 FR 48571, Nov. 26, 1985; 50 
FR 51514, Dec. 18, 1985; 54 FR 19164, May 4, 1989; 58 FR 64894, Dec. 10, 
1993; 60 FR 16374, Mar. 30, 1995; 61 FR 10278, Mar. 13, 1996; 62 FR 
1056, Jan. 8, 1997]



Sec. 416.415  Amount of benefits; eligible individual is disabled child under age 18.

    (a) If you are a disabled child under age 18 and meet the conditions 
in Sec. 416.1165(i) for waiver of deeming, your parents' income will not 
be deemed to you and your benefit rate will be $30 a month.
    (b) If you are a disabled child under age 18 and do not meet the 
conditions in Sec. 416.1165(i) only because your parents' income is not 
high enough to make you ineligible for SSI but deeming of your parents' 
income would result in an SSI benefit less than the amount payable if 
you received benefits as a child under Sec. 416.1165(i), your benefit 
will be the amount payable if you received benefits as a child under 
Sec. 416.1165(i).

[60 FR 361, Jan. 4, 1995]



Sec. 416.420  Determination of benefits; general.

    Benefits shall be determined for each month. The amount of the 
monthly payment will be computed by reducing the benefit rate (see 
Secs. 416.410, 416.412, 416.413, and 416.414) by the amount of countable 
income as figured under the rules in subpart K of this part. The 
appropriate month's countable income to be used to determine how much 
your benefit payment will be for the current month (the month for which 
a benefit is payable) will be determined as follows:
    (a) General rule. We use the amount of your countable income in the 
second month prior to the current month to determine how much your 
benefit amount will be for the current month. However, if you have been 
receiving an SSI benefit and receiving a social security insurance 
benefit and the latter is increased on the basis of the cost-of-living 
adjustment or because your benefit is recomputed, we will compute the 
amount of your SSI benefit for January, the month of an SSI benefit 
increase by including in your income the amount by which your social 
security benefit in January exceeds the amount of your social security 
benefit in November. Similarly, we will compute the amount of your SSI 
benefit for February by including in your income the amount by which 
your social security benefit in February exceeds the amount of your 
social security benefit in December.
    Example 1.  Mrs. X's benefit amount is being determined for 
September (the current month). Mrs. X's countable income in July is used 
to determine the benefit amount for September.
    Example 2. Mr. Y's SSI benefit amount is being determined for 
January (the current month). Mr. Y has social security income of $100 in 
November, $100 in December, and $105 in January. We find the amount by 
which his social security income in January exceeds his social security 
income in November ($5) and add that to his income in November to 
determine the SSI benefit amount for January.
    (b) Exceptions to the general rule--(1) First month of eligibility 
or eligibility after a month of ineligibility. We use your countable 
income in the current month to determine your benefit amount for the 
first month you are eligible for SSI benefits or for the first month you 
become eligible for SSI benefits after at least a month of 
ineligibility. Your payment for such month will be prorated according to 
the number of days in the month that you are eligible beginning with the 
date of your application or the date on which you attain (or reattain) 
eligibility, whichever is later.

    Example: Mrs. Y applies for SSI benefits in September. We use Mrs. 
Y's countable income in September to determine the amount of her benefit 
for September. The same would be true if Mrs. Y had been ineligible for 
SSI benefits in August and again became eligible for such benefits in 
September.

    (2) Second month of initial eligibility or eligibility after a month 
of ineligibility. We use your countable income in the first month prior 
to the current month to determine how much your benefit amount will be 
for the current month when the current month is the second month of 
initial eligibility or the second month following at least a month of 
ineligibility. However, if you have been receiving both an SSI benefit 
and a social security insurance benefit and

[[Page 670]]

the latter is increased on the basis of the cost-of-living adjustment or 
because your benefit is recomputed, we will compute the amount of your 
SSI benefit for January, the month of an SSI benefit increase, by 
including in your income the amount by which your social security 
benefit in January exceeds the amount of your social security benefit in 
December.
    Example:  Mrs. Y was initially eligible for SSI benefits in 
September. Her benefit amount for October will be based on her countable 
income in September (first prior month).
    (3) Third month of initial eligibility or eligibility after a month 
of ineligibility. We use your countable income according to the rule set 
out in paragraph (a) of this section to determine how much your benefit 
amount will be for the third month of initial eligibility or the third 
month after at least a month of ineligibility.
    Example:  Mrs. Y was initially eligible for SSI benefits in 
September. Her benefit amount for November will be based on her 
countable income in September (second prior month).
    (4) Income derived from certain assistance payments. We use your 
income in the current month from the programs listed below to determine 
your benefit amount for that same month. The assistance programs are as 
follows:
    (i) Aid to Families with Dependent Children under title IV-A of the 
Social Security Act (the Act);
    (ii) Foster Care under title IV-E of the Act;
    (iii) Refugee Cash Assistance pursuant to section 412(e) of the 
Immigration and Nationality Act;
    (iv) Cuban and Haitian Entrant Assistance pursuant to section 501(a) 
of Pub. L. 96-422; and
    (v) Bureau of Indian Affairs general assistance and child welfare 
assistance pursuant to 42 Stat. 208 as amended.
    (c) Payment of benefits. See subpart E of this part for the rules on 
payments and the minimum monthly benefit (as explained in Sec. 416.503).

[50 FR 48571, Nov. 26, 1985; 50 FR 51514, Dec. 18, 1985, as amended at 
54 FR 31657, Aug. 1, 1989]



Sec. 416.421  Determination of benefits; computation of prorated benefits.

    (a) In the month you are first eligible for benefits, your benefit 
will be prorated according to the number of days in the month that you 
are eligible beginning with the date of application or the date on which 
you meet all eligibility requirements, whichever is later. In the month 
that you reacquire eligibility after a month or more of ineligibility 
(see Sec. 416.1321(b)), your benefit will be prorated according to the 
number of days in the month that you are eligible beginning with the 
date on which you meet all eligibility requirements.
    (b) In determining the amount of your benefit for a month in which 
benefits are to be prorated, we first compute the amount of the benefit 
that you would receive for the month as if proration did not apply. We 
then determine the date on which you meet all factors of eligibility. 
(The income limits must be met based on the entire month and the 
resource limit must be as of the first day of the month.) We then count 
the number of days in the month beginning with the day on which you 
first meet all factors of eligibility through the end of the month. We 
then multiply the amount of your unprorated benefit for the month by the 
number of days for which you are eligible for benefits and divide that 
figure by the number of days in the month for which your benefit is 
being determined. The result is the amount of the benefit that you are 
due for the month in which benefits are to be prorated.
    Example  Mr. X applies for SSI on April 16, 1984. He has no income. 
He first meets all factors of eligibility on April 16, 1984. His Federal 
benefit rate is $314 per month. Mr. X's unprorated benefit for April is 
$314. The number of days from when he first meets all factors of 
eligibility (including that day) through the end of the month is 15. The 
unprorated benefit ($314) multiplied by the number of days for which he 
is eligible for benefits (15) is $4710. That amount divided by the 
number of days in April (30) is $157. This is the amount that Mr. X is 
due for the month of April.

[51 FR 13493, Apr. 14, 1986]

[[Page 671]]



Sec. 416.426  Change in status involving an individual; ineligibility occurs.

    Whenever benefits are suspended or terminated for an individual 
because of ineligibility, no benefit is payable for that month.

[50 FR 48571, Nov. 26, 1985]



Sec. 416.428  Eligible individual without an eligible spouse has an essential person in his home.

    When an eligible individual without an eligible spouse has an 
essential person (as defined in Sec. 416.222) in his home, the amount by 
which his rate of payment is increased is determined in accordance with 
Secs. 416.531 and 416.532. The essential person's income is deemed to be 
that of the eligible individual, and the provisions of Secs. 416.401 
through 416.426 will apply in determining the benefit of such eligible 
individual.

[39 FR 23053, June 26, 1974, as amended at 51 FR 10616, Mar. 28, 1986]



Sec. 416.430  Eligible individual with eligible spouse; essential person(s) present.

    (a) When an eligible individual with an eligible spouse has an 
essential person (Sec. 416.222) living in his or her home, or when both 
such persons each has an essential person, the increase in the rate of 
payment is determined in accordance with Secs. 416.413 and 416.532. The 
income of the essential person(s) is included in the income of the 
couple and the payment due will be equally divided between each member 
of the eligible couple.
    (b) When one member of an eligible couple is temporarily absent in 
accordance with Sec. 416.1149(c)(1) and Sec. 416.222(c) and either one 
or both individuals has an essential person, add the essential person 
increment to the benefit rate for the member of the couple who is 
actually residing with the essential person and include the income of 
the essential person in that member's income. See Sec. 416.414(b)(3).

[60 FR 16375, Mar. 30, 1995]



Sec. 416.432  Change in status involving a couple; eligibility continues.

    When there is a change in status which involves the formation or 
dissolution of an eligible couple (for example, marriage, divorce), a 
redetermination of the benefit amount shall be made for the months 
subsequent to the month of such formation or dissolution of the couple 
in accordance with the following rules:
    (a) When there is a dissolution of an eligible couple and each 
member of the couple becomes an eligible individual, the benefit amount 
for each person shall be determined individually for each month 
beginning with the first month after the month in which the dissolution 
occurs. This shall be done by determining the applicable benefit rate 
for an eligible individual with no eligible spouse according to 
Secs. 416.410 or 416.413 and 416.414 and applying Sec. 416.420(a). See 
Sec. 416.1147a for the applicable income rules when in-kind support and 
maintenance is involved.
    (b) When two eligible individuals become an eligible couple, the 
benefit amount will be determined for the couple beginning with the 
first month following the month of the change. This shall be done by 
determining which benefit rate to use for an eligible couple according 
to Secs. 416.412 or 416.413 and 416.414 and applying the requirements in 
Sec. 416.420(a).

[60 FR 16375, Mar. 30, 1995]



Sec. 416.435  Change in status involving a couple; ineligibility occurs.

    Whenever benefits are suspended or terminated for both members of a 
couple because of ineligibility, no benefits are payable for that month. 
However, when benefits are suspended or terminated for one member of a 
couple because of ineligibility for a month, the member who remains 
eligible assumes the eligibility status of an eligible individual 
without an eligible spouse for such month and the benefit rate and 
payment amount will be determined as an eligible individual for the 
month.

[50 FR 48572, Nov. 26, 1985]



     Subpart E--Payment of Benefits, Overpayments, and Underpayments

    Authority:  Secs. 702(a)(5), 1601, 1602, 1611 (c) and (e), and 1631 
(a)-(d) and (g) of the Social Security Act (42 U.S.C. 902(a)(5), 1381, 
1381a, 1382 (c) and (e), and 1383 (a)-(d) and (g)).

[[Page 672]]



Sec. 416.501  Payment of benefits: General.

    Payment of SSI benefits will be made for the month of initial 
eligibility and each subsequent month provided all requirements for 
eligibility (see Sec. 416.202) and payment (see Sec. 416.420) are met. 
In the month the individual first meets all eligibility requirements and 
the month in which an individual re-establishes eligibility after at 
least a month of ineligibility, benefits are paid for such a month 
beginning with the date in the month on which the individual meets all 
eligibility requirements. In some months, while the factors of 
eligibility based on the current month may be established, it is 
possible to receive no payment for that month if the factors of 
eligibility for payment are not met. Payment of benefits may not be made 
for any period that precedes the date on which an application is filed 
or, if later, the date all conditions for eligibility and payment are 
met. It is possible for a couple to become eligible in the same month 
but as of different dates and receive different payment amounts for that 
month if they file their applications on different dates or if they meet 
the necessary requirements (for example, age) on different dates.

[50 FR 48572, Nov. 26, 1985]



Sec. 416.502  Manner of payment.

    For the month an individual first meets all eligibility requirements 
or reestablishes eligibility after a month of ineligibility, an SSI 
payment will be made on or after the day of the month on which the 
individual becomes eligible or reeligible to receive benefits. In all 
other months, a payment will be made on the first day of each month and 
represents payment for that month. If the first day of the month falls 
on a Saturday, Sunday, or legal holiday, payments will be made on the 
first day preceding such day which is not a Saturday, Sunday, or legal 
holiday. Unless otherwise indicated, the monthly amount for an eligible 
couple will be divided equally and paid separately to each individual. 
Section 416.520 explains emergency advance payments.

[55 FR 4422, Feb. 8, 1990]



Sec. 416.503  Minimum monthly benefit amount.

    If you receive an SSI benefit that does not include a State 
supplement the minimum monthly SSI benefit amount payable is $1. When an 
SSI benefit amount of less than $1 is payable, the benefit amount will 
be increased to $1. If you receive an SSI benefit that does include a 
State supplement and the SSI benefit amount is less than $1 but when 
added to the State supplement exceeds $1, the SSI benefit amount will 
not be increased to $1. Rather, we pay the actual amount of the SSI 
benefit plus the State supplement.

[50 FR 48572, Nov. 26, 1985]



Sec. 416.520  Emergency advance payments.

    (a) General. Before we make a determination on an application, we 
may pay a one-time emergency advance payment to an individual who is 
presumptively eligible for SSI benefits and who has a financial 
emergency. The amount of this payment cannot exceed the Federal benefit 
rate (see Secs. 416.410 through 416.414) plus the State supplementary 
payment, if any (see Sec. 416.2020), which apply for the month in which 
payment is made. Emergency advance payment is defined in paragraph 
(b)(1) of this section. The actual payment amount is computed as 
explained in paragraph (c) of this section. An emergency advance payment 
is an advance of benefits expected to be due that is recoverable as 
explained in paragraphs (d) and (e) of this section.
    (b) Definition of terms. For purposes of this subpart--
    (1) Emergency advance payment means a direct, expedited payment by a 
Social Security Administration district or branch office to an 
individual or spouse who is initially applying (see paragraph (b)(3) of 
this section) and has not been determined eligible, who is presumptively 
eligible (see paragraph (b)(4) of this section), and who has a financial 
emergency (see paragraph (b)(2) of this section).
    (2) Financial emergency is the financial status of an individual who 
has insufficient income or resources to meet

[[Page 673]]

an immediate threat to health or safety, such as the lack of food, 
clothing, shelter, or medical care.
    (3) Initially applying means the filing of an application (see 
Sec. 416.310) which requires an initial determination of eligibility, 
such as the first application for SSI benefits or an application filed 
subsequent to a prior denial or termination of a prior period of 
eligibility for payment. An individual or spouse who previously received 
an emergency advance payment in a prior period of eligibility which 
terminated may again receive such a payment if he or she reapplies for 
SSI and meets the other conditions for an emergency advance payment 
under this section.
    (4) Presumptively eligible is the status of an individual or spouse 
who presents strong evidence of the likelihood of meeting the income and 
resources tests of eligibility (see subparts K and L of this part), 
categorical eligibility (age, disability, or blindness), and technical 
eligibility (United States residency and citizenship or alien status--
see subpart P).
    (c) Computation of payment amount. To compute the emergency advance 
payment amount, the maximum amount described in paragraph (a) of this 
section is compared to both the expected benefit payable for the month 
the payment is made (see paragraph (c)(1) of this section) and the 
amount the applicant requested to meet the emergency. The actual payment 
amount is no more than the least of these three amounts.
    (1) In computing the emergency advance payment amount, we apply the 
monthly income counting and proration rules apppropriate for the month 
in which the advance is paid, as explained in Secs. 416.420 and 416.421.
    (2) For a couple, we separately compute each member's emergency 
advance payment amount.
    (d) Recovery of emergency advance payment where eligibility is 
established. The amount of an emergency advance payment is deducted from 
payment(s) certified to the United States Treasury when the individual 
or spouse is determined to be eligible. (See paragraph (e) of this 
section if the individual or spouse is determined to be ineligible.)
    (e) Disposition of emergency advance payments where eligibility is 
not established. If a presumptively eligible individual (or spouse) or 
couple is determined to be ineligible, the emergency advance payment 
constitutes a recoverable overpayment. (See the exception in 
Sec. 416.537(b)(1) when payment is made on the basis of presumptive 
disability or presumptive blindness.)

[55 FR 4422, Feb. 8, 1990; 55 FR 7411, Mar. 1, 1990]



Sec. 416.525  Reimbursement to States for interim assistance payments.

    Notwithstanding Sec. 416.542, the Social Security Administration 
may, in accordance with the provisions of subpart S of this part, 
withhold supplemental security income benefits due with respect to an 
individual and may pay to a State (or political subdivision thereof, if 
agreed to by the Social Security Administration and the State) from the 
benefits withheld, an amount sufficient to reimburse the State (or 
political subdivision) for interim assistance furnished on behalf of the 
individual.

[41 FR 20872, May 21, 1976]



Sec. 416.532  Method of payment when the essential person resides with more than one eligible person.

    (a) When an essential person lives with an eligible individual and 
an eligible spouse, the State may report that the person is essential to 
one or both members of the couple. In either event, the income and 
resources of the essential person will be considered to be available to 
the family unit. The payment increment attributable to the essential 
person will be added to the rate of payment for the couple, the 
countable income subtracted, and the resulting total benefit divided 
equally between the eligible individual and the eligible spouse.
    (b) Where the essential person lives with two eligible individuals 
(as opposed to an eligible individual and eligible spouse), one of whom 
has been designated the qualified individual, the income and resources 
of the essential person will be considered to be available only to the 
qualified individual (as defined in Sec. 416.221) and any increase in 
payment will be made to such qualified individual.

[[Page 674]]

    (c) In those instances where the State has designated the essential 
person as essential to two or more eligible individuals so that both are 
qualified individuals, the payment increment attributable to the 
essential person must be shared equally, and the income and resources of 
the essential person divided and counted equally against each qualified 
individual.
    (d) When an essential person lives with an eligible individual and 
an eligible spouse (or two or more eligible individuals) only one of 
whom is the qualified individual, essential person status is not 
automatically retained upon the death of the qualified individual or 
upon the separation from the qualified individual. A review of the State 
records established on or before December 31, 1973, will provide the 
basis for a determination as to whether the remaining eligible 
individual or eligible spouse meets the definition of qualified 
individual. Payment in consideration of the essential person will be 
dependent on whether the essential person continues to live with a 
qualified individual. If the essential person does reside with a 
qualified individual, status as an essential person is retained.

[39 FR 33796, Sept. 20, 1974, as amended at 50 FR 48572, Nov. 26, 1985; 
51 FR 10616, Mar. 28, 1986; 60 FR 16375, Mar. 30, 1995]



Sec. 416.533  Transfer or assignment of benefits.

    Except as provided in Sec. 416.525 and subpart S of this part, the 
Social Security Administration will not certify payment of supplemental 
security income benefits to a transferee or assignee of a person 
eligible for such benefits under the Act or of a person qualified for 
payment under Sec. 416.542. The Social Security Administration shall not 
certify payment of supplemental security income benefits to any person 
claiming such payment by virtue of an execution, levy, attachment, 
garnishment, or other legal process or by virtue of any bankruptcy or 
insolvency proceeding against or affecting the person eligible for 
benefits under the Act.

[41 FR 20873, May 21, 1976, as amended at 58 FR 52912, Oct. 13, 1993]



Sec. 416.535  Underpayments and overpayments.

    (a) General. When an individual receives SSI benefits of less than 
the correct amount, adjustment is effected as described in Secs. 416.542 
and 416.543, and the additional rules in Sec. 416.545 may apply. When an 
individual receives more than the correct amount of SSI benefits, 
adjustment is effected as described in Sec. 416.570. Refund of 
overpayments is discussed in Sec. 416.560 and waiver of recovery of 
overpayments is discussed in Secs. 416.550 through 416.555.
    (b) Additional rules for individuals whose drug addiction or 
alcoholism is a contributing factor material to the determination of 
disability. When an individual whose drug addiction or alcoholism is a 
contributing factor material to the determination of disability, as 
described in Sec. 416.935, receives less than the correct amount of SSI 
benefits, adjustment is effected as described in Secs. 416.542 and 
416.543 and the additional rule described in Sec. 416.544 applies.
    (c) Additional rules for eligible individuals under age 18 who have 
a representative payee. When an eligible individual under age 18 has a 
representative payee and receives less than the correct amount of SSI 
benefits, the additional rules in Sec. 416.546 may apply.
    (d) Additional rules for eligible aliens and for their sponsors. 
When an individual who is an alien is overpaid SSI benefits during the 
3-year period in which deeming from a sponsor applies (see 
Sec. 416.1160(a)(3)), the sponsor and the alien may be jointly and 
individually liable for repayment of the overpayment. The sponsor is 
liable for the overpayment if he or she failed to report correct 
information that affected the alien's eligibility or payment amount. 
This means information about the income and resources of the sponsor 
and, if they live together, of the sponsor's spouse. However, the 
sponsor is not liable for repayment if the sponsor was without fault or 
had good cause for failing to report correctly. A special rule that 
applies to adjustment of other benefits due the alien and the sponsor to 
recover an overpayment is described in Sec. 416.570(b).
    (e) Sponsor without fault or good cause exists for failure to 
report. Without fault or good cause will be found to exist if

[[Page 675]]

the failure to report was not willful. To establish willful failure, the 
evidence must show that the sponsor knowingly failed to supply pertinent 
information regarding his or her income and resources.

[52 FR 8881, Mar. 20, 1987, as amended at 60 FR 8149, Feb. 10, 1995; 61 
FR 67205, Dec. 20, 1996]



Sec. 416.536  Underpayments--defined.

    An underpayment can occur only with respect to a period for which a 
recipient filed an application, if required, for benefits and met all 
conditions of eligibility for benefits. An underpayment, including any 
amounts of State supplementary payments which are due and administered 
by the Social Security Administration, is:
    (a) Nonpayment, where payment was due but was not made; or
    (b) Payment of less than the amount due. For purposes of this 
section, payment has been made when certified by the Social Security 
Administration to the Department of the Treasury, except that payment 
has not been made where payment has not been received by the designated 
payee, or where payment was returned.

[58 FR 52912, Oct. 13, 1993]



Sec. 416.537  Overpayments--defined.

    (a) Overpayments. As used in this subpart, the term overpayment 
means payment of more than the amount due for any period, including any 
amounts of State supplementary payments which are due and administered 
by the Social Security Administration. For purposes of this section, 
payment has been made when certified by the Social Security 
Administration to the Department of the Treasury, except that payment 
has not been made where payment has not been received by the designated 
payee, or where payment was returned. When a payment of more than the 
amount due is made by direct deposit to a financial institution to or on 
behalf of an individual who has died, and the financial institution 
credits the payment to a joint account of the deceased individual and 
another person who is the surviving spouse of the deceased individual 
and was eligible for a payment under title XVI of the Act (including any 
State supplementation payment paid by the Secretary) as an eligible 
spouse (or as either member of an eligible couple) for the month in 
which the deceased individual died, the amount of the payment in excess 
of the correct amount will be an overpayment to the surviving spouse.
    (b) Actions which are not overpayments--(1) Presumptive disability 
and presumptive blindness. Any payment made for any month, including an 
advance payment of benefits under Sec. 416.520, is not an overpayment to 
the extent it meets the criteria for payment under Sec. 416.931. 
Payments made on the basis of presumptive disability or presumptive 
blindness will not be considered overpayments where ineligibility is 
determined because the individual or eligible spouse is not disabled or 
blind. However, where it is determined that all or a portion of the 
presumptive payments made are incorrect for reasons other than 
disability or blindness, these incorrect payments are considered 
overpayments (as defined in paragraph (a) of this section). Overpayments 
may occur, for example, when the person who received payments on the 
basis of presumptive disability or presumptive blindness is determined 
to be ineligible for all or any part of the payments because of excess 
resources or is determined to have received excess payment for those 
months based on an incorrect estimate of income.
    (2) Penalty. The imposition of a penalty pursuant to Sec. 416.724 is 
not an adjustment of an overpayment and is imposed only against any 
amount due the penalized recipient, or, after death, any amount due the 
deceased which otherwise would be paid to a survivor as defined in 
Sec. 416.542.

[40 FR 47763, Oct. 10, 1975, as amended at 43 FR 17354, Apr. 24, 1978; 
50 FR 48572, Nov. 26, 1985; 55 FR 7313, Mar. 1, 1990; 58 FR 52912, Oct. 
13, 1993]



Sec. 416.538  Amount of underpayment or overpayment.

    (a) General. The amount of an underpayment or overpayment is the 
difference between the amount paid to a recipient and the amount of 
payment actually due such recipient for a given period. An underpayment 
or overpayment period begins with the first

[[Page 676]]

month for which there is a difference between the amount paid and the 
amount actually due for that month. The period ends with the month the 
initial determination of overpayment or underpayment is made. With 
respect to the period established, there can be no underpayment to a 
recipient or his or her eligible spouse if more than the correct amount 
payable under title XVI of the Act has been paid, whether or not 
adjustment or recovery of any overpayment for that period to the 
recipient or his or her eligible spouse has been waived under the 
provisions of Secs. 416.550 through 416.556. A subsequent initial 
determination of overpayment will require no change with respect to a 
prior determination of overpayment or to the period relating to such 
determination to the extent that the basis of the prior overpayment 
remains the same.
    (b) Limited delay in payment of underpaid amount to recipient or 
eligible surviving spouse. Where an apparent overpayment has been 
detected but determination of the overpayment has not been made (see 
Sec. 416.558(a)), a determination of an underpayment and payment of an 
underpaid amount which is otherwise due cannot be delayed to a recipient 
or eligible surviving spouse unless a determination with respect to the 
apparent overpayment can be made before the close of the month following 
the month in which the underpaid amount was discovered.
    (c) Delay in payment of underpaid amount to ineligible individual or 
survivor. A determination of an underpayment and payment of an underpaid 
amount which is otherwise due an individual who is no longer eligible 
for SSI or is payable to a survivor pursuant to Sec. 416.542(b) will be 
delayed for the resolution of all overpayments, incorrect payments, 
adjustments, and penalties.
    (d) Limited delay in payment of underpaid amount to eligible 
individual under age 18 who has a representative payee. When the 
representative payee of an eligible individual under age 18 is required 
to establish a dedicated account pursuant to Secs. 416.546 and 
416.640(e), payment of past-due benefits which are otherwise due will be 
delayed until the representative payee has established the dedicated 
account as described in Sec. 416.640(e). Once the account is 
established, SSA will deposit the past-due benefits payable directly to 
the account.
    (e) Reduction of underpaid amount. Any underpayment amount otherwise 
payable to a survivor on account of a deceased recipient is reduced by 
the amount of any outstanding penalty imposed against the benefits 
payable to such deceased recipient or survivor under section 1631(e) of 
the Act (see Sec. 416.537(b)(2)).

[58 FR 52912, Oct. 13, 1993, as amended at 61 FR 67205, Dec. 20, 1996]



Sec. 416.542  Underpayments--to whom underpaid amount is payable.

    (a) Underpaid recipient alive--underpayment payable. (1) If an 
underpaid recipient is alive, the amount of any underpayment due him or 
her will be paid to him or her in a separate payment or by increasing 
the amount of his or her monthly payment. If the underpaid amount meets 
the formula in Sec. 416.545 and one of the exceptions does not apply, 
the amount of any past-due benefits will be paid in installments.
    (2) If an underpaid recipient whose drug addiction or alcoholism is 
a contributing factor material to the determination of disability (as 
described in Sec. 416.935) is alive, the amount of any underpayment due 
the recipient will be paid through his or her representative payee in 
installment payments. No underpayment may be paid directly to the 
recipient. If the recipient dies before we have paid all benefits due 
through his or her representative payee, we will follow the rules which 
apply to underpayments for the payment of any remaining amounts due to 
any eligible survivor of a deceased recipient as described in paragraph 
(b) of this section.
    (3) If an underpaid individual under age 18 is alive and has a 
representative payee and is due past-due benefits which meet the formula 
in Sec. 416.546, SSA will pay the past-due benefits into the dedicated 
account described in Sec. 416.640(e). If the underpaid individual dies 
before the benefits have been deposited into the account, we will follow 
the rules which apply to underpayments for the payment of any unpaid 
amount due to any eligible survivor of

[[Page 677]]

a deceased individual as described in paragraph (b) of this section.
    (b) Underpaid recipient deceased--underpaid amount payable to 
survivor. (1) If a recipient dies before we have paid all benefits due 
or before the recipient endorses the check for the correct payment, we 
may pay the amount due to the deceased recipient's surviving eligible 
spouse or to his or her surviving spouse who was living with the 
underpaid recipient within the meaning of section 202(i) of the Act (see 
Sec. 404.347) in the month he or she died or within 6 months immediately 
preceding the month of death.
    (2) If the deceased underpaid recipient was a disabled or blind 
child when the underpayment occurred, the underpaid amount may be paid 
to the natural or adoptive parent(s) of the underpaid recipient who 
lived with the underpaid recipient in the month he or she died or within 
the 6 months preceding death. We consider the underpaid recipient to 
have been living with the natural or adoptive parent(s) in the period if 
the underpaid recipient satisfies the ``living with'' criteria we use 
when applying Sec. 416.1165 or would have satisfied the criteria had his 
or her death not precluded the application of such criteria throughout a 
month.
    (3) If the deceased individual was living with his or her spouse 
within the meaning of section 202(i) of the Act in the month of death or 
within 6 months immediately preceding the month of death, and was also 
living with his or her natural or adoptive parent(s) in the month of 
death or within 6 months preceding the month of death, we will pay the 
parent(s) any SSI underpayment due the deceased individual for months he 
or she was a blind or disabled child and we will pay the spouse any SSI 
underpayment due the deceased individual for months he or she no longer 
met the definition of ``child'' as set forth at Sec. 416.1856. If no 
parent(s) can be paid in such cases due to death or other reason, then 
we will pay the SSI underpayment due the deceased individual for months 
he or she was a blind or disabled child to the spouse.
    (4) No benefits may be paid to the estate of any underpaid 
recipient, the estate of the surviving spouse, the estate of a parent, 
or to any survivor other than those listed in paragraph (b)(1) through 
(3) of this section. Payment of an underpaid amount to an ineligible 
spouse or surviving parent(s) may only be made for benefits payable for 
months after May 1986. Payment to surviving parent(s) may be made only 
for months of eligibility during which the deceased underpaid recipient 
was a child. We will not pay benefits to a survivor other than the 
eligible spouse who requests payment of an underpaid amount more than 24 
months after the month of the individual's death.
    (c) Underpaid recipient's death caused by an intentional act. No 
benefits due the deceased individual may be paid to a survivor found 
guilty by a court of competent jurisdiction of intentionally causing the 
underpaid recipient's death.

[40 FR 47763, Oct. 10, 1975, as amended at 58 FR 52913, Oct. 13, 1993; 
60 FR 8149, Feb. 10, 1995; 61 FR 67206, Dec. 20, 1996]



Sec. 416.543  Underpayments--applied to reduce overpayments.

    We apply any underpayment due an individual to reduce any 
overpayment to that individual that we determine to exist (see 
Sec. 416.558) for a different period, unless we have waived recovery of 
the overpayment under the provisions of Secs. 416.550 through 416.556. 
Similarly, when an underpaid recipient dies, we first apply any amounts 
due the deceased recipient that would be payable to a survivor under 
Sec. 416.542(b) against any overpayment to the survivor unless we have 
waived recovery of such overpayment under the provisions of 
Secs. 416.550 through 416.556.
    Example:  A disabled child, eligible for payments under title XVI, 
and his parent, also an eligible individual receiving payments under 
title XVI, were living together. The disabled child dies at a time when 
he was underpaid $100. The deceased child's underpaid benefit is payable 
to the surviving parent. However, since the parent must repay an SSI 
overpayment of $225 on his own record, the $100 underpayment will be 
applied to reduce the parent's own overpayment to $125.

[58 FR 52913, Oct. 13, 1993]



Sec. 416.544  Paying benefits in installments: Drug addiction or alcoholism.

    (a) General. For disabled recipients who receive benefit payments 
through

[[Page 678]]

a representative payee because drug addiction or alcoholism is a 
contributing factor material to the determination of disability, certain 
amounts due the recipient for a past period will be paid in 
installments. The amounts subject to payment in installments include:
    (1) Benefits due but unpaid which accrued prior to the month payment 
was effectuated;
    (2) Benefits due but unpaid which accrued during a period of 
suspension for which the recipient was subsequently determined to have 
been eligible; and
    (3) Any adjustment to benefits which results in an accrual of unpaid 
benefits.
    (b) Installment formula. Except as provided in paragraph (c) of this 
section, the amount of the installment payment in any month is limited 
so that the sum of (1) the amount due for a past period (and payable 
under paragraph (a) of this section) paid in such month and (2) the 
amount of any current benefit due cannot exceed twice the Federal 
Benefit Rate plus any federally-administered State supplementation 
payable to an eligible individual for the preceding month.
    (c) Exception to installment limitation. An exception to the 
installment payment limitation in paragraph (b) of this section can be 
granted for the first month in which a recipient accrues benefit amounts 
subject to payment in installments if the recipient has unpaid housing 
expenses which result in a high risk of homelessness for the recipient. 
In that case, the benefit payment may be increased by the amount of the 
unpaid housing expenses so long as that increase does not exceed the 
amount of benefits which accrued during the most recent period of 
nonpayment. We consider a person to be at risk of homelessness if 
continued nonpayment of the outstanding housing expenses is likely to 
result in the person losing his or her place to live or if past 
nonpayment of housing expenses has resulted in the person having no 
appropriate personal place to live. In determining whether this 
exception applies, we will ask for evidence of outstanding housing 
expenses that shows that the person is likely to lose or has already 
lost his or her place to live. For purposes of this section, 
homelessness is the state of not being under the control of any public 
institution and having no appropriate personal place to live. Housing 
expenses include charges for all items required to maintain shelter (for 
example, mortgage payments, rent, heating fuel, and electricity).
    (d) Payment through a representative payee. If the recipient does 
not have a representative payee, payment of amounts subject to 
installments cannot be made until a representative payee is selected.
    (e) Underpaid recipient no longer eligible. In the case of a 
recipient who is no longer currently eligible for monthly payments, but 
to whom amounts defined in paragraph (a) of this section are still 
owing, we will continue to make installment payments of such benefits 
through a representative payee.
    (f) Recipient currently not receiving SSI benefits because of 
suspension for noncompliance with treatment. If a recipient is currently 
not receiving SSI benefits because his or her benefits have been 
suspended for noncompliance with treatment (as defined in Sec. 416.936), 
the payment of amounts under paragraph (a) of this section will stop 
until the recipient has demonstrated compliance with treatment as 
described in Sec. 416.1326 and will again commence with the first month 
the recipient begins to receive benefits.
    (g) Underpaid recipient deceased. Upon the death of a recipient, any 
remaining unpaid amounts as defined in paragraph (a) of this section 
will be treated as underpayments in accordance with Sec. 416.542(b).

[60 FR 8150, Feb. 10, 1995]



Sec. 416.545   Paying large past-due benefits in installments.

    (a) General. Except as described in paragraph (c) of this section, 
when an individual is eligible for past-due benefits in an amount which 
meets the formula in paragraph (b) of this section, payment of these 
benefits must be made in installments. The amounts subject to payment in 
installments include:
    (1) Benefits due but unpaid which accrued prior to the month payment 
was effectuated;

[[Page 679]]

    (2) Benefits due but unpaid which accrued during a period of 
suspension for which the recipient was subsequently determined to have 
been eligible; and
    (3) Any adjustment to benefits which results in an accrual of unpaid 
benefits.
    (b) Installment Formula. Installment payments must be made if the 
amount of the past-due benefits including any federally administered 
State supplementation, after applying Sec. 416.525, equals or exceeds 12 
times the Federal Benefit Rate plus any federally administered State 
supplementation payable in a month to an eligible individual (or 
eligible individual and eligible spouse). These installment payments 
will be paid in not more than 3 installments and made at 6-month 
intervals. Except as described in paragraph (d) of this section, the 
amount of each of the first and second installment payments may not 
exceed the threshold amount of 12 times the maximum monthly benefit 
payable as described in this paragraph.
    (c) Exception--When installments payments are not required. 
Installment payments are not required and the rules in this section do 
not apply if, when the determination of an underpayment is made, the 
individual is (1) afflicted with a medically determinable impairment 
which is expected to result in death within 12 months, or (2) ineligible 
for benefits and we determine that he or she is likely to remain 
ineligible for the next 12 months.
    (d) Exception--Increased first and second installment payments. (1) 
The amount of the first and second installment payments may be increased 
by the total amount of the following debts and expenses:
    (i) Outstanding debt for food, clothing, shelter, or medically 
necessary services, supplies or equipment, or medicine; or
    (ii) Current or anticipated expenses in the near future for 
medically necessary services, supplies or equipment, or medicine, or for 
the purchase of a home.
    (2) The increase described in paragraph (d)(1) of this section only 
applies to debts or expenses that are not subject to reimbursement by a 
public assistance program, the Secretary of Health and Human Services 
under title XVIII of the Act, a State plan approved under title XIX of 
the Act, or any private entity that is legally liable for payment in 
accordance with an insurance policy, pre-paid plan, or other 
arrangement.

[61 FR 67206, Dec. 20, 1996]



Sec. 416.546  Payment into dedicated accounts of past-due benefits for eligible individuals under age 18 who have a representative payee.

    For purposes of this section, amounts subject to payment into 
dedicated accounts (see Sec. 416.640(e)) include the amounts described 
in Sec. 416.545(a) (1), (2), and (3).
    (a) For an eligible individual under age 18 who has a representative 
payee and who is determined to be eligible for past-due benefits 
(including any federally administered State supplementation) in an 
amount which (after Sec. 416.525 is applied) exceeds six times the 
Federal Benefit Rate plus any federally administered State 
supplementation payable in a month, this unpaid amount must be paid into 
the dedicated account established and maintained as described in 
Sec. 416.640(e).
    (b) After the account is established, the representative payee may 
(but is not required to) deposit into the account any subsequent past-
due benefits (including any federally administered State 
supplementation) which are in an amount less than that specified in 
paragraph (a) of this section or any other funds representing an SSI 
underpayment which is equal to or exceeds the maximum Federal Benefit 
Rate.
    (c) If the underpaid individual dies before all the benefits due 
have been deposited into the dedicated account, we will follow the rules 
which apply to underpayments for the payment of any unpaid amount due to 
any eligible survivor as described in Sec. 416.542(b).

[61 FR 67206, Dec. 20, 1996]



Sec. 416.550  Waiver of adjustment or recovery--when applicable.

    Waiver of adjustment or recovery of an overpayment of SSI benefits 
may be granted when (EXCEPTION: This section does not apply to a sponsor 
of an alien):

[[Page 680]]

    (a) The overpaid individual was without fault in connection with an 
overpayment, and
    (b) Adjustment or recovery of such overpayment would either:
    (1) Defeat the purpose of title XVI, or
    (2) Be against equity and good conscience, or
    (3) Impede efficient or effective administration of title XVI due to 
the small amount involved.

[52 FR 8882, Mar. 20, 1987, as amended at 53 FR 16543, May 10, 1988]



Sec. 416.551  Waiver of adjustment or recovery--effect of.

    Waiver of adjustment or recovery of an overpayment from the overpaid 
person himself (or, after his death, from his estate) frees him and his 
eligible spouse from the obligation to repay the amount of the 
overpayment covered by the waiver. Waiver of adjustment or recovery of 
an overpayment from anyone other than the overpaid person himself or his 
estate (e.g., a surviving eligible spouse) does not preclude adjustment 
or recovery against the overpaid person or his estate.
    Example:  The recipient was overpaid $390. It was found that the 
overpaid recipient was eligible for waiver of adjustment or recovery of 
$260 of that amount, and such action was taken. Only $130 of the 
overpayment remained to be recovered by adjustment, refund, or the like.

[40 FR 47763, Oct. 10, 1975]



Sec. 416.552  Waiver of adjustment or recovery--without fault.

    Without fault relates only to the situation of the individual 
seeking relief from adjustment or recovery of an overpayment. The 
overpaid individual (and any other individual from whom the Social 
Security Administration seeks to recover the overpayment) is not 
relieved of liability and is not without fault solely because the Social 
Security Administration may have been at fault in making the 
overpayment. In determining whether an individual is without fault, the 
fault of the overpaid person and the fault of the individual seeking 
relief under the waiver provision are considered. Whether an individual 
is without fault depends on all the pertinent circumstances surrounding 
the overpayment in the particular case. The Social Security 
Administration considers the individual's understanding of the reporting 
requirements, the agreement to report events affecting payments, 
knowledge of the occurrence of events that should have been reported, 
efforts to comply with the reporting requirements, opportunities to 
comply with the reporting requirements, understanding of the obligation 
to return checks which were not due, and ability to comply with the 
reporting requirements (e.g., age, comprehension, memory, physical and 
mental condition). In determining whether an individual is without fault 
based on a consideration of these factors, the Social Security 
Administration will take into account any physical, mental, educational, 
or linguistic limitations (including any lack of facility with the 
English language) the individual may have. Although the finding depends 
on all of the circumstances in the particular case, an individual will 
be found to have been at fault in connection with an overpayment when an 
incorrect payment resulted from one of the following:
    (a) Failure to furnish information which the individual knew or 
should have known was material;
    (b) An incorrect statement made by the individual which he knew or 
should have known was incorrect (this includes the individual's 
furnishing his opinion or conclusion when he was asked for facts), or
    (c) The individual did not return a payment which he knew or could 
have been expected to know was incorrect.

[40 FR 47763, Oct. 10, 1975, as amended at 59 FR 1636, Jan. 12, 1994]



Sec. 416.553  Waiver of adjustment or recovery--defeat the purpose of the supplemental security income program.

    We will waive adjustment or recovery of an overpayment when an 
individual on whose behalf waiver is being considered is without fault 
(as defined in Sec. 416.552) and adjustment or recovery of the 
overpayment would defeat the purpose of the supplemental security income 
program.
    (a) General rule. We consider adjustment or recovery of an 
overpayment to defeat the purpose of the supplemental

[[Page 681]]

security income (SSI) program if the individual's income and resources 
are needed for ordinary and necessary living expenses under the criteria 
set out in Sec. 404.508(a) of this chapter
    (b) Alternative criteria for individuals currently eligible for SSI 
benefits. We consider an individual or couple currently eligible for SSI 
benefits to have met the test in paragraph (a) of this section if the 
individual's or couple's current monthly income (that is, the income 
upon which the individual's or couple's eligibility for the current 
month is determined) does not exceed--
    (1) The applicable Federal monthly benefit rate for the month in 
which the determination of waiver is made (see subpart D of this part); 
plus
    (2) The $20 monthly general income exclusion described in 
Secs. 416.1112(c)(3) and 416.1124(c)(10); plus
    (3) The monthly earned income exclusion described in 
Sec. 416.1112(c)(4); plus
    (4) The applicable State supplementary payment, if any (see subpart 
T of this part) for the month in which determination of waiver is made.

For those SSI recipients whose income exceeds these criteria, we follow 
the general rule in paragraph (a) of this section.

[45 FR 72649, Nov. 3, 1980, as amended at 50 FR 48573, Nov. 26, 1985]



Sec. 416.554  Waiver of adjustment or recovery--against equity and good conscience.

    We will waive adjustment or recovery of an overpayment when an 
individual on whose behalf waiver is being considered is without fault 
(as defined in Sec. 416.552) and adjustment or recovery would be against 
equity and good conscience. Adjustment or recovery is considered to be 
against equity and good conscience if an individual changed his or her 
position for the worse or relinquished a valuable right because of 
reliance upon a notice that payment would be made or because of the 
incorrect payment itself. In addition, adjustment or recovery is 
considered to be against equity and good conscience for an individual 
who is a member of an eligible couple that is legally separated and/or 
living apart for that part of an overpayment not received, but subject 
to recovery under Sec. 416.570.
    Example 1:  Upon being notified that he was eligible for 
supplemental security income payments, an individual signed a lease on 
an apartment renting for $15 a month more than the room he had 
previously occupied. It was subsequently found that eligibility for the 
payment should not have been established. In such a case, recovery would 
be considered ``against equity and good conscience.''
    Example 2:  An individual fails to take advantage of a private or 
organization charity, relying instead on the award of supplemental 
security income payments to support himself. It was subsequently found 
that the money was improperly paid. Recovery would be considered 
``against equity and good conscience.''
    Example 3:  Mr. and Mrs. Smith--members of an eligible couple--
separate in July. Later in July, Mr. Smith receives earned income 
resulting in an overpayment to both. Mrs. Smith is found to be without 
fault in causing the overpayment. Recovery from Mrs. Smith of Mr. 
Smith's part of the couple's overpayment is waived as being against 
equity and good conscience. Whether recovery of Mr. Smith's portion of 
the couple's overpayment can be waived will be evaluated separately.

[60 FR 16375, Mar. 30, 1995]



Sec. 416.555  Waiver of adjustment or recovery--impede administration.

    Waiver of adjustment or recovery is proper when the overpaid person 
on whose behalf waiver is being considered is without fault, as defined 
in Sec. 416.552, and adjustment or recovery would impede efficient or 
effective administration of title XVI due to the small amount involved. 
The amount of overpayment determined to meet such criteria is measured 
by the current average administrative cost of handling such overpayment 
case through such adjustment or recovery processes. In determining 
whether the criterion is met, the overpaid person's financial 
circumstances are not considered.

[40 FR 47764, Oct. 10, 1975]



Sec. 416.556  Waiver of adjustment or recovery--countable resources in excess of the limits prescribed in Sec. 416.1205 by $50 or less.

    (a) If any overpayment with respect to an individual (or an 
individual and his or her spouse if any) is attributable solely to the 
ownership or possession by the individual (and spouse if any) of 
countable resources having a value

[[Page 682]]

which exceeds the applicable dollar figure specified in Sec. 416.1205 by 
an amount of $50.00 or less, including those resources deemed to an 
individual in accordance with Sec. 416.1202, such individual (and spouse 
if any) shall be deemed to have been without fault in connection with 
the overpayment, and waiver of adjustment or recovery will be made, 
unless the failure to report the value of the excess resources correctly 
and in a timely manner was willful and knowing.
    (b) Failure to report the excess resources correctly and in a timely 
manner will be considered to be willful and knowing and the individual 
will be found to be at fault when the evidence clearly shows the 
individual (and spouse if any) was fully aware of the requirements of 
the law and of the excess resources and chose to conceal these 
resources. When an individual incurred a similar overpayment in the past 
and received an explanation and instructions at the time of the previous 
overpayment, we will generally find the individual to be at fault. 
However, in determining whether the individual is at fault, we will 
consider all aspects of the current and prior overpayment situations, 
and where we determine the individual is not at fault, we will waive 
adjustment or recovery of the subsequent overpayment. In making any 
determination or decision under this section concerning whether an 
individual is at fault, including a determination or decision of whether 
the failure to report the excess resources correctly and in a timely 
manner was willful and knowing, we will take into account any physical, 
mental, educational, or linguistic limitations (including any lack of 
facility with the English language) of the individual (and spouse if 
any).

[53 FR 16544, May 10, 1988, as amended at 59 FR 1636, Jan. 12, 1994]



Sec. 416.558  Notice relating to overpayments and underpayments.

    (a) Notice of overpayment and underpayment determination. Whenever a 
determination concerning the amount paid and payable for any period is 
made and it is found that, with respect to any month in the period, more 
or less than the correct amount was paid, written notice of the correct 
and incorrect amounts for each such month in the period will be sent to 
the individual against whom adjustment or recovery of the overpayment as 
defined in Sec. 416.537(a) may be effected or to whom the underpayment 
as defined in Secs. 416.536 and any amounts subject to installment 
payments as defined in Sec. 416.544 would be payable, notwithstanding 
the fact that part or all of the underpayment must be withheld in 
accordance with Sec. 416.543. When notifying an individual of a 
determination of overpayment, the Social Security Administration will, 
in the notice, also advise the individual that adjustment or recovery is 
required, as set forth in Sec. 416.571, except under certain specified 
conditions, and of his or her right to request waiver of adjustment or 
recovery of the overpayment under the provisions of Sec. 416.550.
    (b) Notice of waiver determination. Written notice of an initial 
determination of waiver shall be given the individual in accordance with 
Sec. 416.1404 unless the individual was not given notice of the 
overpayment in accordance with paragraph (a) of this section.
    (c) Notice relating to installment payments to individuals whose 
drug addiction or alcoholism is a contributing factor material to the 
determination of disability. Whenever a determination is made concerning 
the amount of any benefits due for a period that must be paid in 
installments, the written notice will also explain the amount of the 
installment payment and when an increased initial installment payment 
may be made (as described in Sec. 416.544). This written notice will be 
sent to the individual and his or her representative payee.

[40 FR 47764, Oct. 10, 1975, as amended at 55 FR 33668, Aug. 17, 1990; 
60 FR 8150, Feb. 10, 1995]



Sec. 416.560  Recovery--refund.

    An overpayment may be refunded by the overpaid recipient or by 
anyone on his or her behalf. Refund should be made in every case where 
the overpaid individual is not currently eligible for SSI benefits. If 
the individual is currently eligible for SSI benefits and has

[[Page 683]]

not refunded the overpayment, adjustment as set forth in Sec. 416.570 
will be proposed.

[55 FR 33669, Aug. 17, 1990]



Sec. 416.570  Adjustment--general rule.

    Where a recipient has been overpaid, the overpayment has not been 
refunded, and waiver of adjustment or recovery is not applicable, any 
payment due the overpaid recipient or his or her eligible spouse (or 
recovery from the estate of either or both when either or both die 
before adjustment is completed) is adjusted for recovery of the 
overpayment. Adjustment will generally be accomplished by withholding 
each month the amount set forth in Sec. 416.571 from the benefit payable 
to the individual except that, when the overpayment results from the 
disposition of resources as provided by Secs. 416.1240(b) and 416.1244, 
the overpayment will be recovered by withholding any payments due the 
overpaid recipient or his or her eligible spouse before any further 
payment is made. Absent a specific request from the person from whom 
recovery is sought, no overpayment made under title II or XVIII of the 
Act shall be recovered by adjusting SSI benefits, and absent a specific 
request, no overpayment of SSI benefits shall be adjusted against 
benefits payable under title II of the Act. In no case shall an 
overpayment of SSI benefits be adjusted against title XVIII benefits. No 
funds properly deposited into a dedicated account (see Secs. 416.546 and 
416.640(e)) can be used to repay an overpayment while the overpaid 
individual remains subject to the provisions of those sections.

[55 FR 33669, Aug. 17, 1990; 55 FR 42148, Oct. 17, 1990; 61 FR 67206, 
Dec. 20, 1996]



Sec. 416.571  10-percent limitation of recoupment rate--overpayment.

    Any adjustment or recovery of an overpayment for an individual in 
current payment status is limited in amount in any month to the lesser 
of (1) the amount of the individual's benefit payment for that month or 
(2) an amount equal to 10 percent of the individual's total income 
(countable income plus SSI and State supplementary payments) for that 
month. The countable income used is the countable income used in 
determining the SSI and State supplementary payments for that month 
under Sec. 416.420. When the overpaid individual is notified of the 
proposed SSI and/or federally administered State supplementary 
overpayment adjustment or recovery, the individual will be given the 
opportunity to request that such adjustment or recovery be made at a 
higher or lower rate than that proposed. If a lower rate is requested, a 
rate of withholding that is appropriate to the financial condition of 
the overpaid individual will be set after an evaluation of all the 
pertinent facts. An appropriate rate is one that will not deprive the 
individual of income required for ordinary and necessary living 
expenses. This will include an evaluation of the individual's income, 
resources, and other financial obligations. The 10-percent limitation 
does not apply where it is determined that the overpayment occurred 
because of fraud, willful misrepresentation, or concealment of material 
information committed by the individual or his or her spouse. 
Concealment of material information means an intentional, knowing, and 
purposeful delay in making or failure to make a report that will affect 
payment amount and/or eligibility. It does not include a mere omission 
on the part of the recipient; it is an affirmative act to conceal. The 
10-percent limitation does not apply to the recovery of overpayments 
incurred under agreements to dispose of resources pursuant to 
Sec. 416.1240. In addition, the 10-percent limitation does not apply to 
the reduction of any future SSI benefits as a consequence of the misuse 
of funds set aside in accordance with Sec. 416.1231(b) to meet burial 
expenses. Adjustment or recovery will be suspended if the recipient is 
subject to a reduced benefit rate under Sec. 416.414 because of residing 
in a medical facility in which Medicaid is paying a substantial portion 
of the recipient's cost of care.

[55 FR 33669, Aug. 17, 1990]

[[Page 684]]



                    Subpart F--Representative Payment

    Authority:  Secs. 702(a)(5), 1631 (a)(2) and (d)(1) of the Social 
Security Act (42 U.S.C. 902(a)(5) and 1383 (a)(2) and (d)(1)).

    Source:  47 FR 30475, July 14, 1982, unless otherwise noted.



Sec. 416.601  Introduction.

    (a) Explanation of representative payment. This subpart explains the 
principles and procedures that we follow in determining whether to make 
representative payment and in selecting a representative payee. It also 
explains the responsibilities that a representative payee has concerning 
the use of the funds he or she receives on behalf of a beneficiary. A 
representative payee may be either a person or an organization selected 
by us to receive benefits on behalf of a beneficiary. A representative 
payee will be selected if we believe that the interest of a beneficiary 
will be served by representative payment rather than direct payment of 
benefits. Generally, we appoint a representative payee if we have 
determined that the beneficiary is not able to manage or direct the 
management of benefit payments in his or her own interest.
    (b) Policy used to determine whether to make representative payment. 
(1) Our policy is that every beneficiary has the right to manage his or 
her own benefits. However, some beneficiaries due to a mental or 
physical condition or due to their youth may be unable to do so. Under 
these circumstances, we may determine that the interests of the 
beneficiary would be better served if we certified benefit payments to 
another person as a representative payee. However, we must select a 
representative payee for an individual who is eligible for benefits 
solely on the basis of disability if drug addiction or alcoholism is a 
contributing factor material to the determination of disability.
    (2) If we determine that representative payment is in the interest 
of a beneficiary, we will appoint a representative payee. We may appoint 
a representative payee even if the beneficiary is a legally competent 
individual. If the beneficiary is a legally incompetent individual, we 
may appoint the legal guardian or some other person as a representative 
payee.
    (3) If payment is being made directly to a beneficiary and a 
question arises concerning his or her ability to manage or direct the 
management of benefit payments, we will, if the beneficiary is 18 years 
old or older and has not been adjudged legally incompetent, continue to 
pay the beneficiary until we make a determination about his or her 
ability to manage or direct the management of benefit payments and the 
selection of a representative payee.

[47 FR 30475, July 14, 1982, as amended at 60 FR 8150, Feb. 10, 1995]



Sec. 416.610  When payment will be made to a representative payee.

    (a) We pay benefits to a representative payee on behalf of a 
beneficiary 18 years old or older when it appears to us that this method 
of payment will be in the interest of the beneficiary. We do this if we 
have information that the beneficiary is--
    (1) Legally incompetent or mentally incapable of managing benefit 
payments; or
    (2) Physically incapable of managing or directing the management of 
his or her benefit payments; or
    (3) Eligible for benefits solely on the basis of disability and drug 
addiction or alcoholism is a contributing factor material to the 
determination of disability.
    (b) Generally, if a beneficiary is under age 18, we will pay 
benefits to a representative payee. However, in certain situations, we 
will make direct payments to a beneficiary under age 18 who shows the 
ability to manage the benefits. For example, we make direct payment to a 
beneficiary under age 18 if the beneficiary is--
    (1) A parent and files for himself or herself and/or his or her 
child and he or she has experience in handling his or her own finances; 
or
    (2) Capable of using the benefits to provide for his or her current 
needs and no qualified payee is available; or
    (3) Within 7 months of attaining age 18 and is initially filing an 
application for benefits.

[47 FR 30475, July 14, 1982, as amended at 54 FR 35483, Aug. 28, 1989; 
60 FR 8150, Feb. 10, 1995]

[[Page 685]]



Sec. 416.615  Information considered in determining whether to make representative payment.

    In determining whether to make representative payment we consider 
the following information:
    (a) Court determinations. If we learn that a beneficiary has been 
found to be legally incompetent, a certified copy of the court's 
determination will be the basis of our determination to make 
representative payment.
    (b) Medical evidence. When available, we will use medical evidence 
to determine if a beneficiary is capable of managing or directing the 
management of benefit payments. For example, a statement by a physician 
or other medical professional based upon his or her recent examination 
of the beneficiary and his or her knowledge of the beneficiary's present 
condition will be used in our determination, if it includes information 
concerning the nature of the beneficiary's illness, the beneficiary's 
chances for recovery and the opinion of the physician or other medical 
professional as to whether the beneficiary is able to manage or direct 
the management of benefit payments.
    (c) Other evidence. We will also consider any statements of 
relatives, friends and other people in a position to know and observe 
the beneficiary, which contain information helpful to us in deciding 
whether the beneficiary is able to manage or direct the management of 
benefit payments.



Sec. 416.620  Information considered in selecting a representative payee.

    In selecting a payee we try to select the person, agency, 
organization or institution that will best serve the interest of the 
beneficiary. In making our selection we consider--
    (a) The relationship of the person to the beneficiary;
    (b) The amount of interest that the person shows in the beneficiary;
    (c) Any legal authority the person, agency, organization or 
institution has to act on behalf of the beneficiary;
    (d) Whether the potential payee has custody of the beneficiary; and
    (e) Whether the potential payee is in a position to know of and look 
after the needs of the beneficiary.



Sec. 416.621  Order of preference in selecting a representative payee.

    As a guide in selecting a representative payee, categories of 
preferred payees have been established. These preferences are flexible. 
Our primary concern is to select the payee who will best serve the 
beneficiary's interests. The preferences are:
    (a) For beneficiaries 18 years old or older our preference is--
    (1) A legal guardian, spouse (or other relative) who has custody of 
the beneficiary or who demonstrates strong concern for the personal 
welfare of the beneficiary;
    (2) A friend who has custody of the beneficiary or demonstrates 
strong concern for the personal welfare of the beneficiary;
    (3) A public or nonprofit agency or institution having custody of 
the beneficiary;
    (4) A private institution operated for profit and licensed under 
State law, which has custody of the beneficiary; and
    (5) Persons other than above who are qualified to carry out the 
responsibilities of a payee and who are able and willing to serve as a 
payee for the beneficiary; e.g., members of community groups or 
organizations who volunteer to serve as payee for a beneficiary.
    (b) For beneficiaries under age 18, our preference is--
    (1) A natural or adoptive parent who has custody of the beneficiary, 
or a guardian;
    (2) A natural or adoptive parent who does not have custody of the 
beneficiary, but is contributing toward the beneficiary's support and is 
demonstrating strong concern for the beneficiary's well being;
    (3) A natural or adoptive parent who does not have custody of the 
beneficiary and is not contributing toward his or her support but is 
demonstrating strong concern for the beneficiary's well being;
    (4) A relative or stepparent who has custody of the beneficiary;
    (5) A relative who does not have custody of the beneficiary but is 
contributing toward the beneficiary's support and is demonstrating 
concern for the beneficiary's well being;

[[Page 686]]

    (6) A relative or close friend who does not have custody of the 
beneficiary but is demonstrating concern for the beneficiary's well 
being; and
    (7) An authorized social agency or custodial institution.



Sec. 416.625  Information to be submitted by a representative payee.

    (a) Before we select a representative payee, the payee applicant 
must give us information showing his or her relationship to the 
beneficiary and his or her responsibility for the care of the 
beneficiary.
    (b) Anytime after we have selected a payee, we may ask the payee to 
give us information showing a continuing relationship to the beneficiary 
and a continuing responsibility for the care of the beneficiary. If the 
payee does not give us the requested information within a reasonable 
period of time, we may stop paying the payee unless we determine that 
the payee had a good reason for not complying with our request, and we 
receive the information requested.



Sec. 416.630  Advance notice of the determination to make representative payment.

    (a) Generally, whenever we intend to make representative payment and 
to name a payee, we notify the beneficiary or the individual acting on 
his or her behalf, of our proposed actions. In this notice we tell the 
person that we plan to name a representative payee and who that payee 
will be. We also ask the person to contact us if he or she objects to 
either proposed action. If he or she objects to either proposed action, 
the person may--
    (1) Review the evidence upon which the proposed actions will be 
based; and
    (2) Submit any additional evidence regarding the proposed actions.
    (b) If the person objects to the proposed actions, we will review 
our proposed determinations and consider any additional information 
given to us. We will then issue our determinations. If the person is 
dissatisfied with either determination, he or she may request a 
reconsideration.
    (c) If the person does not object to the proposed actions, we will 
issue our determinations. If the person is dissatisfied with either 
determination, he or she may request a reconsideration.



Sec. 416.635  Responsibilities of a representative payee.

    A representative payee has a responsibility to--
    (a) Use the payments he or she receives only for the use and benefit 
of the beneficiary in a manner and for the purposes he or she 
determines, under the guidelines in this subpart, to be in the best 
interests of the beneficiary;
    (b) Notify us of any event that will affect the amount of benefits 
the beneficiary receives or the right of the beneficiary to receive 
benefits (See subpart G of this part concerning these reporting 
requirements);
    (c) Submit to us, upon our request, a written report accounting for 
the benefits received;
    (d) Notify us of any change in his or her circumstances that would 
affect performance of the payee responsibilities; and
    (e) In cases in which the beneficiary is an individual under age 18 
(including cases in which the beneficiary is an individual whose low 
birth weight is a contributing factor material to our determination that 
the individual is disabled), ensure that the beneficiary is and has been 
receiving treatment to the extent considered medically necessary and 
available for the condition that was the basis for providing benefits 
(See Sec. 416.994a(i).)

[47 FR 30475, July 14, 1982, as amended at 62 FR 6420, Feb. 11, 1997]

    Effective Date Note:  At 62 FR 6420, Feb. 11, 1997, in Sec. 416.635, 
paragraphs (c) and (d) were revised and paragraph (e) was added, 
effective Apr. 14, 1997. For the convenience of the user, the superseded 
text is set forth as follows:

Sec. 416.635  Responsibilities of a representative payee.

                                * * * * *

    (c) Submit to us, upon our request, a written report accounting for 
the benefits received; and
    (d) Notify us of any change in his or her circumstances that would 
affect performance of the payee responsibilities.

                                * * * * *

[[Page 687]]



Sec. 416.640  Use of benefit payments.

    (a) Current maintenance. We will consider that payments we certify 
to a representive payee have been used for the use and benefit of the 
beneficiary if they are used for the beneficiary's current maintenance. 
Current maintenance includes costs incurred in obtaining food, shelter, 
clothing, medical care and personal comfort items.
    Example:  A Supplemental Security Income beneficiary is entitled to 
a monthly benefit of $264. The beneficiary's son, who is the 
representative payee, disburses the benefits in the following manner:

Rent and Utilities...............................................   $166
Medical..........................................................     20
Food.............................................................     60
Clothing.........................................................     10
Miscellaneous....................................................      8
                                                                        

    The above expenditures would represent proper disbursements on 
behalf of the beneficiary.
    (b) Institution not receiving Medicaid funds on beneficiary's 
behalf. If a beneficiary is receiving care in a Federal, State, or 
private institution because of mental or physical incapacity, current 
maintenance will include the customary charges for the care and services 
provided by an institution, expenditures for those items which will aid 
in the beneficiary's recovery or release from the institution, and 
nominal expenses for personal needs (e.g., personal hygiene items, 
snacks, candy) which will improve the beneficiary's condition. Except as 
provided under Sec. 416.212, there is no restriction in using SSI 
benefits for a beneficiary's current maintenance in an institution. Any 
payments remaining from SSI benefits may be used for a temporary period 
to maintain the beneficiary's residence outside of the institution 
unless a physician has certified that the beneficiary is not likely to 
return home.
    Example:  A hospitalized disabled beneficiary is entitled to a 
monthly benefit of $264. The beneficiary, who resides in a boarding 
home, has resided there for over 6 years. It is doubtful that the 
beneficiary will leave the boarding home in the near future. The 
boarding home charges $215 per month for the beneficiary's room and 
board.
    The beneficiary's representative payee pays the boarding home $215 
(assuming an unsuccessful effort was made to negotiate a lower rate 
during the beneficiary's absence) and uses the balance to purchase 
miscellaneous personal items for the beneficiary. There are no benefits 
remaining which can be conserved on behalf of the beneficiary. The 
payee's use of the benefits is consistent with our guidelines.
    (c) Institution receiving Medicaid funds on beneficiary's behalf. 
Except in the case of a beneficiary receiving benefits payable under 
Sec. 416.212, if a beneficiary resides throughout a month in an 
institution that receives more than 50 percent of the cost of care on 
behalf of the beneficiary from Medicaid, any payments due shall be used 
only for the personal needs of the beneficiary and not for other items 
of current maintenance.
    Example:  A disabled beneficiary resides in a hospital. The 
superintendent of the hospital receives $30 per month as the 
beneficiary's payee. The benefit payment is disbursed in the following 
manner, which would be consistent with our guidelines:

Miscellaneous canteen items........................................  $10
Clothing...........................................................   15
Conserved for future needs of the beneficiary......................    5
                                                                        

    (d) Claims of creditors. A payee may not be required to use benefit 
payments to satisfy a debt of the beneficiary, if the debt arose prior 
to the first month for which payments are certified to a payee. If the 
debt arose prior to this time, a payee may satisfy it only if the 
current and reasonably foreseeable needs of the beneficiary are met.
    Example:  A disabled beneficiary was determined to be eligible for a 
monthly benefit payment of $208 effective April 1981. The benefits were 
certified to the beneficiary's brother who was appointed as the 
representative payee. The payee conserved $27 of the benefits received. 
In June 1981 the payee received a bill from a doctor who had treated the 
beneficiary in February and March 1981. The bill was for $175.
    After reviewing the beneficiary's current needs and resources, the 
payee decided not to use any of the benefits to pay the doctor's bill. 
(Approximately $180 a month is required for the beneficiary's current 
monthly living expenses--rent, utilities, food, and insurance--and the 
beneficiary will need new shoes and a coat within the next few months.)
    Based upon the above, the payee's decision not to pay the doctor's 
bill is consistent with our guidelines.
    (e) Dedicated accounts for eligible individuals under age 18. (1) 
When past-due benefit payments are required to be paid into a separate 
dedicated account

[[Page 688]]

(see Sec. 416.546), the representative payee is required to establish in 
a financial institution an account dedicated to the purposes described 
in paragraph (e)(2) of this section. This dedicated account may be a 
checking, savings or money market account subject to the titling 
requirements set forth in Sec. 416.645. Dedicated accounts may not be in 
the form of certificates of deposit, mutual funds, stocks, bonds or 
trusts.
    (2) A representative payee shall use dedicated account funds, 
whether deposited on a mandatory or permissive basis (as described in 
Sec. 416.546), for the benefit of the child and only for the following 
allowable expenses--
    (i) Medical treatment and education or job skills training;
    (ii) If related to the child's impairment(s), personal needs 
assistance; special equipment; housing modification; and therapy or 
rehabilitation; or
    (iii) Other items and services related to the child's impairment(s) 
that we determine to be appropriate. The representative payee must 
explain why or how the other item or service relates to the 
impairment(s) of the child.
    (3) Representative payees must keep records and receipts of all 
deposits to and expenditures from dedicated accounts, and must submit 
these records to us upon our request, as explained in Secs. 416.635 and 
416.665.
    (4) The use of funds from a dedicated account in any manner not 
authorized by this section constitutes a misapplication of benefits. 
These misapplied benefits are not an overpayment as defined in 
Sec. 416.537; however, if we determine that a representative payee 
knowingly misapplied funds in a dedicated account, that representative 
payee shall be liable to us in an amount equal to the total amount of 
the misapplied funds.
    (5) The restrictions described in this section and the income and 
resource exclusions described in Sec. Sec. 416.1124(c)(20) and 416.1247 
shall continue to apply until all funds in the dedicated account are 
depleted or eligibility for benefits terminates, whichever comes first. 
This continuation of the restrictions and exclusions applies in 
situations where funds remain in the account in any of the following 
situations--
    (i) A child attains age 18, continues to be eligible and receives 
payments directly;
    (ii) A new representative payee is appointed. When funds remaining 
in a dedicated account are returned to us by the former representative 
payee, the new representative payee must establish an account in a 
financial institution into which we will deposit these funds, even if 
the amount is less than that prescribed in Sec. 416.546; or
    (iii) During a period of suspension due to ineligibility as 
described in Sec. 416.1321, administrative suspension, or a period of 
eligibility for which no payment is due.

[47 FR 30475, July 14, 1982, as amended at 61 FR 10278, Mar. 13, 1996; 
61 FR 67206, Dec. 20, 1996]



Sec. 416.640a  Compensation for qualified organizations serving as representative payees.

    (a) General. A community-based, nonprofit social service agency 
which meets the requirements set out in paragraph (b) of this section 
may request our authorization to collect a monthly fee from a 
beneficiary for providing representative payee services.
    (b) Organizations that may request compensation. We will authorize 
an organization to collect a fee if all the following requirements are 
met.
    (1) It is community-based, i.e., serves or represents one or more 
neighborhoods, city or county locales and is located within its service 
area.
    (2) It is a nonprofit social service organization founded for 
religious, charitable or social welfare purposes and is tax exempt under 
section 501(c) of the Internal Revenue Code.
    (3) It is bonded or licensed in the State in which it serves as 
representative payee.
    (4) It regularly provides representative payee services concurrently 
to at least five beneficiaries. An organization which has received our 
authorization to collect a fee for representative payee services, but is 
temporarily not a payee for at least five beneficiaries, may request our 
approval to continue to collect fees.
    (5) It was in existence on October 1, 1988.

[[Page 689]]

    (6) It is not a creditor of the beneficiary. See paragraph (c) of 
this section for exceptions to this requirement.
    (c) Creditor relationship. If an organization has a creditor 
relationship with a beneficiary we may, on a case-by-case basis, 
authorize the organization to collect a fee for payee services 
notwithstanding this relationship. To provide this authorization, we 
will review all of the evidence submitted by the organization and 
authorize collection of a fee when:
    (1) The services provided by the organization help to meet the 
current needs of the beneficiary; and
    (2) The amount the organization charges the beneficiary for these 
services is commensurate with the beneficiary's ability to pay.
    (d) Authorization process. (1) An organization must request in 
writing and receive an authorization from us before it may collect a 
fee.
    (2) An organization seeking authorization to collect a fee must also 
give us evidence to show that it is qualified, pursuant to paragraphs 
(b) and (c) of this section, to collect a fee.
    (3) If the evidence provided to us by the organization shows that 
the requirements of this section are met, we will notify the 
organization in writing that it is authorized to collect a fee. If we 
need more evidence, or if we are not able to authorize the collection of 
a fee, we will also notify the organization in writing that we have not 
authorized the collection of a fee.
    (e) Revocation, cancellation and expiration of the authorization. 
(1) We will revoke an authorization to collect a fee if we have evidence 
which establishes that an organization no longer meets the requirements 
of this section. We will issue a written notice to the organization 
explaining the reason(s) for the revocation.
    (2) An organization may cancel its authorization at any time upon 
written notice to us.
    (f) Notices. The written notice we will send to an organization 
authorizing the collection of a fee will contain an effective date for 
the collection of a fee pursuant to paragraphs (b) and (c) of this 
section. The effective date will be no earlier than the month in which 
the organization asked for authorization to collect a fee. The notice 
will be applicable to all beneficiaries for whom the organization was 
payee at the time of our authorization and all beneficiaries for whom 
the organization becomes payee while the authorization is in effect.
    (g) Limitation on fees. (1) An organization authorized to collect a 
fee pursuant to this section may collect from a beneficiary a monthly 
fee for expenses (including overhead) it has incurred in providing payee 
services to a beneficiary if the fee does not exceed the lesser of--
    (i) 10 percent of the beneficiary's monthly benefit payments; or
    (ii) $25.00 per month.
    (2) Any agreement providing for a fee in excess of the amount 
permitted under paragraph (g)(1) of this section shall be void and 
treated as misuse of benefits by the organization of the individual's 
benefits under Sec. 416.641.
    (3) A fee may be collected for any month during which the 
organization--
    (i) Provides representative payee services;
    (ii) Receives a benefit payment for the beneficiary; and
    (iii) Is authorized to receive a fee for representative payee 
services.
    (4) Fees for services may not be taken from any funds conserved for 
the beneficiary by a payee in accordance with Sec. 416.645.
    (5) Generally, an organization may not collect a fee for months in 
which it does not receive a benefit payment. However, an organization 
will be allowed to collect a fee for months in which it did not receive 
a payment if we later issue payments for these months and the 
organization:
    (i) Received our approval to collect a fee for the months for which 
payment is made;
    (ii) Provided payee services in the months for which payment is 
made; and
    (iii) Was the payee when the retroactive payment was paid by us.
    (6) An authorized organization may not collect a fee for the 
expenses it incurred in providing representative payee services if these 
expenses are paid from another source.
    (7) An authorized organization may collect a fee for representative 
payee

[[Page 690]]

services from the entire monthly benefit amount received, including any 
payment of a federally-administered State supplementary payment under 
subpart T of this part.
    (8) In the case of an institutionalized beneficiary a fee may not be 
withheld from benefits which must be set aside for the beneficiary's 
personal needs in accordance with Sec. 416.640(c).

[57 FR 23057, June 1, 1992; 57 FR 27091, June 17, 1992]



Sec. 416.641  Liability for misuse of benefit payments.

    Our obligation to the beneficiary is completely discharged when we 
make a correct payment to a representative payee on behalf of the 
beneficiary. The payee personally, and not SSA, may be liable if the 
payee misuses the beneficiary's benefits.



Sec. 416.645  Conservation and investment of benefit payments.

    (a) General. If payments are not needed for the beneficiary's 
current maintenance or reasonably foreseeable needs, they shall be 
conserved or invested on behalf of the beneficiary. Conserved funds 
should be invested in accordance with the rules followed by trustees. 
Any investment must show clearly that the payee holds the property in 
trust for the beneficiary.
    Example:  A State institution for mentally retarded children, which 
is receiving Medicaid funds, is representative payee for several 
beneficiaries. The checks the payee receives are deposited into one 
account which shows that the benefits are held in trust for the 
beneficiaries. The institution has supporting records which show the 
share each individual has in the account. Funds from this account are 
disbursed fairly quickly after receipt for the personal needs of the 
beneficiaries. However, not all those funds were disbursed for this 
purpose. As a result, several of the beneficiaries have significant 
accumulated resources in this account. For those beneficiaries whose 
benefits have accumulated over $150, the funds should be deposited in an 
interest-bearing account or invested relatively free of risk on behalf 
of the beneficiaries.
    (b) Preferred investments. Preferred investments for excess funds 
are U.S. Savings Bonds and deposits in an interest or dividend paying 
account in a bank, trust company, credit union, or savings and loan 
association which is insured under either Federal or State law. The 
account must be in a form which shows clearly that the representative 
payee has only a fiduciary and not a personal interest in the funds. If 
the payee is the legally appointed guardian or fiduciary of the 
beneficiary, the account may be established to indicate this 
relationship. If the payee is not the legally appointed guardian or 
fiduciary, the accounts may be established as follows:
    (1) For U.S. Savings Bonds--

    ------------ (Name of beneficiary) ------ (Social Security Number), 
for whom ------------ (Name of payee) is representative payee for 
Supplemental Security Income benefits;

    (2) For interest or dividend paying accounts--

    ------------ (Name of beneficiary) by ------------ (Name of payee), 
representative payee.

    (c) Interest and dividend payments. The interest and dividends which 
result from an investment are the property of the beneficiary and may 
not be considered to be the property of the payee.



Sec. 416.650  When a new representative payee will be selected.

    When we learn that the interests of the beneficiary are not served 
by continuing payment to the present payee or that the present payee is 
no longer able to carry out the payee responsibilities, we try to find a 
new payee. We will select a new payee if we find a preferred payee or if 
the present payee--
    (a) Has not used the benefit payments on the beneficiary's behalf in 
accordance with the guidelines in this subpart;
    (b) Has not carried out the other responsibilities described in this 
subpart;
    (c) Dies;
    (d) No longer wishes to be payee;
    (e) Is unable to manage the benefit payments; or
    (f) Fails to cooperate, within a reasonable time, in providing 
evidence, accounting, or other information which we request.



Sec. 416.655  When representative payment will be stopped.

    If a beneficiary receiving representative payment shows us that he 
or she is

[[Page 691]]

mentally and physically able to manage or direct the management of 
benefit payments, we will make direct payment. Information which the 
beneficiary may give us to support his or her request for direct payment 
include the following--
    (a) A physician's statement regarding the beneficiary's condition, 
or a statement by a medical officer of the institution where the 
beneficiary is or was confined, showing that the beneficiary is able to 
manage or direct the management of his or her funds; or
    (b) A certified copy of a court order restoring the beneficiary's 
rights in a case where a beneficiary was adjudged legally incompetent; 
or
    (c) Other evidence which establishes the beneficiary's ability to 
manage or direct the management of benefits.



Sec. 416.660  Transfer of accumulated benefit payments.

    A representative payee who has conserved or invested benefit 
payments shall transfer these funds, and the interest earned from the 
invested funds, to either a successor payee, or to us, as we will 
specify. If the funds and the earned interest are returned to us, we 
will recertify them to a successor representative payee or to the 
beneficiary.



Sec. 416.665  Accounting for benefit payments.

    A representative payee is accountable for the use of benefits. We 
may require periodic written reports from representative payees. We may 
also, in certain situations, verify how a representative payee used the 
funds. A representative payee should keep records of what was done with 
the benefit payments in order to make accounting reports. We may ask the 
following questions--
    (a) The amount of benefit payments on hand at the beginning of the 
accounting period;
    (b) How the benefit payments were used;
    (c) How much of the benefit payments were saved and how the savings 
were invested;
    (d) Where the beneficiary lived during the accounting period; and
    (e) The amount of the beneficiary's income from other sources during 
the accounting period. We ask for information about other funds to 
enable us to evaluate the use of benefit payments.



                       Subpart G--Reports Required

    Authority:  Secs. 702(a)(5), 1611, 1612, 1613, 1614, and 1631 of the 
Social Security Act (42 U.S.C. 902(a)(5), 1382, 1382a, 1382b, 1382c, and 
1383); sec. 211, Pub. L. 93-66, 87 Stat. 154 (42 U.S.C. 1382 note).

    Source:  46 FR 5873, Jan. 21, 1981, unless otherwise noted.

                              Introduction



Sec. 416.701  Scope of subpart.

    (a) Report provisions. The Social Security Administration, to 
achieve efficient administration of the Supplemental Security Income 
(SSI) program for the Aged, Blind, and Disabled, requires that you (or 
your representative) must report certain events to us. It is important 
for us to know about these events because they may affect your continued 
eligibility for SSI benefits or the amount of your benefits. This 
subpart tells you what events you must report; what your reports must 
include; and when reports are due. The rules regarding reports are in 
Secs. 416.704 through 416.714.
    (b) Penalty deductions. If you fail to make a required report when 
it is due, you may suffer a penalty. This subpart describes the 
penalties; discusses when we may impose them; and explains that we will 
not impose a penalty if you have good cause for failing to report 
timely. The rules regarding penalties are in Secs. 416.722 through 
416.732.



Sec. 416.702  Definitions.

    For purposes of this subpart--
    Essential person means someone whose presence was believed to be 
necessary for your welfare under the State program that preceded the SSI 
program. (See Secs. 416.241 through 416.249.)
    Parent means a natural parent, an adoptive parent, or the spouse of 
a natural or adoptive parent.
    Representative payee means an individual, an agency, or an 
institution selected by us to receive and manage SSI benefits on your 
behalf. (See subpart F of this part for details describing when a 
representative payee is selected and a

[[Page 692]]

representative payee's responsibilities.)
    Residence in the United States means that your permanent home is in 
the United States.
    United States or U.S. means the 50 States, the District of Columbia, 
and the Northern Mariana Islands.
    We, Us, or Our means the Social Security Administration.
    You or Your means an applicant, an eligible individual, an eligible 
spouse, or an eligible child.

                            Report Provisions



Sec. 416.704  Who must make reports.

    (a) You are responsible for making required reports to us if you 
are--
    (1) An eligible individual (see Sec. 416.120(c)(13));
    (2) An eligible spouse (see Sec. 416.120(c)(14));
    (3) An eligible child (see Secs. 416.120(c)(13) and 416.1856); or
    (4) An applicant awaiting a final determination upon an application.
    (b) If you have a representative payee, and you have not been 
legally adjudged incompetent, either you or your representative payee 
must make the required reports.
    (c) If you have a representative payee and you have been legally 
adjudged incompetent, you are not responsible for making reports to us; 
however, your representative payee is responsible for making required 
reports to us.

[46 FR 5873, Jan. 21, 1981, as amended at 51 FR 10616, Mar. 28, 1986]



Sec. 416.708  What you must report.

    This section describes the events that you must report to us. They 
are--
    (a) A change of address. You must report to us any change in your 
mailing address and any change in the address where you live.
    (b) A change in living arrangements. You must report to us any 
change in the make-up of your household: That is, any person who comes 
to live in your household and any person who moves out of your 
household.
    (c) A change in income. You must report to us any increase or 
decrease in your income, and any increase or decrease in the income of--
    (1) Your ineligible spouse who lives with you;
    (2) Your essential person;
    (3) Your parent, if you are an eligible child and your parent lives 
with you; or
    (4) An ineligible child who lives with you.

However, you need not report an increase in your Social Security 
benefits if the increase is only a cost-of-living adjustment. (For a 
complete discussion of what we consider income, see subpart K. See 
subpart M, Sec. 416.1323 regarding suspension because of excess income.)
    (d) A change in resources. You must report to us any resources you 
receive or part with, and any resources received or parted with by--
    (1) Your ineligible spouse who lives with you;
    (2) Your essential person; or
    (3) Your parent, if you are an eligible child and your parent lives 
with you. (For a complete discussion of what we consider a resource, see 
subpart L. See subpart M, Sec. 416.1324 regarding suspension because of 
excess resources.)
    (e) Eligibility for other benefits. You must report to us your 
eligibility for benefits other than SSI benefits. See Secs. 416.210 and 
416.1330 regarding your responsibility to apply for any other benefits 
for which you may be eligible.
    (f) Certain deaths. (1) If you are an eligible individual, you must 
report the death of your eligible spouse, the death of your ineligible 
spouse who was living with you, and the death of any other person who 
was living with you.
    (2) If you are an eligible spouse, you must report the death of your 
spouse, and the death of any other person who was living with you.
    (3) If you are an eligible child, you must report the death of a 
parent who was living with you, and the death of any other person who 
was living with you.
    (4) If you are a representative payee, you must report the death of 
an eligible individual, eligible spouse, or eligible child whom you 
represent; and the death of any other person who was living in the 
household of the individual you represent.

[[Page 693]]

    (5) If you have a representative payee, you must report the death of 
your representative payee.
    (g) A change in marital status. You must report to us--
    (1) Your marriage, your divorce, or the annulment of your marriage;
    (2) The marriage, divorce, or annulment of marriage of your parent 
who lives with you, if you are an eligible child;
    (3) The marriage of an ineligible child who lives with you, if you 
are an eligible child; and
    (4) The marriage of an ineligible child who lives with you if you 
are an eligible individual living with an ineligible spouse.
    (h) Medical improvements. If you are eligible for SSI benefits 
because of disability or blindness, you must report any improvement in 
your medical condition to us.
    (i) Refusal to accept vocational rehabilitation services. If we have 
referred you for vocational rehabilitation services and you refuse to 
accept these services, you must report your refusal to us.
    (j) Refusal to accept treatment for drug addiction or alcoholism; 
discontinuance of treatment. If you have been medically determined to be 
a drug addict or an alcoholic, and you refuse to accept treatment for 
drug addiction or alcoholism at an approved facility or institution, or 
if you discontinue treatment, you must report your refusal or 
discontinuance to us.
    (k) Admission to or discharge from a medical facility, public 
institution, or private institution. You must report to us your 
admission to or discharge from--
    (1) A hospital;
    (2) A skilled nursing facility;
    (3) An intermediate care facility; or
    (4) A public institution (defined in Sec. 416.201); or
    (5) A private institution. Private institution means an institution 
as defined in Sec. 416.201 which is not administered by or the 
responsibility of a governmental unit.
    (l) A change in school attendance. You must report to us--
    (1) A change in your school attendance if you are an eligible child;
    (2) A change in school attendance of an ineligible child who is at 
least age 18 but less than 21 and who lives with you if you are an 
eligible child; and
    (3) A change in school attendance of an ineligible child who is at 
least age 18 but less than 21 and who lives with you if you are an 
eligible individual living with an ineligible spouse.
    (m) A termination of residence in the U.S. You must report to us if 
you leave the United States voluntarily with the intention of abandoning 
your residence in the United States or you leave the United States 
involuntarily (for example, you are deported).
    (n) Leaving the U.S. temporarily. You must report to us if you leave 
the United States for 30 or more consecutive days or for a full calendar 
month (without the intention of abandoning your residence in the U.S.).

[46 FR 5873, Jan. 21, 1981, as amended at 51 FR 10616, Mar. 14, 1986]



Sec. 416.710  What reports must include.

    When you make a report you must tell us--
    (a) The name and social security number under which benefits are 
paid;
    (b) The name of the person about whom you are reporting;
    (c) The event you are reporting and the date it happened; and
    (d) Your name.



Sec. 416.712  Form of the report.

    You may make a report in any of the ways described in this section.
    (a) Written reports. You may write a report on your own paper or on 
a printed form supplied by us. You may mail a written report or bring it 
to one of our offices.
    (b) Oral reports. You may report to us by telephone, or you may come 
to one of our offices and tell one of our employees what you are 
reporting.
    (c) Other forms. You may use any other suitable method of 
reporting--for example, a telegram or a cable.



Sec. 416.714  When reports are due.

    (a) A reportable event happens. You should report to us as soon as 
an event listed in Sec. 416.708 happens. If you do not report within 10 
days after the close of the month in which the event happens, your 
report will be late. We may impose a penalty deduction from your

[[Page 694]]

benefits for a late report (see Secs. 416.722 through 416.732).
    (b) We request a report. We may request a report from you if we need 
information to determine continuing eligibility or the correct amount of 
your SSI benefit payments. If you do not report within 30 days of our 
written request, we may determine that you are ineligible to receive SSI 
benefits. We will suspend your benefits effective with the month 
following the month in which we determine that you are ineligible to 
receive SSI benefits because of your failure to give us necessary 
information.

[46 FR 5873, Jan. 21, 1981, as amended at 50 FR 48573, Nov. 26, 1985]

                           Penalty Deductions



Sec. 416.722  Circumstances under which we make a penalty deduction.

    A penalty deduction is made from your benefits if--
    (a) You fail to make a required report on time (see Secs. 416.708 
and 416.714);
    (b) We must reduce, suspend, or terminate your benefits because of 
the event you have not reported;
    (c) You received and accepted an SSI benefit for the penalty period 
(see Secs. 416.724 through 416.728 for penalty period definitions); and
    (d) You do not have good cause for not reporting on time (see 
Sec. 416.732).



Sec. 416.724  Amounts of penalty deductions.

    (a) Amounts deducted. If we find that we must impose a penalty 
deduction, you will lose from your SSI benefits a total amount of--
    (1) $25 for a report overdue in the first penalty period;
    (2) $50 for a report overdue in the second penalty period; and
    (3) $100 for a report overdue in the third (or any following) 
penalty period.
    (b) Limit on number of penalties. Even though more than one required 
report is overdue from you at the end of a penalty period, we will limit 
the number of penalty deductions imposed to one penalty deduction for 
any one penalty period.



Sec. 416.726  Penalty period: First failure to report.

    (a) First penalty period. The first penalty period begins on the 
first day of the month you apply for SSI benefits and ends on the day we 
first learn that you should have made a required report, but did not do 
so within 10 days after the close of the month in which the event 
happened. There may be more than one required report overdue at the end 
of the first penalty period, but we will impose no more than one penalty 
deduction for the period.
    (b) Extension of first penalty period. If you have good cause for 
not making a report on time (see Sec. 416.732), we will extend the first 
penalty period to the day when we learn that you should have made 
another required report, but did not do so within 10 days after the 
close of the month in which the event happened. There may be more than 
one required report overdue at the end of the extended first penalty 
period, but we will impose no more than one penalty deduction for the 
extended period.

[46 FR 5873, Jan. 21, 1981, as amended at 50 FR 48573, Nov. 26, 1985]



Sec. 416.728  Penalty period: Second failure to report.

    (a) Second penalty period. The second penalty period begins on the 
day after the first penalty period ends. The second penalty period ends 
on the day we first learn that you should have made a required report, 
but did not do so within 10 days after the close of the month in which 
the event happened. (The event may have happened during the first 
penalty period, with the reporting due date in the second penalty 
period. The due date and the failure to report on time are the important 
factors in establishing a penalty period.) There may be more than one 
required report overdue at the end of the second penalty period, but we 
will impose no more than one penalty deduction for the period.
    (b) Extension of second penalty period. If you have good cause for 
not making a report on time (see Sec. 416.732), we will extend the 
second penalty period to the day when we learn that you should have made 
another required report, but did not do so within 10 days after the 
close of the month in which the event

[[Page 695]]

happened. There may be more than one required report overdue at the end 
of the extended second penalty period, but we will impose no more than 
one penalty deduction for the extended period.

[46 FR 5873, Jan. 21, 1981, as amended at 50 FR 48573, Nov. 26, 1985]



Sec. 416.730  Penalty period: Three or more failures to report.

    (a) Third (or a following) penalty period. A third (or a following) 
penalty period begins the day after the last penalty period ends. This 
penalty period ends on the day we first learn that you should have made 
a required report during the penalty period, but did not do so within 10 
days after the close of the month in which the event happened. (The 
event may have happened during an earlier penalty period, with the 
reporting due date in the third (or a following) penalty period. The due 
date and the failure to report on time are the important factors in 
establishing a penalty period.) There may be more than one required 
report overdue at the end of a penalty period, but we will impose no 
more than one penalty deduction for any one penalty period.
    (b) Extension of third (or a following) penalty period. Just as with 
the first and second penalty periods, if you have good cause for not 
making a report on time during the third (or a following) penalty period 
(see Sec. 416.732), we will extend the penalty period to the day when we 
learn that you should have made another required report, but did not do 
so within 10 days after the close of the month in which the event 
happened. There may be more than one required report overdue at the end 
of an extended penalty period, but we will impose no more than one 
penalty deduction for any one extended penalty period.

[46 FR 5873, Jan. 21, 1981, as amended at 50 FR 48573, Nov. 26, 1985]



Sec. 416.732  No penalty deduction if you have good cause for failure to report timely.

    (a) We will find that you have good cause for failure to report 
timely and we will not impose a penalty deduction, if--
    (1) You are ``without fault'' as defined in Sec. 416.552; or
    (2) Your failure or delay in reporting is not willful. ``Not 
willful'' means that--
    (i) You did not have full knowledge of the existence of your 
obligation to make a required report; or
    (ii) You did not intentionally, knowingly, and purposely fail to 
make a required report.


However, in either case we may require that you refund an overpayment 
caused by your failure to report. See subpart E of this part for waiver 
of recovery of overpayments.
    (b) In determining whether you have good cause for failure to report 
timely, we will take into account any physical, mental, educational, or 
linguistic limitations (including any lack of facility with the English 
language) you may have.

[59 FR 1636, Jan. 12, 1994]



                     Subpart H--Determination of Age

    Authority:  Secs. 702(a)(5), 1601, 1614(a)(1) and 1631 of the Social 
Security Act (42 U.S.C. 902(a)(5), 1381, 1382c(a)(1), and 1383).

    Source:  39 FR 12731, Apr. 8, 1974, unless otherwise noted.



Sec. 416.801  Evidence as to age--when required.

    An applicant for benefits under title XVI of the Act shall file 
supporting evidence showing the date of his birth if his age is a 
condition of eligibility for benefits or is otherwise relevant to the 
payment of benefits pursuant to such title XVI. Such evidence may also 
be required by the Administration as to the age of any other individual 
when such other individual's age is relevant to the determination of the 
applicant's eligibility or benefit amount. In the absence of evidence to 
the contrary, if the applicant alleges that he is at least 68 years of 
age and submits any documentary evidence at least 3 years old which 
supports his allegation, no further evidence of his age is required. In 
the absence of evidence to the contrary, if a State required reasonably 
acceptable evidence of age and provides a statement as to an applicant's 
age,

[[Page 696]]

no further evidence of his age is required unless a statistically valid 
quality control sample has shown that a State's determination of age 
procedures do not yield an acceptable low rate of error.



Sec. 416.802  Type of evidence to be submitted.

    Where an individual is required to submit evidence of date of birth 
as indicated in Sec. 416.801, he shall submit a public record of birth 
or a religious record of birth or baptism established or recorded before 
his fifth birthday, if available. Where no such document recorded or 
established before age 5 is available the individual shall submit as 
evidence of age another document or documents which may serve as the 
basis for a determination of the individual's date of birth provided 
such evidence is corroborated by other evidence or by information in the 
records of the Administration.



Sec. 416.803  Evaluation of evidence.

    Generally, the highest probative value will be accorded to a public 
record of birth or a religious record of birth or baptism established or 
recorded before age 5. Where such record is not available, and other 
documents are submitted as evidence of age, in determining their 
probative value, consideration will be given to when such other 
documents were established or recorded, and the circumstances attending 
their establishment or recordation. Among the documents which may be 
submitted for such purpose are: school record, census record, Bible or 
other family record, church record of baptism or confirmation in youth 
or early adult life, insurance policy, marriage record, employment 
record, labor union record, fraternal organization record, military 
record, voting record, vaccination record, delayed birth certificate, 
birth certificate of child of applicant, physician's or midwife's record 
of birth, immigration record, naturalization record, or passport.



Sec. 416.804  Certified copy in lieu of original.

    In lieu of the original of any record, except a Bible or other 
family record, there may be submitted as evidence of age a copy of such 
record or a statement as to the date of birth shown by such record, 
which has been duly certified (see Sec. 404.701(g) of this chapter).



Sec. 416.805  When additional evidence may be required.

    If the evidence submitted is not convincing, additional evidence may 
be required.



Sec. 416.806  Expedited adjudication based on documentary evidence of age.

    Where documentary evidence of age recorded at least 3 years before 
the application is filed, which reasonably supports an aged applicant's 
allegation as to his age, is submitted, payment of benefits may be 
initiated even though additional evidence of age may be required by 
Secs. 416.801 through 416.805. The applicant will be advised that 
additional evidence is required and that, if it is subsequently 
established that the prior finding of age is incorrect, the applicant 
will be liable for refund of any overpayment he has received. If any of 
the evidence initially submitted tends to show that the age of the 
applicant or such other person does not correspond with the alleged age, 
no benefits will be paid until the evidence required by Secs. 416.801 
through 416.805 is submitted.



             Subpart I--Determining Disability and Blindness

    Authority:  Secs. 702(a)(5), 1611, 1614, 1619, 1631(a), (c), and 
(d)(1), and 1633 of the Social Security Act (42 U.S.C. 902(a)(5), 1382, 
1382c, 1382h, 1383(a), (c), and (d)(1), and 1383b); secs. 4(c) and 5, 
6(c)-(e), 14(a) and 15, Pub. L. 98-460, 98 Stat. 1794, 1801, 1802, and 
1808 (42 U.S.C. 421 note, 423 note, 1382h note).

    Source:  45 FR 55621, Aug. 20, 1980, unless otherwise noted.

                                 General



Sec. 416.901  Scope of subpart.

    In order for you to become entitled to any benefits based upon 
disability or blindness you must be disabled or blind as defined in 
title XVI of the Social Security Act. This subpart explains how we 
determine whether you are disabled or blind. We have organized the rules 
in the following way.

[[Page 697]]

    (a) We define general terms, then discuss who makes our disability 
or blindness determinations and state that disability and blindness 
determinations made under other programs are not binding on our 
determinations.
    (b) We explain the term disability and note some of the major 
factors that are considered in determining whether you are disabled in 
Secs. 416.905 through 416.910.
    (c) Sections 416.912 through 416.918 contain our rules on evidence. 
We explain your responsibilities for submitting evidence of your 
impairment, state what we consider to be acceptable sources of medical 
evidence, and describe what information should be included in medical 
reports.
    (d) Our general rules on evaluating disability for adults filing new 
applications are stated in Secs. 416.920 through 416.923. We describe 
the steps that we go through and the order in which they are considered.
    (e) Our general rules on evaluating disability for children filing 
new applications are stated in Sec. 416.924.
    (f) Our rules on medical considerations are found in Secs. 416.925 
through 416.930. We explain in these rules--
    (1) The purpose and use of the Listing of Impairments found in 
appendix 1 of subpart P of part 404 of this chapter;
    (2) What we mean by the terms medical equivalence and functional 
equivalence and how we determine medical equivalence (and functional 
equivalence if you are a child);
    (3) The effect of a conclusion by your physician that you are 
disabled;
    (4) What we mean by symptoms, signs, and laboratory findings;
    (5) How we evaluate pain and other symptoms; and
    (6) The effect on your benefits if you fail to follow treatment that 
is expected to restore your ability to work or, if you are a child, to 
reduce your functional limitations to the point that they are no longer 
marked and severe, and how we apply the rule in Sec. 416.930.
    (g) In Secs. 416.931 through 416.934 we explain that we may make 
payments on the basis of presumptive disability or presumptive 
blindness.
    (h) In Secs. 416.935 through 416.939 we explain the rules which 
apply in cases of drug addiction and alcoholism.
    (i) In Secs. 416.945 through 416.946 we explain what we mean by the 
term residual functional capacity, state when an assessment of residual 
functional capacity is required, and who may make it.
    (j) Our rules on vocational considerations are found in 
Secs. 416.960 through 416.969a. We explain when vocational factors must 
be considered along with the medical evidence, discuss the role of 
residual functional capacity in evaluating your ability to work, discuss 
the vocational factors of age, education, and work experience, describe 
what we mean by work which exists in the national economy, discuss the 
amount of exertion and the type of skill required for work, describe how 
the Guidelines in appendix 2 of subpart P of part 404 of this chapter 
apply to claims under part 416, and explain when, for purposes of 
applying the Guidelines in appendix 2, we consider the limitations or 
restrictions imposed by your impairment(s) and related symptoms to be 
exertional, nonexertional, or a combination of both.
    (k) Our rules on substantial gainful activity are found in 
Secs. 416.971 through 416.974. These explain what we mean by substantial 
gainful activity and how we evaluate your work activity.
    (l) In Secs. 416.981 through 416.985 we discuss blindness.
    (m) Our rules on when disability or blindness continues and stops 
are contained in Secs. 416.986 and 416.988 through 416.998. We explain 
what your responsibilities are in telling us of any events that may 
cause a change in your disability or blindness status, when you may have 
a trial work period, and when we will review to see if you are still 
disabled. We also explain how we consider the issue of medical 
improvement (and the exceptions to medical improvement) in determining 
whether you are still disabled.

[45 FR 55621, Aug. 20, 1980, as amended at 50 FR 50136, Dec. 6, 1985; 56 
FR 5553, Feb. 11, 1991; 56 FR 57944, Nov. 14, 1991; 62 FR 6420, Feb. 11, 
1997]

    Effective Date Note:  At 62 FR 6420, Feb. 11, 1997, in Sec. 416.901, 
paragraphs (e) and (f) (2) and (6) were revised, effective Apr. 14, 
1997. For the convenience of the user, the superseded text is set forth 
as follows:

[[Page 698]]

Sec. 416.901  Scope of subpart

                                * * * * *

    (e) Our general rules on evaluating disability for children filing 
new applications are stated in Secs. 416.924 through 416.924e.
    (f) * * *

                                * * * * *

    (2) What we mean by the term medical equivalence and how we 
determine medical equivalence;

                                * * * * *

    (6) The effect on your benefits if you fail to follow treatment that 
is expected to restore your ability to work, and how we apply the rule.

                                * * * * *



Sec. 416.902  General definitions and terms for this subpart.

    As used in this subpart--
    Adult means a person who is age 18 or older.
    Child means a person who has not attained age 18.
    Commissioner means the Commissioner of Social Security.
    Disability redetermination means a redetermination of your 
eligibility based on disability using the rules for new applicants 
appropriate to your age, except the rules pertaining to performance of 
substantial gainful activity. For individuals who are working and for 
whom a disability redetermination is required, we will apply the rules 
in Secs. 416.260 ff. In conducting a disability redetermination, we will 
not use the rules for determining whether disability continues set forth 
in Sec. 416.994 or Sec. 416.994a. (See Sec. 416.987.)
    Impairment(s) means a medically determinable physical or mental 
impairment or a combination of medically determinable physical or mental 
impairments.
    Marked and severe functional limitations, when used as a phrase, 
means the standard of disability in the Social Security Act for children 
claiming SSI benefits based on disability and is a level of severity 
that meets or medically or functionally equals the severity of a listing 
in the Listing of Impairments in appendix 1 of subpart P of part 404 
(the Listing). See Secs. 416.906, 416.924, and 416.926a. The words 
``marked'' and ``severe'' are also separate terms used throughout this 
subpart to describe measures of functional limitations; the term 
``marked'' is also used in the listings. See Secs. 416.924 and 416.926a. 
The meaning of the words ``marked'' and ``severe'' when used as part of 
the term marked and severe functional limitations is not the same as the 
meaning of the separate terms ``marked'' and ``severe'' used elsewhere 
in 20 CFR 404 and 416. (See Secs. 416.924(c) and 416.926a(c).)
    Medical sources refers to treating sources, sources of record, and 
consultative examiners for us. See Sec. 416.913.
    Secretary means the Secretary of Health and Human Services.
    Source of record means a hospital, clinic or other source that has 
provided you with medical treatment or evaluation, as well as a 
physician or psychologist who has treated or evaluated you but does not 
have or did not have an ongoing treatment relationship with you.
    State agency means that agency of a State which has been designated 
by the State to carry out the disability or blindness determination 
function.
    Treating source means your own physician or psychologist who has 
provided you with medical treatment or evaluation and who has or has had 
an ongoing treatment relationship with you. Generally, we will consider 
that you have an ongoing treatment relationship with a physician or 
psychologist when the medical evidence establishes that you see or have 
seen the physician or psychologist with a frequency consistent with 
accepted medical practice for the type of treatment and evaluation 
required for your medical condition(s). We may consider a physician or 
psychologist who has treated you only a few times or only after long 
intervals (e.g., twice a year) to be your treating source if the nature 
and frequency of the treatment is typical for your condition(s). We will 
not consider a physician or psychologist to be your treating physician 
if your relationship with the physician or psychologist is not based on 
your need for treatment, but solely on your need to obtain a report in 
support of your claim for benefits. In

[[Page 699]]

such a case, we will consider the physician or psychologist to be a 
consulting physician or psychologist.
    We or us refers to either the Social Security Administration or the 
State agency making the disability or blindness determination.
    You refers to the person who has applied for or is receiving 
benefits based on disability or blindness.

[56 FR 36962, Aug. 1, 1991, as amended at 58 FR 47577, Sept. 9, 1993; 62 
FR 6420, Feb. 11, 1997; 62 FR 13733, Mar. 21, 1997]

    Effective Date Note 1:  At 62 FR 6420, Feb. 11, 1997, Sec. 416.902 
was amended by adding four new definitions between the definitions for 
Child and Medical sources, effective Apr. 14, 1997.

    Effective Date Note 2: At 62 FR 13733, Mar. 21, 1997, in 
Sec. 416.902, the word ``Marked'' in the definition Marked and severe 
functional limitations was corrected to read ``marked'', effective Apr. 
14, 1997.

                             Determinations



Sec. 416.903  Who makes disability and blindness determinations.

    (a) State agencies. State agencies make disability and blindness 
determinations for the Secretary for most persons living in the State. 
State agencies make these disability and blindness determinations under 
regulations containing performance standards and other administrative 
requirements relating to the disability and blindness determination 
function. States have the option of turning the function over to the 
Federal Government if they no longer want to make disability 
determinations. Also, the Secretary may take the function away from any 
State which has substantially failed to make disability and blindness 
determinations in accordance with these regulations. Subpart J of this 
part contains the rules the States must follow in making disability and 
blindness determinations.
    (b) Social Security Administration. The Social Security 
Administration will make disability and blindness determinations for the 
Secretary for--
    (1) Any person living in a State which is not making for the 
Secretary any disability and blindness determinations or which is not 
making those determinations for the class of claimants to which that 
person belongs; and
    (2) Any person living outside the United States.
    (c) What determinations are authorized. The Secretary has authorized 
the State agencies and the Social Security Administration to make 
determinations about--
    (1) Whether you are disabled or blind;
    (2) The date your disability or blindness began; and
    (3) The date your disability or blindness stopped.
    (d) Review of State agency determinations. On review of a State 
agency determination or redetermination of disability or blindness we 
may find that--
    (1) You are, or are not, disabled or blind, regardless of what the 
State agency found;
    (2) Your disability or blindness began earlier or later than the 
date found by the State agency; and
    (3) Your disability or blindness stopped earlier or later than the 
date found by the State agency.
    (e) Initial determinations for mental impairments. An initial 
determination by a State agency or the Social Security Administration 
that you are not disabled (or a Social Security Administration review of 
a State agency's initial determination), in any case where there is 
evidence which indicates the existence of a mental impairment, will be 
made only after every reasonable effort has been made to ensure that a 
qualified psychiatrist or psychologist has completed the medical portion 
of the case review and any applicable residual functional capacity 
assessment. (See Sec. 416.1016 for the qualifications we consider 
necessary for a psychologist to be a psychological consultant and 
Sec. 416.1017 for what we consider reasonable effort.) If the services 
of qualified psychiatrists or psychologists cannot be obtained because 
of impediments at the State level, the Secretary may contract directly 
for the services. In a case where there is evidence of mental and 
nonmental impairments and a qualified psychologist serves as a 
psychological consultant, the psychologist will evaluate only the mental 
impairment, and a physician will evaluate the nonmental impairment. The 
overall determination of impairment severity in combined

[[Page 700]]

mental and nonmental impairment cases will be made by a medical 
consultant other than a qualified psychologist unless the mental 
impairment alone would justify a finding of disability.
    (f) Determinations for childhood impairments. In making a 
determination under title XVI with respect to the disability of a child 
to whom paragraph (e) of this section does not apply, we will make 
reasonable efforts to ensure that a qualified pediatrician or other 
individual who specializes in a field of medicine appropriate to the 
child's impairment(s) evaluates the case of the child.

[46 FR 29211, May 29, 1981, as amended at 52 FR 33927, Sept. 9, 1987; 58 
FR 47577, Sept. 9, 1993]



Sec. 416.903a  Program integrity.

    We will not use in our program any individual or entity, except to 
provide existing medical evidence, who is currently excluded, suspended, 
or otherwise barred from participation in the Medicare or Medicaid 
programs, or any other Federal or Federally-assisted program; whose 
license to provide health care services is currently revoked or 
suspended by any State licensing authority pursuant to adequate due 
process procedures for reasons bearing on professional competence, 
professional conduct, or financial integrity; or who until a final 
determination is made has surrendered such a license while formal 
disciplinary proceedings involving professional conduct are pending. By 
individual or entity we mean a medical or psychological consultant, 
consultative examination provider, or diagnostic test facility. Also see 
Secs. 416.919 and 416.919g(b).

[56 FR 36963, Aug. 1, 1991]



Sec. 416.904  Determinations by other organizations and agencies.

    A decision by any nongovernmental agency or any other governmental 
agency about whether you are disabled or blind is based on its rules and 
is not our decision about whether you are disabled or blind. We must 
make a disability or blindness determination based on social security 
law. Therefore, a determination made by another agency that you are 
disabled or blind is not binding on us.

                        Definition of Disability



Sec. 416.905  Basic definition of disability for adults.

    (a) The law defines disability as the inability to do any 
substantial gainful activity by reason of any medically determinable 
physical or mental impairment which can be expected to result in death 
or which has lasted or can be expected to last for a continuous period 
of not less than 12 months. To meet this definition, you must have a 
severe impairment, which makes you unable to do your previous work or 
any other substantial gainful activity which exists in the national 
economy. To determine whether you are able to do any other work, we 
consider your residual functional capacity and your age, education, and 
work experience (see Sec. 416.920).
    (b) There are different rules for determining disability for 
individuals who are statutorily blind. We discuss these in Secs. 416.981 
through 416.985.

[45 FR 55621, Aug. 20, 1980, as amended at 56 FR 5553, Feb. 11, 1991]



Sec. 416.906  Basic definition of disability for children.

    If you are under age 18, we will consider you disabled if you have a 
medically determinable physical or mental impairment or combination of 
impairments that causes marked and severe functional limitations, and 
that can be expected to cause death or that has lasted or can be 
expected to last for a continuous period of not less than 12 months. 
Notwithstanding the preceding sentence, if you file a new application 
for benefits and you are engaging in substantial gainful activity, we 
will not consider you disabled. We discuss our rules for determining 
disability in children who file new applications in Secs. 416.924 
through 416.924c and Secs. 416.925 through 416.926a.

[62 FR 6421, Feb. 11, 1997]

    Effective Date Note:  At 62 FR 6421, Feb. 11, 1997, Sec. 416.906 was 
revised, effective Apr. 14, 1997. For the convenience of the user, the 
superseded text is set forth as follows:

[[Page 701]]

Sec. 416.906  Basic definition of disability for children.

    If you are under age 18, we will consider you disabled if you are 
suffering from any medically determinable physical or mental impairment 
which compares in severity to an impairment that would make an adult (a 
person over age 18) disabled. We discuss our rules for determining 
disability in children in Secs. 416.924, and 416.924a through 416.924e.

[45 FR 55621, Aug. 20, 1980, as amended at 56 FR 5553, Feb. 11, 1991]



Sec. 416.907  Disability under a State plan.

    You will also be considered disabled for payment of supplemental 
security income benefits if--
    (a) You were found to be permanently and totally disabled as defined 
under a State plan approved under title XIV or XVI of the Social 
Security Act, as in effect for October 1972;
    (b) You received aid under the State plan because of your disability 
for the month of December 1973 and for at least one month before July 
1973; and
    (c) You continue to be disabled as defined under the State plan.



Sec. 416.908  What is needed to show an impairment.

    If you are not doing substantial gainful activity, we always look 
first at your physical or mental impairment(s) to determine whether you 
are disabled or blind. Your impairment must result from anatomical, 
physiological, or psychological abnormalities which can be shown by 
medically acceptable clinical and laboratory diagnostic techniques. A 
physical or mental impairment must be established by medical evidence 
consisting of signs, symptoms, and laboratory findings, not only by your 
statement of symptoms (see Sec. 416.927). (See Sec. 416.928 for further 
information about what we mean by symptoms, signs, and laboratory 
findings.)

[45 FR 55621, Aug. 20, 1980, as amended at 56 FR 36963, Aug. 1, 1991]



Sec. 416.909  How long the impairment must last.

    Unless your impairment is expected to result in death, it must have 
lasted or must be expected to last for a continuous period of at least 
12 months. We call this the duration requirement.



Sec. 416.910  Meaning of substantial gainful activity.

    Substantial gainful activity means work that--
    (a) Involves doing significant and productive physical or mental 
duties; and
    (b) Is done (or intended) for pay or profit.

(See Sec. 416.972 for further details about what we mean by substantial 
gainful activity.)



Sec. 416.911  Definition of disabling impairment.

    (a) If you are an adult:
    (1) A disabling impairment is an impairment (or combination of 
impairments) which, of itself, is so severe that it meets or equals a 
set of criteria in the Listing of Impairments in appendix 1 of subpart P 
of part 404 of this chapter or which, when considered with your age, 
education and work experience, would result in a finding that you are 
disabled under Sec. 416.994, unless the disability redetermination rules 
in Sec. 416.987(b) apply to you.
    (2) If the disability redetermination rules in Sec. 416.987 apply to 
you, a disabling impairment is an impairment or combination of 
impairments that meets the requirements in Secs. 416.920(c) through (f).
    (b) If you are a child, a disabling impairment is an impairment (or 
combination of impairments) that causes marked and severe functional 
limitations. This means that the impairment or combination of 
impairments:
    (1) Must meet or medically or functionally equal the requirements of 
a listing in the Listing of Impairments in appendix 1 of subpart P of 
part 404 of this chapter, or
    (2) Would result in a finding that you are disabled under 
Sec. 416.994a.
    (c) In determining whether you have a disabling impairment, earnings 
are not considered.

[62 FR 6421, Feb. 11, 1997]

    Effective Date Note:  At 62 FR 6421, Feb. 11, 1997, Sec. 416.911 was 
revised, effective Apr. 14, 1997. For the convenience of the user, the 
superseded text is set forth as follows:

[[Page 702]]

Sec. 416.911  Definition of disabling impairment.

    A disabling impairment is an impairment (or combination of 
impairments) which, of itself, is so severe that it meets or equals a 
set of criteria in the Listing of Impairments in appendix 1 of subpart P 
of part 404 of this chapter or which, when considered with your age, 
education and work experience, would result in a finding that you are 
disabled under Sec. 416.994. In determining whether you have a disabling 
impairment, earnings are not considered.

[50 FR 50137, Dec. 6, 1985]

                                Evidence



Sec. 416.912  Evidence of your impairment.

    (a) General. In general, you have to prove to us that you are blind 
or disabled. This means that you must furnish medical and other evidence 
that we can use to reach conclusions about your medical impairment(s). 
If material to the determination whether you are blind or disabled, 
medical and other evidence must be furnished about the effects of your 
impairment(s) on your ability to work, or if you are a child, on your 
functioning, on a sustained basis. We will consider only impairment(s) 
you say you have or about which we receive evidence.
    (b) What we mean by ``evidence.'' Evidence is anything you or anyone 
else submits to us or that we obtain that relates to your claim. This 
includes, but is not limited to:
    (1) Objective medical evidence, that is, medical signs and 
laboratory findings as defined in Sec. 416.928 (b) and (c);
    (2) Other evidence from medical sources, such as medical history, 
opinions, and statements about treatment you have received;
    (3) Statements you or others make about your impairment(s), your 
restrictions, your daily activities, your efforts to work, or any other 
relevant statements you make to medical sources during the course of 
examination or treatment, or to us during interviews, on applications, 
in letters, and in testimony in our administrative proceedings;
    (4) Information from other sources, as described in Sec. 416.913(e);
    (5) Decisions by any governmental or nongovernmental agency about 
whether you are disabled or blind; and
    (6) At the administrative law judge and Appeals Council levels, 
certain findings, other than the ultimate determination about whether 
you are disabled, made by State agency medical or psychological 
consultants and other program physicians or psychologists, and opinions 
expressed by medical advisors based on their review of the evidence in 
your case record. See Sec. 416.927(f) (2) and (3).
    (c) Your responsibility. You must provide medical evidence showing 
that you have an impairment(s) and how severe it is during the time you 
say that you are disabled. If we ask you, you must also provide evidence 
about:
    (1) Your age;
    (2) Your education and training;
    (3) Your work experience;
    (4) Your daily activities both before and after the date you say 
that you became disabled;
    (5) Your efforts to work; and
    (6) Any other factors showing how your impairment(s) affects your 
ability to work, or, if you are a child, your functioning. In 
Secs. 416.960 through 416.969, we discuss in more detail the evidence we 
need when we consider vocational factors.
    (d) Our responsibility. Before we make a determination that you are 
not disabled, we will develop your complete medical history for at least 
the 12 months preceding the month in which you file your application 
unless there is a reason to believe that development of an earlier 
period is necessary or unless you say that your disability began less 
than 12 months before you filed your application. We will make every 
reasonable effort to help you get medical reports from your own medical 
sources when you give us permission to request the reports.
    (1) ``Every reasonable effort'' means that we will make an initial 
request for evidence from your medical source and, at any time between 
10 and 20 calendar days after the initial request, if the evidence has 
not been received, we will make one followup request to obtain the 
medical evidence necessary to make a determination. The medical

[[Page 703]]

source will have a minimum of 10 calendar days from the date of our 
followup request to reply, unless our experience with that source 
indicates that a longer period is advisable in a particular case.
    (2) By ``complete medical history,'' we mean the records of your 
medical source(s) covering at least the 12 months preceding the month in 
which you file your application. If you say that your disability began 
less than 12 months before you filed your application, we will develop 
your complete medical history beginning with the month you say your 
disability began unless we have reason to believe that your disability 
began earlier.
    (e) Recontacting medical sources. When the evidence we receive from 
your treating physician or psychologist or other medical source is 
inadequate for us to determine whether you are disabled, we will need 
additional information to reach a determination or a decision. To obtain 
the information, we will take the following actions.
    (1) We will first recontact your treating physician or psychologist 
or other medical source to determine whether the additional information 
we need is readily available. We will seek additional evidence or 
clarification from your medical source when the report from your medical 
source contains a conflict or ambiguity that must be resolved, the 
report does not contain all the necessary information, or does not 
appear to be based on medically acceptable clinical and laboratory 
diagnostic techniques. We may do this by requesting copies of your 
medical source's records, a new report, or a more detailed report from 
your medical source, including your treating source, or by telephoning 
your medical source. In every instance where medical evidence is 
obtained over the telephone, the telephone report will be sent to the 
source for review, signature and return.
    (2) We may not seek additional evidence or clarification from a 
medical source when we know from past experience that the source either 
cannot or will not provide the necessary findings.
    (f) Need for consultative examination. If the information we need is 
not readily available from the records of your medical treatment source, 
or we are unable to seek clarification from your medical source, we will 
ask you to attend one or more consultative examinations at our expense. 
See Secs. 416.917 through 416.919t for the rules governing the 
consultative examination process. Generally, we will not request a 
consultative examination until we have made every reasonable effort to 
obtain evidence from your own medical sources. However, in some 
instances, such as when a source is known to be unable to provide 
certain tests or procedures or is known to be nonproductive or 
uncooperative, we may order a consultative examination while awaiting 
receipt of medical source evidence. We will not evaluate this evidence 
until we have made every reasonable effort to obtain evidence from your 
medical sources.

[56 FR 36963, Aug. 1, 1991, as amended at 62 FR 6421, Feb. 11, 1997]

    Effective Date Note:  At 62 FR 6421, Feb. 11, 1997, in Sec. 416.912, 
paragraphs (a) and (c)(6) were revised, effective Apr. 14, 1997. For the 
convenience of the user, the superseded text is set forth as follows:

Sec.   Evidence of your impairment.

    (a) General. In general, you have to prove to us that you are blind 
or disabled. Therefore, you must bring to our attention everything that 
shows that you are blind or disabled. This means that you must furnish 
medical and other evidence that we can use to reach conclusions about 
your medical impairment(s) and, if material to the determination of 
whether you are blind or disabled, its effect on your ability to work on 
a sustained basis. We will consider only impairment(s) you say you have 
or about which we receive evidence.

                                * * * * *

    (c) * * *
    (6) Any other factors showing how your impairment(s) affects your 
ability to work. In Secs. 416.960 through 416.969, we discuss in more 
detail the evidence we need when we consider vocational factors.

                                * * * * *



Sec. 416.913  Medical evidence of your impairment.

    (a) Acceptable sources. We need reports about your impairments from 
acceptable medical sources. Acceptable medical sources are--

[[Page 704]]

    (1) Licensed physicians;
    (2) Licensed osteopaths;
    (3) Licensed or certified psychologists;
    (4) Licensed optometrists for the measurement of visual acuity and 
visual fields (see paragraph (f) of this section for the evidence needed 
for statutory blindness); and
    (5) Persons authorized to send us a copy or summary of the medical 
records of a hospital, clinic, sanitorium, medical institution, or 
health care facility. Generally, the copy or summary should be certified 
as accurate by the custodian or by any authorized employee of the Social 
Security Administration, Veterans' Administration, or State agency. 
However, we will not return an uncertified copy or summary for 
certification unless there is some question about the document.
    (6) A report of an interdisciplinary team that contains the 
evaluation and signature of an acceptable medical source is also 
considered acceptable medical evidence.
    (b) Medical reports. Medical reports should include--
    (1) Medical history;
    (2) Clinical findings (such as the results of physical or mental 
status examinations);
    (3) Laboratory findings (such as blood pressure, X-rays);
    (4) Diagnosis (statement of disease or injury based on its signs and 
symptoms);
    (5) Treatment prescribed with response, and prognosis; and
    (6) A statement about what you can still do despite your 
impairment(s) based on the medical source's findings on the factors 
under paragraphs (b)(1) through (b)(5) of this section (except in 
statutory blindness claims). Although we will request a medical source 
statement about what you can still do despite your impairment(s), the 
lack of the medical source statement will not make the report 
incomplete. See Sec. 416.927.
    (c) Statements about what you can still do. Statements about what 
you can still do (based on the medical source's findings on the factors 
under paragraphs (b)(1) through (b)(5) of this section) should describe, 
but are not limited to, the kinds of physical and mental capabilities 
listed below. See Secs. 416.927 and 416.945(c).
    (1) The medical source's opinion about your ability, despite your 
impairment(s), to do work-related activities such as sitting, standing, 
walking, lifting, carrying, handling objects, hearing, speaking, and 
traveling; and
    (2) In cases of mental impairment(s), the medical source's opinion 
about your ability to understand, to carry out and remember 
instructions, and to respond appropriately to supervision, coworkers, 
and work pressures in a work setting.
    (3) If you are a child, the medical source's opinion about your 
functional limitations in learning, motor functioning, performing self-
care activities, communicating, socializing, and completing tasks (and, 
if you are a newborn or young infant from birth to age 1, responsiveness 
to stimuli).
    (d) Completeness. The medical evidence, including the clinical and 
laboratory findings, must be complete and detailed enough to allow us to 
make a determination about whether you are disabled or blind. It must 
allow us to determine--
    (1) The nature and limiting effects of your impairment(s) for any 
period in question;
    (2) The probable duration of your impairment; and
    (3) Your residual functional capacity to do work-related physical 
and mental activities.
    (e) Information from other sources. Information from other sources 
may also help us to understand how your impairment(s) affects your 
ability to work or, if you are a child, your ability to function 
independently, appropriately, and effectively in an age-appropriate 
manner. Other sources may include, and are not limited to--
    (1) Public and private social welfare agencies and social workers;
    (2) Observations by people who know you (for example, spouses, 
parents and other caregivers, siblings, other relatives, friends or 
neighbors, clergy);
    (3) Other practitioners (for example, nurse practitioners and 
physicians' assistants, naturopaths, and chiropractors);

[[Page 705]]

    (4) Therapists (for example, physical, occupational, or speech and 
language therapists); and
    (5) Educational agencies and personnel (for example, school 
teachers, school psychologists who are not acceptable medical sources 
under paragraph (a), school counselors, preschools, early intervention 
teams, developmental centers, and daycare centers).
    (f) Evidence we need to establish statutory blindness. If you are 
applying for benefits on the basis of statutory blindness, we will 
require an examination by a physician skilled in diseases of the eye or 
by an optometrist, whichever you may select.

[45 FR 55621, Aug. 20, 1980, as amended at 56 FR 5553, Feb. 11, 1991; 56 
FR 36964, Aug. 1, 1991; 58 FR 47577, Sept. 9, 1993; 62 FR 6421, Feb. 11, 
1997]

    Effective Date Note:  At 62 FR 6421, Feb. 11, 1997, in Sec. 416.913, 
paragraph (c)(3) was revised, effective Apr. 14, 1997. For the 
convenience of the user, the superseded text is set forth as follows:

Sec. 416.913  Medical evidence of your impairment.

                                * * * * *

    (c) * * *
    (3) If you are a child, the medical source's opinion about your 
physical or mental abilities to function independently, appropriately, 
and effectively in an age-appropriate manner, as described in 
Sec. 416.924d.

                                * * * * *



Sec. 416.914  When we will purchase existing evidence.

    We need specific medical evidence to determine whether you are 
disabled or blind. We will pay for the medical evidence we request, if 
there is a charge. We will also be responsible for the cost of medical 
evidence we ask you to get.



Sec. 416.915  Where and how to submit evidence.

    You may give us evidence about your impairment at any of our offices 
or at the office of any State agency authorized to make disability or 
blindness determinations. You may also give evidence to one of our 
employees authorized to accept evidence at another place. For more 
information about this, see subpart C of this part.



Sec. 416.916  If you fail to submit medical and other evidence.

    You (and if you are a child, your parent, guardian, relative, or 
other person acting on your behalf) must co-operate in furnishing us 
with, or in helping us to obtain or identify, available medical or other 
evidence about your impairment(s). When you fail to cooperate with us in 
obtaining evidence, we will have to make a decision based on information 
available in your case. We will not excuse you from giving us evidence 
because you have religious or personal reasons against medical 
examinations, tests, or treatment.

[58 FR 47577, Sept. 9, 1993]



Sec. 416.917  Consultative examination at our expense.

    If your medical sources cannot or will not give us sufficient 
medical evidence about your impairment for us to determine whether you 
are disabled or blind, we may ask you to have one or more physical or 
mental examinations or tests. We will pay for these examinations. 
However, we will not pay for any medical examination arranged by you or 
your representative without our advance approval. If we arrange for the 
examination or test, we will give you reasonable notice of the date, 
time, and place the examination or test will be given, and the name of 
the person or facility who will do it. We will also give the examiner 
any necessary background information about your condition.

[56 FR 36964, Aug. 1, 1991]



Sec. 416.918  If you do not appear at a consultative examination.

    (a) General. If you are applying for benefits and do not have a good 
reason for failing or refusing to take part in a consultative 
examination or test which we arrange for you to get information we need 
to determine your disability or blindness, we may find that you are not 
disabled or blind. If you are already receiving benefits and do not have 
a good reason for failing or refusing to take part in a consultative 
examination or test which we arranged for you,

[[Page 706]]

we may determine that your disability or blindness has stopped because 
of your failure or refusal. Therefore, if you have any reason why you 
cannot go for the scheduled appointment, you should tell us about this 
as soon as possible before the examination date. If you have a good 
reason, we will schedule another examination. We will consider your 
physical, mental, educational, and linguistic limitations (including any 
lack of facility with the English language) when determining if you have 
a good reason for failing to attend a consultative examination.
    (b) Examples of good reasons for failure to appear. Some examples of 
what we consider good reasons for not going to a scheduled examination 
include--
    (1) Illness on the date of the scheduled examination or test;
    (2) Not receiving timely notice of the scheduled examination or 
test, or receiving no notice at all;
    (3) Being furnished incorrect or incomplete information, or being 
given incorrect information about the physician involved or the time or 
place of the examination or test, or;
    (4) Having had death or serious illness occur in your immediate 
family.
    (c) Objections by your physician. If any of your treating physicians 
tell you that you should not take the examination or test, you should 
tell us at once. In many cases, we may be able to get the information we 
need in another way. Your physician may agree to another type of 
examination for the same purpose.

[45 FR 55621, Aug. 20, 1980, as amended at 59 FR 1636, Jan. 12, 1994]

Standards To Be Used in Determining When a Consultative Examination Will 
        Be Obtained in Connection With Disability Determinations



Sec. 416.919  The consultative examination.

    A consultative examination is a physical or mental examination or 
test purchased for you at our request and expense from a treating 
physician or psychologist, another source of record, or an independent 
source, including a pediatrician when appropriate. The decision to 
purchase a consultative examination will be made on an individual case 
basis in accordance with the provisions of Sec. 416.919a through 
Sec. 416.919f. Selection of the source for the examination will be 
consistent with the provisions of Sec. 416.903a and Secs. 416.919g 
through 416.919j. The rules and procedures for requesting consultative 
examinations set forth in Secs. 416.919a and 416.919b are applicable at 
the reconsideration and hearing levels of review, as well as the initial 
level of determination.

[56 FR 36964, Aug. 1, 1991]



Sec. 416.919a  When we will purchase a consultative examination and how we will use it.

    (a)(1) General. The decision to purchase a consultative examination 
for you will be made after we have given full consideration to whether 
the additional information needed (e.g., clinical findings, laboratory 
tests, diagnosis, and prognosis) is readily available from the records 
of your medical sources. See Sec. 416.912 for the procedures we will 
follow to obtain evidence from your medical sources. Before purchasing a 
consultative examination, we will consider not only existing medical 
reports, but also the disability interview form containing your 
allegations as well as other pertinent evidence in your file.
    (2) When we purchase a consultative examination, we will use the 
report from the consultative examination to try to resolve a conflict or 
ambiguity if one exists. We will also use a consultative examination to 
secure needed medical evidence the file does not contain such as 
clinical findings, laboratory tests, a diagnosis or prognosis necessary 
for decision.
    (b) Situations requiring a consultative examination. A consultative 
examination may be purchased when the evidence as a whole, both medical 
and nonmedical, is not sufficient to support a decision on your claim. 
Other situations, including but not limited to the situations listed 
below, will normally require a consultative examination:
    (1) The additional evidence needed is not contained in the records 
of your medical sources;
    (2) The evidence that may have been available from your treating or 
other

[[Page 707]]

medical sources cannot be obtained for reasons beyond your control, such 
as death or noncooperation of a medical source;
    (3) Highly technical or specialized medical evidence that we need is 
not available from your treating or other medical sources;
    (4) A conflict, inconsistency, ambiguity or insufficiency in the 
evidence must be resolved, and we are unable to do so by recontacting 
your medical source; or
    (5) There is an indication of a change in your condition that is 
likely to affect your ability to work, or, if you are a child, your 
functioning, but the current severity of your impairment is not 
established.

[56 FR 36964, Aug. 1, 1991, as amended at 62 FR 6421, Feb. 11, 1997]

    Effective Date Note:  At 62 FR 6421, Feb. 11, 1997, in 
Sec. 416.919a, paragraph(b)(5) was revised, effective Apr. 14, 1997. For 
the convenience of the user, the superseded text is set forth as 
follows:

Sec. 416.919a  When we will purchase a consultative examination and how 
          we will use it.

                                * * * * *

    (b) * * *
    (5) There is an indication of a change in your condition that is 
likely to affect your ability to work, but the current severity of your 
impairment is not established.



Sec. 416.919b  When we will not purchase a consultative examination.

    We will not purchase a consultative examination in situations 
including, but not limited to, the following situations:
    (a) When any issues about your actual performance of substantial 
gainful activity have not been resolved;
    (b) When you do not meet all of the nondisability requirements.

[56 FR 36965, Aug. 1, 1991]

        Standards for the Type of Referral and for Report Content



Sec. 416.919f  Type of purchased examinations.

    We will purchase only the specific examinations and tests we need to 
make a determination in your claim. For example, we will not authorize a 
comprehensive medical examination when the only evidence we need is a 
special test, such as an X-ray, blood studies, or an electrocardiogram.

[56 FR 36965, Aug. 1, 1991]



Sec. 416.919g  Who we will select to perform a consultative examination.

    (a) We will purchase a consultative examination only from a 
qualified medical source. The medical source may be your own physician 
or psychologist, or another source. If you are a child, the medical 
source we choose may be a pediatrician. For a more complete list of 
medical sources, see Sec. 416.913(a).
    (b) By ``qualified,'' we mean that the medical source must be 
currently licensed in the State and have the training and experience to 
perform the type of examination or test we will request; the medical 
source must not be barred from participation in our programs under the 
provisions of Sec. 416.903a. The medical source must also have the 
equipment required to provide an adequate assessment and record of the 
existence and level of severity of your alleged impairments.
    (c) The physician or psychologist we choose may use support staff to 
help perform the consultative examination. Any such support staff (e.g., 
X-ray technician, nurse) must meet appropriate licensing or 
certification requirements of the State. See Sec. 416.903a.

[56 FR 36965, Aug. 1, 1991]



Sec. 416.919h  Your treating physician or psychologist.

    When in our judgment your treating physician or psychologist is 
qualified, equipped, and willing to perform the additional examination 
or tests for the fee schedule payment, and generally furnishes complete 
and timely reports, your treating physician or psychologist will be the 
preferred source to do the purchased examination. Even if only a 
supplemental test is required, your treating physician or psychologist 
is ordinarily the preferred source.

[56 FR 36965, Aug. 1, 1991]

[[Page 708]]



Sec. 416.919i  Other sources for consultative examinations.

    We will use a source other than your treating physician or 
psychologist for a purchased examination or test in situations 
including, but not limited to, the following situations:
    (a) Your treating physician or psychologist prefers not to perform 
such an examination or does not have the equipment to provide the 
specific data needed;
    (b) There are conflicts or inconsistencies in your file which cannot 
be resolved by going back to your treating physician or psychologist;
    (c) You prefer a source other than your treating physician or 
psychologist and have a good reason for your preference;
    (d) We know from prior experience that your treating physician or 
psychologist may not be a productive source, e.g., he or she has 
consistently failed to provide complete or timely reports.

[56 FR 36965, Aug. 1, 1991]



Sec. 416.919j  Objections to the designated physician or psychologist.

    You or your representative may object to your being examined by a 
designated physician or psychologist. If there is a good reason for the 
objection, we will schedule the examination with another physician or 
psychologist. A good reason may be that the consultative examination 
physician or psychologist had previously represented an interest adverse 
to you. For example, the physician or psychologist may have represented 
your employer in a workers' compensation case or may have been involved 
in an insurance claim or legal action adverse to you. Other things we 
will consider include: the presence of a language barrier, the 
physician's or psychologist's office location (e.g., 2nd floor, no 
elevator), travel restrictions, and whether the physician or 
psychologist had examined you in connection with a previous disability 
determination or decision that was unfavorable to you. If your objection 
is because a physician or psychologist allegedly ``lacks objectivity'' 
in general, but not in relation to you personally, we will review the 
allegations. See Sec. 416.919s. To avoid a delay in processing your 
claim, the consultative examination in your case will be changed to 
another physician or psychologist while a review is being conducted. We 
will handle any objection to use of the substitute physician or 
psychologist in the same manner. However, if we had previously conducted 
such a review and found that the reports of the consultative physician 
or psychologist in question conformed to our guidelines, we will not 
change your examination.

[56 FR 36965, Aug. 1, 1991]



Sec. 416.919k  Purchase of medical examinations, laboratory tests, and other services.

    We may purchase medical examinations, including psychiatric and 
psychological examinations, X-rays and laboratory tests (including 
specialized tests such as pulmonary function studies, 
electrocardiograms, stress tests, etc.) from a licensed physician or 
psychologist, hospital or clinic.
    (a) The rate of payment to be used for purchasing medical or public 
services necessary to make determinations of disability may not exceed 
the highest rate paid by Federal or public agencies in the State for the 
same or similar types of service. See Secs. 416.1024 and 416.1026.
    (b) If a physician's bill, or a request for payment for a 
physician's services, includes a charge for a laboratory test for which 
payment may be made under this part, the amount payable with respect to 
the test shall be determined as follows:
    (1) If the bill or request for payment indicates that the test was 
personally performed or supervised by the physician who submitted the 
bill (or for whose services the request for payment was made) or by 
another physician with whom that physician shares his or her practice, 
the payment will be based on the physician's usual and customary charge 
for the test or the rates of payment which the State uses for purchasing 
such services, whichever is the lesser amount.
    (2) If the bill or request for payment indicates that the test was 
performed by an independent laboratory, the

[[Page 709]]

amount of reimbursement will not exceed the billed cost of the 
independent laboratory or the rate of payment which the State uses for 
purchasing such services, whichever is the lesser amount. A nominal 
payment may be made to the physician for collecting, handling and 
shipping a specimen to the laboratory if the physician bills for such a 
service. The total reimbursement may not exceed the rate of payment 
which the State uses for purchasing such services.
    (c) The State will assure that it can support the rate of payment it 
uses. The State shall also be responsible for monitoring and overseeing 
the rate of payment it uses to ensure compliance with paragraphs (a) and 
(b) of this section.

[56 FR 36965, Aug. 1, 1991]



Sec. 416.919m  Diagnostic tests or procedures.

    We will request the results of any diagnostic tests or procedures 
that have been performed as part of a workup by your treating physician 
or psychologist or other medical source and will use the results to help 
us evaluate impairment severity or prognosis. However, we will not order 
diagnostic tests or procedures that involve significant risk to you, 
such as myelograms, arteriograms, or cardiac catheterizations for the 
evaluation of disability under the Supplemental Security Income program. 
Also, a State agency medical consultant must approve the ordering of any 
diagnostic test or procedure when there is a chance it may involve 
significant risk. The responsibility for deciding whether to perform the 
examination rests with the consultative examining physician or 
psychologist.

[56 FR 36966, Aug. 1, 1991]



Sec. 416.919n  Informing the examining physician or psychologist of examination scheduling, report content, and signature requirements.

    The physicians or psychologists who perform consultative 
examinations will have a good understanding of our disability programs 
and their evidentiary requirements. They will be made fully aware of 
their responsibilities and obligations regarding confidentiality as 
described in Sec. 401.105(e). We will fully inform consulting physicians 
or psychologists at the time we first contact them, and at subsequent 
appropriate intervals, of the following obligations:
    (a) In scheduling full consultative examinations, sufficient time 
should be allowed to permit the examining physician or psychologist to 
take a case history and perform the examination, including any needed 
tests. The following minimum scheduling intervals (i.e., time set aside 
for the individual, not the actual duration of the consultative 
examination) should be used.
    (1) Comprehensive general medical examination--at least 30 minutes;
    (2) Comprehensive musculoskeletal or neurological examination--at 
least 20 minutes;
    (3) Comprehensive psychiatric examination--at least 40 minutes;
    (4) Psychological examination--at least 60 minutes (Additional time 
may be required depending on types of psychological tests administered); 
and
    (5) All others--at least 30 minutes, or in accordance with accepted 
medical practices.

We recognize that actual practice will dictate that some examinations 
may require longer scheduling intervals depending on the circumstances 
in a particular situation. We also recognize that these minimum 
intervals may have to be adjusted to allow for those claimants that do 
not attend their scheduled examination. The purpose of these minimum 
scheduling timeframes is to ensure that such examinations are complete 
and that sufficient time is made available to obtain the information 
needed to make an accurate determination in your case. State agencies 
will monitor the scheduling of examinations (through their normal 
consultative examination oversight activities) to ensure that any 
overscheduling is avoided, as overscheduling may lead to examinations 
that are not thorough.
    (b) Report content. The reported results of your medical history, 
examination, requested laboratory findings, discussions and conclusions 
must conform to accepted professional standards and practices in the 
medical field for a complete and competent examination. The facts in a 
particular case and the information and findings already

[[Page 710]]

reported in the medical and other evidence of record will dictate the 
extent of detail needed in the consultative examination report for that 
case. Thus, the detail and format for reporting the results of a 
purchased examination will vary depending upon the type of examination 
or testing requested. The reporting of information will differ from one 
type of examination to another when the requested examination relates to 
the performance of tests such as ventilatory function tests, treadmill 
exercise tests, or audiological tests. The medical report must be 
complete enough to help us determine the nature, severity, and duration 
of the impairment, and your residual functional capacity (if you are an 
adult) or your functioning (if you are a child). The report should 
reflect your statements of your symptoms, not simply the physician's or 
psychologist's statements or conclusions. The examining physician's or 
psychologist's report of the consultative examination should include the 
objective medical facts as well as observations and opinions.
    (c) Elements of a complete consultative examination. A complete 
consultative examination is one which involves all the elements of a 
standard examination in the applicable medical specialty. When the 
report of a complete consultative examination is involved, the report 
should include the following elements:
    (1) Your major or chief complaint(s);
    (2) A detailed description, within the area of specialty of the 
examination, of the history of your major complaint(s);
    (3) A description, and disposition, of pertinent ``positive'' and 
``negative'' detailed findings based on the history, examination and 
laboratory tests related to the major complaint(s), and any other 
abnormalities or lack thereof reported or found during examination or 
laboratory testing;
    (4) The results of laboratory and other tests (e.g., X-rays) 
performed according to the requirements stated in the Listing of 
Impairments (see appendix 1 of subpart P of part 404 of this chapter);
    (5) The diagnosis and prognosis for your impairment(s);
    (6) A statement about what you can still do despite your 
impairment(s), unless the claim is based on statutory blindness. If you 
are an adult, this statement should describe the opinion of the 
consultative physician or psychologist about your ability, despite your 
impairment(s), to do work-related activities such as sitting, standing, 
walking, lifting, carrying, handling objects, hearing, speaking, and 
traveling; and, in cases of mental impairment(s), the opinion of the 
consultative physician or psychologist about your ability to understand, 
to carry out and remember instructions, and to respond appropriately to 
supervision, coworkers and work pressures in a work setting. If you are 
a child, this statement should describe the opinion of the consultative 
physician or psychologist about your functional limitations in learning, 
motor functioning, performing self-care activities, communicating, 
socializing, and completing tasks (and, if you are a newborn or young 
infant from birth to age 1, responsiveness to stimuli); and
    (7) In addition, the consultative physician or psychologist will 
consider, and provide some explanation or comment on, your major 
complaint(s) and any other abnormalities found during the history and 
examination or reported from the laboratory tests. The history, 
examination, evaluation of laboratory test results, and the conclusions 
will represent the information provided by the physician or psychologist 
who signs the report.
    (d) When a complete consultative examination is not required. When 
the evidence we need does not require a complete consultative 
examination (for example, we need only a specific laboratory test result 
to complete the record), we may not require a report containing all of 
the elements in paragraph (c).
    (e) Signature requirements. All consultative examination reports 
will be personally reviewed and signed by the physician or psychologist 
who actually performed the examination. This attests to the fact that 
the physician or psychologist doing the examination or testing is solely 
responsible for the report contents and for the conclusions, 
explanations or comments provided with respect to the history, 
examination and evaluation of laboratory test

[[Page 711]]

results. The signature of the examining physician or psychologist on a 
report annotated ``not proofed'' or ``dictated but not read'' is not 
acceptable. A rubber stamp signature of a physician or psychologist or 
the physician's or psychologist's signature entered by any other person 
is not acceptable.

[56 FR 36966, Aug. 1, 1991, as amended at 62 FR 6421, Feb. 11, 1997; 62 
FR 13733, Mar. 21, 1997]

    Effective Date Note 1:  At 62 FR 6421, Feb. 11, 1997, in 
Sec. 416.919n, the fifth sentence of paragraph (b) and paragraph (c)(6) 
were revised, effective Apr. 14, 1997. For the convenience of the user, 
the superseded text is set forth as follows:

Sec. 416.919n  Informing the examining physician or psychologist of 
          examination scheduling, report content, and signature 
          requirements.

                                * * * * *

    (b) * * * The medical report must be complete enough to help us 
determine the nature, severity, and duration of the impairment, and 
residual functional capacity. * * *
    (c) * * *
    (6) A statement about what you can still do despite your 
impairment(s), unless the claim is based on statutory blindness. This 
statement should describe the opinion of the consultative physician or 
psychologist about your ability, despite your impairment(s), to do work-
related activities such as sitting, standing, walking, lifting, 
carrying, handling objects, hearing, speaking, and traveling; and, in 
cases of mental impairment(s), the opinion of the consultative physician 
or psychologist about your ability to understand, to carry out and 
remember instructions, and to respond appropriately to supervision, 
coworkers and work pressures in a work setting; and

                                * * * * *

    Effective Date Note 2: At 62 FR 13733, Mar. 21, 1997, in 
Sec. 416.919n, ``d0'' was corrected to read ``do'' in paragraph (c)(6), 
effective Apr. 14, 1997.



Sec. 416.919o  When a properly signed consultative examination report has not been received.

    If a consultative examination report is received unsigned or 
improperly signed we will take the following action.
    (a) When we will make determinations and decisions without a 
properly signed report. We will make a determination or decision in the 
circumstances specified in paragraphs (a)(1) and (a)(2) of this section 
without waiting for a properly signed consultative examination report. 
After we have made the determination or decision, we will obtain a 
properly signed report and include it in the file unless the physician 
or psychologist who performed the original consultative examination has 
died.
    (1) Continuous period of disability allowance with an onset date as 
alleged or earlier than alleged; or
    (2) Continuance of disability.
    (b) When we will not make determinations and decisions without a 
properly signed report. We will not use an unsigned or improperly signed 
consultative examination report to make the determinations or decisions 
specified in paragraphs (b)(1), (b)(2), (b)(3), and (b)(4) of this 
section. When we need a properly signed consultative examination report 
to make these determinations or decisions, we must obtain such a report. 
If the signature of the physician or psychologist who performed the 
original examination cannot be obtained because the physician or 
psychologist is out of the country for an extended period of time, on an 
extended vacation, seriously ill, deceased, or for any other reason, the 
consultative examination will be rescheduled with another physician or 
psychologist.
    (1) Denial; or
    (2) Cessation; or
    (3) Allowance of disability which has ended; or
    (4) Allowance with an onset date later than the filing date.

[56 FR 36967, Aug. 1, 1991]



Sec. 416.919p  Reviewing reports of consultative examinations.

    (a) We will review the report of the consultative examination to 
determine whether the specific information requested has been furnished. 
We will consider the following factors in reviewing the report:
    (1) Whether the report provides evidence which serves as an adequate 
basis for decisionmaking in terms of the impairment it assesses;
    (2) Whether the report is internally consistent; Whether all the 
diseases,

[[Page 712]]

impairments and complaints described in the history are adequately 
assessed and reported in the clinical findings; Whether the conclusions 
correlate the findings from your medical history, clinical examination 
and laboratory tests and explain all abnormalities;
    (3) Whether the report is consistent with the other information 
available to us within the specialty of the examination requested; 
Whether the report fails to mention an important or relevant complaint 
within that specialty that is noted in other evidence in the file (e.g., 
your blindness in one eye, amputations, pain, alcoholism, depression);
    (4) Whether this is an adequate report of examination as compared to 
standards set out in the course of a medical education; and
    (5) Whether the report is properly signed.
    (b) If the report is inadequate or incomplete, we will contact the 
examining consultative physician or psychologist, give an explanation of 
our evidentiary needs, and ask that the physician or psychologist 
furnish the missing information or prepare a revised report.
    (c) With your permission, or where the examination discloses new 
diagnostic information or test results that reveal potentially life-
threatening situations, we will refer the consultative examination 
report to your treating physician or psychologist. When we refer the 
consultative examination report to your treating physician or 
psychologist without your permission, we will notify you that we have 
done so.
    (d) We will perform ongoing special management studies on the 
quality of consultative examinations purchased from major medical 
sources and the appropriateness of the examinations authorized.
    (e) We will take steps to ensure that consultative examinations are 
scheduled only with medical sources who have access to the equipment 
required to provide an adequate assessment and record of the existence 
and level of severity of your alleged impairments.

[56 FR 36967, Aug. 1, 1991]



Sec. 416.919q  Conflict of interest.

    All implications of possible conflict of interest between medical or 
psychological consultants and their medical or psychological practices 
will be avoided. Such consultants are not only those physicians and 
psychologists who work for us directly but are also those who do review 
and adjudication work in the State agencies. Physicians and 
psychologists who work for us directly as employees or under contract 
will not work concurrently for a State agency. Physicians and 
psychologists who do review work for us will not perform consultative 
examinations for us without our prior approval. In such situations, the 
physician or psychologist will disassociate himself or herself from 
further involvement in the case and will not participate in the 
evaluation, decision, or appeal actions. In addition, neither they, nor 
any member of their families, will acquire or maintain, either directly 
or indirectly, any financial interest in a medical partnership, 
corporation, or similar relationship in which consultative examinations 
are provided. Sometimes physicians and psychologists who do review work 
for us will have prior knowledge of a case; for example, when the 
claimant was a patient. Where this is so, the physician or psychologist 
will not participate in the review or determination of the case. This 
does not preclude the physician or psychologist from submitting medical 
evidence based on treatment or examination of the claimant.

[56 FR 36967, Aug. 1, 1991]

             Authorizing and Monitoring the Referral Process



Sec. 416.919s  Authorizing and monitoring the consultative examination.

    (a) Day-to-day responsibility for the consultative examination 
process rests with the State agencies that make disability 
determinations for us.
    (b) The State agency will maintain a good working relationship with 
the medical community in order to recruit sufficient numbers of 
physicians and other providers of medical services to ensure ready 
availability of consultative examination providers.
    (c) Consistent with Federal and State laws, the State agency 
administrator

[[Page 713]]

will work to achieve appropriate rates of payment for purchased medical 
services.
    (d) Each State agency will be responsible for comprehensive 
oversight management of its consultative examination program, with 
special emphasis on key providers.
    (e) A key consultative examination provider is a provider that meets 
at least one of the following conditions:
    (1) Any consultative examination provider with an estimated annual 
billing to the Social Security and Supplemental Security Income programs 
of at least $100,000; or
    (2) Any consultative examination provider with a practice of 
medicine, osteopathy, or psychology directed primarily towards 
evaluation examinations rather than the treatment of patients; or
    (3) Any consultative examination provider that does not meet the 
above criteria, but is one of the top five consultative examination 
providers in the State by dollar volume, as evidenced by prior year 
data.
    (f) State agencies have flexibility in managing their consultative 
examination programs, but at a minimum will provide:
    (1) An ongoing active recruitment program for consultative 
examination providers;
    (2) A process for orientation, training, and review of new 
consultative examination providers, with respect to SSA's program 
requirements involving consultative examination report content and not 
with respect to medical techniques;
    (3) Procedures for control of scheduling consultative examinations;
    (4) Procedures to ensure that close attention is given to specific 
evaluation issues involved in each case;
    (5) Procedures to ensure that only required examinations and tests 
are authorized in accordance with the standards set forth in this 
subpart;
    (6) Procedures for providing medical or supervisory approval for the 
authorization or purchase of consultative examinations and for 
additional tests or studies requested by consulting physicians and 
psychologists. This includes physician approval for the ordering of any 
diagnostic test or procedure where the question of significant risk to 
the claimant/beneficiary might be raised. See Sec. 416.919m.
    (7) procedures for the ongoing review of consultative examination 
results to ensure compliance with written guidelines;
    (8) Procedures to encourage active participation by physicians and 
psychologists in the consultative examination oversight program;
    (9) Procedures for handling complaints;
    (10) Procedures for evaluating claimant reactions to key providers; 
and
    (11) A program of systematic, onsite reviews of key providers that 
will include annual onsite reviews of such providers when claimants are 
present for examinations. This provision does not contemplate that such 
reviews will involve participation in the actual examinations but, 
rather, offer an opportunity to talk with claimants at the provider's 
site before and after the examination and to review the provider's 
overall operation.
    (g) The State agencies will cooperate with us when we conduct 
monitoring activities in connection with their oversight management of 
their consultative examination programs.

[56 FR 36967, Aug. 1, 1991]

           Procedures To Monitor the Consultative Examination



Sec. 416.919t  Consultative examination oversight.

    (a) We will ensure that referrals for consultative examinations and 
purchases of consultative examinations are made in accordance with our 
policies. We will also monitor both the referral processes and the 
product of the consultative examinations obtained. This monitoring may 
include reviews by independent medical specialists under direct contract 
with SSA.
    (b) Through our regional offices, we will undertake periodic 
comprehensive reviews of each State agency to evaluate each State's 
management of the consultative examination process. The review will 
involve visits to key providers, with State staff participating, 
including a program physician when

[[Page 714]]

the visit will deal with medical techniques or judgment, or factors that 
go to the core of medical professionalism.
    (c) We will also perform ongoing special management studies of the 
quality of consultative examinations purchased from key providers and 
other sources and the appropriateness of the examinations authorized.

[56 FR 36968, Aug. 1, 1991]

                        Evaluation of Disability



Sec. 416.920  Evaluation of disability of adults, in general.

    (a) Steps in evaluating disability. We consider all evidence in your 
case record when we make a determination or decision whether you are 
disabled. When you file a claim for Supplemental Security Income 
disability benefits and are age 18 or older, we use the following 
evaluation process. If you are doing substantial gainful activity, we 
will determine that you are not disabled. If you are not doing 
substantial gainful activity, we will first consider the effect of your 
physical or mental impairment; if you have more than one impairment, we 
will also consider the combined effect of your impairments. Your 
impairment(s) must be severe and meet the duration requirement before we 
can find you to be disabled. We follow a set order to determine whether 
you are disabled. We review any current work activity, the severity of 
your impairment(s), your residual functional capacity, your past work, 
and your age, education, and work experience. If we can find that you 
are disabled or not disabled at any point in the review, we do not 
review your claim further. Once you have been found eligible for 
Supplemental Security Income benefits based on disability, we follow a 
somewhat different order of evaluation to determine whether your 
eligibility continues, as explained in Sec. 416.994(f)(6).
    (b) If you are working. If you are working and the work you are 
doing is substantial gainful activity, we will find that you are not 
disabled regardless of your medical condition or your age, education, 
and work experience.
    (c) You must have a severe impairment. If you do not have any 
impairment or combination of impairments which significantly limits your 
physical or mental ability to do basic work activities, we will find 
that you do not have a severe impairment and are, therefore, not 
disabled. We will not consider your age, education, and work experience.
    (d) When your impairment(s) meets or equals a listed impairment in 
appendix 1. If you have an impairment(s) which meets the duration 
requirement and is listed in appendix 1 or is equal to a listed 
impairment(s), we will find you disabled without considering your age, 
education, and work experience.
    (e) Your impairment(s) must prevent you from doing past relevant 
work. If we cannot make a decision based on your current work activity 
or on medical facts alone, and you have a severe impairment(s), we then 
review your residual functional capacity and the physical and mental 
demands of the work you have done in the past. If you can still do this 
kind of work, we will find that you are not disabled.
    (f) Your impairment(s) must prevent you from doing other work. (1) 
If you cannot do any work you have done in the past because you have a 
severe impairment(s), we will consider your residual functional capacity 
and your age, education, and past work experience to see if you can do 
other work. If you cannot, we will find you disabled.
    (2) If you have only a marginal education, and long work experience 
(i.e., 35 years or more) where you only did arduous unskilled physical 
labor, and you can no longer do this kind of work, we use a different 
rule (see Sec. 416.962).

[50 FR 8728, Mar. 5, 1985; 50 FR 19164, May 7, 1985, as amended at 56 FR 
5554, Feb. 11, 1991; 56 FR 36968, Aug. 1, 1991]



Sec. 416.920a  Evaluation of mental impairments.

    (a) General. The steps outlined in Sec. 416.920 apply to the 
evaluation of physical and mental impairments. In addition, in 
evaluating the severity of mental impairments for adults (persons age 18 
and over) and in persons under age 18 when part A of the Listing of 
Impairments is used, a special procedure must be followed by us at each 
level of administrative review. Following this procedure will assist us 
in:

[[Page 715]]

    (1) Identifying additional evidence necessary for the determination 
of impairment severity;
    (2) Considering and evaluating aspects of the mental disorder(s) 
relevant to your ability to work; and
    (3) Organizing and presenting the findings in a clear, concise, and 
consistent manner.
    (b) Use of the procedure to record pertinent findings and rate the 
degree of functional loss. (1) This procedure requires us to record the 
pertinent signs, symptoms, findings, functional limitations, and effects 
of treatment contained in your case record. This will assist us in 
determining if a mental impairment(s) exists. Whether or not a mental 
impairment(s) exists is decided in the same way the question of a 
physical impairment is decided, i.e., the evidence must be carefully 
reviewed and conclusions supported by it. The mental status examination 
and psychiatric history will ordinarily provide the needed information. 
(See Sec. 416.908 for further information about what is needed to show 
an impairment.)
    (2) If we determine that a mental impairment(s) exists, this 
procedure then requires us to indicate whether certain medical findings 
which have been found especially relevant to the ability to work are 
present or absent.
    (3) The procedure then requires us to rate the degree of functional 
loss resulting from the impairment(s). Four areas of function considered 
by us as essential to work have been identified, and the degree of 
functional loss in those areas must be rated on a scale that ranges from 
no limitation to a level of severity which is incompatible with the 
ability to perform those work-related functions. For the first two areas 
(activities of daily living and social functioning), the rating of 
limitation must be done based upon the following five point scale: None, 
slight, moderate, marked, and extreme. For the third area 
(concentration, persistence or pace) the following five point scale must 
be used: Never, seldom, often, frequent, and constant. For the fourth 
area (deterioration or decompensation in work or work-like settings), 
the following four point scale must be used: Never, once or twice, 
repeated (three or more), and continual. The last two points for each of 
these scales represents a degree of limitation which is incompatible 
with the ability to perform the work-related function.
    (c) Use of the procedure to evaluate mental impairments. Following 
the rating of the degree of functional loss resulting from the 
impairment, we must then determine the severity of the mental 
impairment(s).
    (1) If the four areas considered by us as essential to work have 
been rated to indicate a degree of limitation as ``none'' or ``slight'' 
in the first and second areas, ``never'' or ``seldom'' in the third 
area, and ``never'' in the fourth area, we can generally conclude that 
the impairment is not severe, unless the evidence otherwise indicates 
there is significant limitation of your mental ability to do basic work 
activities (see Sec. 416.921).
    (2) If your mental impairment(s) is severe, we must then determine 
if it meets or equals a listed mental disorder. This is done by 
comparing our prior conclusions based on this procedure (i.e., the 
presence of certain medical findings considered by us as especially 
relevant to your ability to work and our rating of functional loss 
resulting from the mental impairment(s)) against the paragraph A and B 
criteria of the appropriate listed mental disorder(s). If we determine 
that paragraph C criteria will be used in lieu of paragraph B criteria 
(see listings 12.03 and 12.06), we will, by following this procedure, 
indicate on the document whether the evidence is sufficient to establish 
the presence or absence of the criteria. (See paragraph (d) of this 
section).
    (3) If you have a severe impairment(s) but the impairment(s) neither 
meets nor equals the listings, we must then do a residual functional 
capacity assessment, unless you are claiming benefits as a disabled 
child.
    (4) At all adjudicative levels we must, in each case, incorporate 
the pertinent findings and conclusions based on this procedure in our 
decision rationale. Our rationale must show the significant history, 
including examination, laboratory findings, and functional limitations 
that we considered in reaching conclusions about the severity of the 
mental impairment(s).

[[Page 716]]

    (d) Preparation of the document. A standard document outlining the 
steps of this procedure must be completed by us in each case at the 
initial, reconsideration, administrative law judge hearing, and Appeals 
Council levels (when the Appeals Council issues a decision).
    (1) At the initial and reconsideration levels the standard document 
must be completed and signed by our medical consultant. At the 
administrative law judge hearing level, several options are available:
    (i) The administrative law judge may complete the document without 
the assistance of a medical advisor;
    (ii) The administrative law judge may call a medical advisor for 
assistance in preparing the document; or
    (iii) Where new evidence is received that is not merely cumulative 
of evidence already in your case file or where the issue of a mental 
impairment arises for the first time at the administrative law judge 
hearing level, the administrative law judge may decide to remand the 
case to the State agency for completion of the document and a new 
determination. Remand may also be made in situations where the services 
of a medical advisor are determined necessary but unavailable to the 
administrative law judge. In such circumstances, however, a remand may 
ordinarily be made only once.
    (2) For all cases involving mental disorders at the administrative 
law judge hearing or Appeals Council levels, the standard document will 
be appended to the decision.

(Approved by the Office of Management and Budget under control number 
0960-0413)


[50 FR 35070, Aug. 28, 1985, as amended at 55 FR 51236, Dec. 12, 1990]



Sec. 416.921  What we mean by a not severe impairment(s) in an adult.

    (a) Non-severe impairment(s). An impairment or combination of 
impairments is not severe if it does not significantly limit your 
physical or mental ability to do basic work activities.
    (b) Basic work activities. When we talk about basic work activities, 
we mean the abilities and aptitudes necessary to do most jobs. Examples 
of these include--
    (1) Physical functions such as walking, standing, sitting, lifting, 
pushing, pulling, reaching, carrying, or handling;
    (2) Capacities for seeing, hearing, and speaking;
    (3) Understanding, carrying out, and remembering simple 
instructions;
    (4) Use of judgment;
    (5) Responding appropriately to supervision, co-workers and usual 
work situations; and
    (6) Dealing with changes in a routine work setting.

[50 FR 8729, Mar. 5, 1985, as amended at 56 FR 5554, Feb. 11, 1991]



Sec. 416.922  When you have two or more unrelated impairments--initial claims.

    (a) Unrelated severe impairments. We cannot combine two or more 
unrelated severe impairments to meet the 12-month duration test. If you 
have a severe impairment(s) and then develop another unrelated severe 
impairment(s) but neither one is expected to last for 12 months, we 
cannot find you disabled, even though the two impairments in combination 
last for 12 months.
    (b) Concurrent impairments. If you have two or more concurrent 
impairments which, when considered in combination, are severe, we must 
also determine whether the combined effect of your impairments can be 
expected to continue to be severe for 12 months. If one or more of your 
impairments improves or is expected to improve within 12 months, so that 
the combined effect of your remaining impairments is no longer severe, 
we will find that you do not meet the 12-month duration test.

[50 FR 8729, Mar. 5, 1985]



Sec. 416.923  Multiple impairments.

    In determining whether your physical or mental impairment or 
impairments are of a sufficient medical severity that such impairment or 
impairments could be the basis of eligibility under the law, we will 
consider the combined effect of all of your impairments without regard 
to whether any such impairment, if considered separately, would be of 
sufficient severity.

[[Page 717]]

If we do find a medically severe combination of impairments, the 
combined impact of the impairments will be considered throughout the 
disability determination process. If we do not find that you have a 
medically severe combination of impairments, we will determine that you 
are not disabled (see Secs. 416.920 and 416.924).

[50 FR 8729, Mar. 5, 1985, as amended at 56 FR 5554, Feb. 11, 1991]



Sec. 416.924  How we determine disability for children.

    (a) Steps in evaluating disability. We consider all relevant 
evidence in your case record when we make a determination or decision 
whether you are disabled. If you allege more than one impairment, we 
will evaluate all the impairments for which we have evidence. Thus, we 
will consider the combined effects of all your impairments upon your 
overall health and functioning. We will also evaluate any limitations in 
your functioning that result from your symptoms, including pain (see 
Sec. 416.929). When you file a new application for benefits, we use the 
evaluation process set forth in (b) through (d) of this section. We 
follow a set order to determine whether you are disabled. If you are 
doing substantial gainful activity, we will determine that you are not 
disabled and not review your claim further. If you are not doing 
substantial gainful activity, we will consider your physical or mental 
impairment(s) first to see if you have an impairment or combination of 
impairments that is severe. If your impairment(s) is not severe, we will 
determine that you are not disabled and not review your claim further. 
If your impairment(s) is severe, we will review your claim further to 
see if you have an impairment(s) that meets, medically equals, or 
functionally equals in severity any impairment that is listed in 
appendix 1 of subpart P of part 404 of this chapter. If you have such an 
impairment(s), and it meets the duration requirement, we will find that 
you are disabled. If you do not have such an impairment(s), or if it 
does not meet the duration requirement, we will find that you are not 
disabled.
    (b) If you are working. If you are working and the work you are 
doing is substantial gainful activity, we will find that you are not 
disabled regardless of your medical condition or age, education, or work 
experience. (For our rules on how we decide whether you are engaging in 
substantial gainful activity, see Secs. 416.971 through 416.976.)
    (c) You must have a severe impairment(s). If your impairment(s) is a 
slight abnormality or a combination of slight abnormalities that causes 
no more than minimal functional limitations, we will find that you do 
not have a severe impairment(s) and are, therefore, not disabled.
    (d) Your impairment(s) must meet, medically equal, or functionally 
equal in severity a listed impairment in appendix 1. An impairment(s) 
causes marked and severe functional limitations if it meets or medically 
equals in severity the set of criteria for an impairment listed in the 
Listing of Impairments in appendix 1 of subpart P of part 404 of this 
chapter, or if it is functionally equal in severity to a listed 
impairment.
    (1) Therefore, if you have an impairment(s) that is listed in 
appendix 1, or is medically or functionally equal in severity to a 
listed impairment, and that meets the duration requirement, we will find 
you disabled.
    (2) If your impairment(s) does not meet the duration requirement, or 
does not meet, medically equal, or functionally equal in severity a 
listed impairment, we will find that you are not disabled.
    (3) We explain our rules for deciding whether an impairment(s) meets 
a listing in Sec. 416.925. Our rules for how we decide whether an 
impairment(s) medically equals a listing are set forth in Sec. 416.926. 
Our rules for deciding whether an impairment(s) functionally equals a 
listing are set forth in Sec. 416.926a.
    (e) If you attain age 18 after you file your disability application 
but before we make a determination or decision. For the period during 
which you are under age 18, we will evaluate whether you are disabled 
using the rules in this section. For the period starting with the day 
you attain age 18, we will evaluate whether you are disabled using the 
disability rules we use for adults filing new claims, in Sec. 416.920.

[[Page 718]]

    (f) Basic considerations. When we determine whether you are 
disabled, we will consider all relevant evidence in your case record. 
This may include medical evidence, school records, information from 
people who know you and can provide evidence about your functioning--
such as your parents, caregivers, and teachers--and other evidence that 
can help us assess your functioning on a longitudinal basis.
    (1) Medical evidence of your impairment(s) must describe symptoms, 
signs, or laboratory findings. The medical evidence may include formal 
testing that provides information about your development or functioning 
in terms of percentiles, percentages, standard deviations, or chronology 
(such as months of delay). Whenever possible, a medical source's 
findings should reflect consideration of information from your parents 
or other people who know you, as well as the medical source's findings 
and observations on examination; any discrepancies between formal test 
results and your customary behavior and daily activities should be duly 
noted and resolved.
    (2) Your functional limitations may also be observed and reported by 
others. Parents (or other caregivers), and other family members may 
provide important evidence on how well you are functioning on a day-to-
day basis. Educational and other intervention programs may be important 
sources of evidence about your functioning, and will often have 
documentary evidence in the form of evaluation instruments and other 
evidence from a variety of disciplines.
    (g) How we will explain our findings. When we make an initial or 
reconsidered determination whether you are disabled under this section 
or whether your disability continues under Sec. 416.994a (except when a 
disability hearing officer makes the reconsideration determination), we 
will complete a standard form, Form SSA-538, Childhood Disability 
Evaluation Form. The form outlines the steps of the sequential 
evaluation process for individuals who have not attained age 18. In 
these cases, the State agency medical or psychological consultant (see 
Sec. 416.1016) or other designee of the Commissioner has overall 
responsibility for the content of the form and must sign the form to 
attest that it is complete and that he or she is responsible for its 
content, including the findings of fact and any discussion of supporting 
evidence. Disability hearing officers, administrative law judges, and 
the administrative appeals judges on the Appeals Council (when the 
Appeals Council makes a decision) will not complete the form but will 
indicate their findings at each step of the sequential evaluation 
process in their determinations or decisions.

[58 FR 47577, Sept. 9, 1993, as amended at 62 FR 6421, Feb. 11, 1997]

    Effective Date Note:  At 62 FR 6421, Feb. 11, 1997, Sec. 416.924 was 
amended by removing paragraphs (a) and (f), redesignating paragraphs (b) 
through (e) as (a) through (d), adding new paragraphs (e) and (g), 
redesignating prior paragraph (g) as paragraph (f), and by revising 
newly designated paragraphs (a), (c), and (d), effective Apr. 14, 1997. 
For the convenience of the user, the superseded text is set forth as 
follows:

Sec. 416.924  How we determine disability for children.

                                * * * * *

    (a) Definition of comparable severity. If you are a child, we will 
find you disabled if you are not engaging in substantial gainful 
activity and you have an impairment or combination of impairments that 
is of comparable severity to an impairment or combination of impairments 
that would disable an adult and which meets the duration requirement 
(see Sec. 416.909). By the term comparable severity, we mean that your 
physical or mental impairment(s) so limits your ability to function 
independently, appropriately, and effectively in an age-appropriate 
manner that your impairment(s) and the limitations resulting from it are 
comparable to those which would disable an adult. Specifically, your 
impairment(s) must substantially reduce your ability to--
    (1) Grow, develop, or mature physically, mentally, or emotionally 
and, thus, to attain developmental milestones (see Sec. 416.924b(b)(2)) 
at an age-appropriate rate; or
    (2) Grow, develop, or mature physically, mentally, or emotionally 
and, thus, to engage in age-appropriate activities of daily living (see 
Sec. 416.924b(b)(3)) in self-care, play and recreation, school and 
academics, community activities, vocational settings, peer 
relationships, or family life; or
    (3) Acquire the skills needed to assume roles reasonably expected of 
adults (see Sec. 416.924b(b)(4)).

[[Page 719]]

    (b) Steps in evaluating disability. We consider all evidence in your 
case record when we make a determination or decision whether you are 
disabled. If you allege more than one impairment, we will evaluate all 
the impairments for which we have evidence. Thus, we will consider the 
combined effects of all your impairments upon your overall health and 
ability to function. We will also evaluate any limitations in your 
ability to function that result from your symptoms, including pain (see 
Sec. 416.929). When you file a claim, we use the evaluation process set 
forth in (c) through (f) of this section. We follow a set order to 
determine whether you are disabled. If you are doing substantial gainful 
activity, we will determine that you are not disabled and not review 
your claim further. If you are not doing substantial gainful activity, 
we will consider your physical or mental impairment(s) first to see if 
you have an impairment or combination of impairments that is severe. If 
your impairment(s) is not severe, we will determine that you are not 
disabled and not review your claim further. If your impairment(s) is 
severe, we will review your claim further to see if you have an 
impairment(s) that meets or equals in severity any impairment that is 
listed in appendix 1 of subpart P of part 404 of this chapter, in which 
case we will find you disabled. If you do not have such an 
impairment(s), we will do an individualized functional assessment and 
determine whether you are disabled. Once you have been found eligible 
for disability benefits, we follow a somewhat different procedure to 
determine whether your eligibility continues, as explained in 
Sec. 416.994a.
    (c) You must have a severe impairment(s). If your impairment is a 
slight abnormality or a combination of slight abnormalities that causes 
no more than minimal limitation in your ability to function 
independently, appropriately, and effectively in an age-appropriate 
manner, we will find that you do not have a severe impairment and are, 
therefore, not disabled.
    (d) When your impairment(s) meets or equals a listed impairment in 
appendix 1. The Listing of Impairments in appendix 1 of subpart P of 
part 404 of this chapter is set at a level of severity that precludes 
any gainful activity or that is comparable in severity to an impairment 
that would preclude an adult from engaging in any gainful activity. 
Therefore, if you have an impairment(s) which meets the duration 
requirement and is listed in appendix 1, or is equal to a listed 
impairment, we will find you disabled. We will not deny your claim on 
the basis of a finding that your impairment(s) does not meet the 
requirements for any listed impairment or is not equal in severity to 
any of the impairments listed in appendix 1. We explain our rules for 
deciding whether an impairment meets a listing in Sec. 416.925. Our 
rules for how we decide whether an impairment(s) equals a listing are 
set forth in Sec. 416.926a.

                                * * * * *

    (f) Your impairment(s) must be of comparable severity to an 
impairment(s) that would disable an adult. When we determine that your 
impairment(s) is severe, but that it does not meet or equal in severity 
any listed impairment, we will assess the impact of your impairment(s) 
on your overall ability to function independently, appropriately, and 
effectively in an age-appropriate manner. We will use this 
individualized functional assessment to decide whether you have an 
impairment(s) of comparable severity to an impairment(s) that would 
prevent an adult from engaging in substantial gainful activity and, 
thus, to determine whether or not you are disabled. We will use the 
individualized functional assessment in the following manner:
    (1) If:
    (i) Our evaluation of all the evidence in your claim shows that your 
impairment(s) substantially reduces your physical or mental ability to 
function independently, appropriately, and effectively in an age-
appropriate manner, and
    (ii) Your impairment(s) meets the duration requirement, we will find 
you disabled.
    (2) If we find that your impairment(s) does not substantially reduce 
your physical or mental ability to function independently, 
appropriately, and effectively in an age-appropriate manner, or if your 
impairment(s) does not meet the duration requirement, we will find that 
you are not disabled.

                                * * * * *



Sec. 416.924a  Age as a factor of evaluation in childhood disability.

    (a) General. In this regulation, we explain how we consider age when 
we decide whether you are disabled. Your age may or may not be a factor 
in our determination whether your impairment(s) meets or equals a 
listing, depending on the listing we use for comparison. However, your 
age is always an important factor when we decide whether your 
impairment(s) is severe (see Sec. 416.924(c)). Except in the case of 
certain premature infants, as described in paragraph (c) of this 
section, age means chronological age.
    (1) When we determine whether you have an impairment or combination 
of impairments that is severe, we will always consider the significance 
of your impairment(s) in relation to your age.

[[Page 720]]

    (2) The Listing of Impairments in appendix 1 of subpart P of part 
404 of this chapter contains examples of impairments that we consider of 
such significance that they cause marked and severe functional 
limitations. Therefore, we will usually decide whether your impairment 
meets a listing without giving special consideration to your age. 
However, several listings are divided into age categories. If the 
listing appropriate for evaluating your impairment includes such age 
categories, we will evaluate your impairment under the criteria for your 
age when we decide whether your impairment meets that listing.
    (3) When we compare an unlisted impairment with a listed impairment 
to determine whether you have an impairment(s) that medically or 
functionally equals the severity of a listing, the way in which we 
consider your age will depend on the listing we use for comparison. We 
will use the same principles for considering your age as in paragraph 
(a)(2) of this section; that is, we will consider your age only if we 
are comparing your impairment(s) to a listing that includes specific age 
categories.
    (4) In any disability determination, we will consider your age and 
whether it affects your ability to be tested. Even when your 
impairment(s) is not amenable to formal testing because of your age, we 
will consider all evidence that will help us decide whether you are 
disabled.
    (b) Correcting chronological age of premature infants. We generally 
use chronological age (that is, a child's age based on birth date) when 
we decide whether, or the extent to which, a physical or mental 
impairment or combination of impairments causes functional limitations. 
However, if you were born prematurely, we may consider you to be younger 
than your chronological age. When we evaluate the development or linear 
growth of a child born prematurely, we may use a ``corrected'' 
chronological age; that is, the chronological age adjusted by a period 
of gestational prematurity. We consider an infant born at less than 37 
weeks' gestation to be born prematurely.
    (1) We apply a corrected chronological age in these situations--
    (i) When we evaluate developmental delay in premature children until 
the child's prematurity is no longer a relevant factor; generally no 
later than about chronological age 2 (see paragraph (c)(2) of this 
section);
    (ii) When we evaluate an impairment of linear growth, such as under 
the listings in Sec. 100.00 in appendix 1 of subpart P of part 404 of 
this chapter, until the child is 12 months old. In this situation, we 
refer to neonatal growth charts which have been developed to evaluate 
growth in premature infants (see paragraph (c)(2) of this section).
    (2) We compute a corrected chronological age as follows--(i) If you 
have not attained age 1, we will correct your chronological age. We 
compute the corrected chronological age by subtracting the number of 
weeks of prematurity (i.e., the difference between 40 weeks of full-term 
gestation and the number of actual weeks of gestation) from your 
chronological age. The result is your corrected chronological age.
    (ii) If you are over age 1, have a developmental delay, and 
prematurity is still a relevant factor in your case (generally, no later 
than about chronological age 2), we will decide whether to correct your 
chronological age. Our decision will be based on our judgment and all 
the facts of your case. If we decide to correct your chronological age, 
we may correct it by subtracting the full number of weeks of prematurity 
or a lesser number of weeks. We will also decide not to correct your 
chronological age if we can determine from the evidence that your 
developmental delay is the result of your medically determinable 
impairment(s) and is not attributable to your prematurity.
    (3) Notwithstanding the provisions in paragraph (c)(1) of this 
section, we will not compute a corrected chronological age if the 
medical evidence shows that your treating source or other medical source 
has already taken your prematurity into consideration in his or her 
assessment of your development. Also, we will not compute a corrected 
chronological age when we find you disabled using the examples of 
functional equivalence based on low birth weight in Sec. 416.926a(d) (8) 
or (9).

[[Page 721]]

    (c) Age and the impact of severe impairments on younger children and 
older adolescents. Although a child may become disabled at any age, 
impairments of similar severity may have different effects on children 
of different ages. The following guidelines apply to determinations of 
disability for children of different ages, especially very young 
children and children approaching adulthood.
    (1) We recognize that how a particular child adapts to an 
impairment(s) depends on many factors (e.g., the nature and severity of 
the impairment(s), the child's temperament, the quality of adult 
intervention, and the child's age at onset of the impairment(s)). By 
adapting to an impairment, we mean the child's ability to learn those 
skills, habits, or behaviors that allow the child to compensate for the 
impairment(s) and, thus, to function as well as possible despite the 
impairment(s). Therefore, our disability determination will consider how 
you are adapting to your impairment(s) and the extent to which you are 
able to function as set forth in this section and Secs. 416.924 and 
416.924c.
    (2) When we decide whether you are disabled, we will generally 
consider the factor of age in a manner opposite from that described in 
the rules for determining whether an adult has the ability to adjust to 
other work (see Secs. 416.920(f) and 416.963). Thus, we consider that 
the older a child is, the more he or she is like a younger adult; we 
consider an older adolescent (i.e., a child aged 16 to 18) to be most 
like a ``younger person'' (i.e., a person in the age category 18 to 45 
(see Sec. 416.963(b)), and younger children to be most like older adults 
in terms of the significance of their impairments.
    (3) Although various kinds of growth and development occur 
throughout childhood and adolescence, the earliest years, from birth to 
approximately attainment of age 6, are characterized by complex and 
rapid changes; for example, learning to walk, talk, and care for basic 
physical and emotional needs.
    (i) The development of fundamental skills is a cumulative process 
founded upon skills acquired at each stage of a child's life. A child's 
ability to acquire or perform these skills ultimately determines his or 
her ability to master learning tasks in school and more complex physical 
activities and, eventually, affects the ability to work. Therefore, 
deficits of function resulting from impairments that occur before the 
attainment of age 6 may have a potentially greater, more limiting effect 
on a child's overall growth and development than impairments that occur 
later in life; and such deficits are increasingly significant with 
decreasing age.
    (ii) Furthermore, the mastery of skills in early childhood is a 
highly interactive and interdependent process within a child. This 
interdependence is especially true of development in certain areas; 
e.g., cognitive skill deficits may affect communication, and social and 
emotional deficits may affect cognitive and communicative development. 
This interdependent process also requires proper functioning in areas 
that may not be obviously relevant to the acquisition of the skill. For 
example, physical mobility is affected by how well a child sees; 
therefore, visual impairment, especially in a young child, can affect 
the way a child acquires certain motor skills even though the child does 
not have a specific motor impairment. Similarly, emotional bonding to 
parents can be affected by how well a child hears. Therefore, the impact 
of such seemingly isolated impairments can have implications for the 
overall development of the youngest children.
    (4) As children approach adulthood--that is, by about age 16--the 
functional abilities, skills, and behaviors that are appropriate for 
them are those that are also appropriate for adults. Older adolescents 
generally also share with the youngest adults the same abilities to 
adapt to work-related activities despite a severe impairment(s). By the 
age of adolescence, children have developed basic physical skills and 
behaviors, so that impairments occurring in adolescence may not have the 
cumulative interactive effects on functioning that impairments occurring 
in infancy and early childhood do. (However, as set forth in paragraph 
(c)(1) of this section, we also recognize that adolescents may 
experience a variety of impairments with different effects

[[Page 722]]

on their functioning. For instance, a child born with a degenerative 
disorder will experience a worsening of its effects as he or she grows 
older so that functioning may be more limited for the older child than 
it is for a younger child with the same illness or disorder.)

[58 FR 47578, Sept. 9, 1993, as amended at 62 FR 6422, Feb. 11, 1997]

    Effective Date Note:  At 62 FR 6422, Feb. 11, 1997, Sec. 416.924a 
was amended by removing paragraph (a)(4), redesignating paragraph (a)(5) 
as paragraph (a)(4), removing paragraph (b), redesignating paragraphs 
(c) and (d) as paragraphs (b) and (c), revising the third sentence of 
paragraph (a) introductory text, revising paragraph (a)(2), revising the 
first sentence of paragraph (a)(3), revising the first sentence of 
redesignated paragraph (b) introductory text, and revising redesignated 
paragraphs (c)(1) and (c)(4), effective Apr. 14, 1997. For the 
convenience of the user, the superseded text is set forth as follows:

Sec. 416.924a  Age as a factor of evaluation in childhood disability.

    (a) * * * However, your age is always an important factor when we 
decide whether your impairment(s) is severe (see Sec. 416.924(d)) or 
whether you are disabled based on an individualized functional 
assessment (see Sec. 416.924(f)). * * *

                                * * * * *

    (2) The Listing of Impairments in appendix 1 of subpart P of part 
404 of this chapter contains examples of impairments that we consider of 
such significance that they prevent a child from functioning 
independently, appropriately, and effectively in an age-appropriate 
manner. Therefore, we will usually decide whether your impairment meets 
a listing without giving special consideration to your age. However, 
several listings are divided into age categories. If the listing 
appropriate for evaluating your impairment includes such age categories, 
we will evaluate your impairment under the criteria for your age when we 
decide whether your impairment meets that listing.
    (3) When we compare an unlisted impairment or combination of 
impairments with a listed impairment to determine whether you have an 
impairment(s) which equals a listing, the way in which we consider your 
age will depend on the listing we use for comparison. * * *
    (4) When we determine whether you have an impairment(s) which, 
though not meeting or equaling the listings, is of comparable severity 
to an impairment that would disable an adult, we will always consider 
the significance of your impairment(s) in relation to your age. We will 
consider the functions, behaviors, and activities that are appropriate 
to your age, and will evaluate the effect of your impairment(s), either 
alone or in conjunction with other relevant factors, on your ability to 
perform these functions, behaviors, and activities. (We explain how we 
do this individualized functional assessment in Secs. 416.924d and 
416.924e.)
    (b) Age categories. When we determine whether you are functioning 
independently, appropriately, and effectively in an age-appropriate 
manner, we will consider your age in the following categories:
    (1) Newborn and young infants (birth to attainment of age 1).
    (2) Older infants and toddlers (age 1 to attainment of age 3).
    (3) Children (age 3 to attainment of age 18), considered according 
to the following subcategories:
    (i) Preschool children (age 3 to attainment of age 6).
    (ii) School-age children (age 6 to attainment of age 12).
    (iii) Young adolescents (age 12 to attainment of age 16), and
    (iv) Older adolescents (age 16 to attainment of age 18).
    (c) We generally use chronological age (that is, a child's age based 
on birth date) when we decide whether, or the extent to which, a 
physical or mental impairment(s) affects a child's ability to function 
independently, appropriately, and effectively in an age-appropriate 
manner. * * *

                                * * * * *

    (1) We recognize that how a particular child adapts to an 
impairment(s) depends on many factors (e.g., the nature and severity of 
the impairment(s), the child's temperament, the quality of adult 
intervention, and the child's age at onset of the impairment(s)). By 
adapting to an impairment, we mean the child's ability to learn those 
skills, habits, or behaviors which allow the child to compensate for the 
impairment(s) and, thus, to function in an age-appropriate manner as 
well as possible despite the impairment(s). Therefore, our disability 
determination will consider how you are adapting to your impairment(s) 
and the extent to which you are able to function independently, 
appropriately, and effectively in an age-appropriate manner as set forth 
in this section and Secs. 416.924 and 416.924c through 416.924e.
    (4) As children approach adulthood--that is, by about age 16--the 
functional abilities, skills, and behaviors that are age-appropriate for 
them are those that are also age-appropriate for 18-year-olds, i.e., 
those that are needed to assume roles reasonably expected of adults. 
Older adolescents generally also share with the youngest adults the same 
abilities to adapt to work-related activities despite a severe 
impairment(s).

[[Page 723]]

    (i) By the age of adolescence, children have developed basic 
physical and mental skills and behaviors, so that impairments occurring 
in adolescence may not have the cumulative interactive effects on 
functioning that impairments occurring in infancy and early childhood 
do. (However, as set forth in paragraph (d)(1) of this section, we also 
recognize that young and older adolescents may experience a variety of 
impairments with different effects on their ability to function in an 
age-appropriate manner. For instance, a child born with a degenerative 
disorder may experience a worsening of its effects as he or she grows 
older so that functioning is more limited for the older child than it is 
for a younger child with the same illness or disorder.)
    (ii) Inasmuch as age-appropriate functioning for an older adolescent 
is also that of an 18-year-old young adult, the disability determination 
for an older adolescent must be consistent with the disability 
determination we would make for an 18-year-old person having the same 
functional limitations.



Sec. 416.924b  Functioning in children.

    (a) General. When we evaluate whether your impairment(s) is severe 
and, if so, whether it causes marked and severe functional limitations, 
we will consider all of your mental and physical limitations that result 
from your impairment(s).
    (b) Terms used to describe functioning--(1) Age-appropriate 
activities. As used in these regulations, the term age-appropriate 
activities is a comprehensive term that refers to what a child is 
expected to be able to do given his or her age. A child's activities may 
be described in terms of the achievement of ``developmental 
milestones,'' ``activities of daily living,'' or other such terms. 
Information about a child's activities creates a profile of how the 
child is functioning, i.e., what a child does, and thus what he or she 
is able to do. This makes possible a comparison between the child's 
profile and the activities that are age-appropriate for that child.
    (2) Developmental milestones. The term developmental milestones 
refers to a child's expected principal developmental achievements at 
particular points in time. Ordinarily, failures to achieve developmental 
milestones are most important as indicators of impaired functioning from 
birth until the attainment of age 3, although they may be used to 
evaluate older children, especially preschool children.
    (3) Activities of daily living. The term activities of daily living 
refers to those activities of children that involve continuity of 
purpose and action, and goal or task orientation; that is, the practical 
implementation of skills mastered at earlier ages. Ordinarily, 
activities of daily living are most important as indicators of 
functional limitations in children aged 3 to attainment of age 16, 
although they may be used to evaluate children younger than age 3.
    (4) Work-related activities. The term work-related activities refers 
to those physical and mental activities that are associated with, or 
related to, activities in the workplace, as manifested in a person's 
activities in contexts such as school, work, vocational programs, and 
organized activities. Ordinarily, inability to perform work-related 
activities is most important as an indicator of functional limitations 
in adolescents aged 16 to attainment of age 18.

[58 FR 47580, Sept. 9, 1993, as amended at 62 FR 6423, Feb. 11, 1997]

    Effective Date Note:  At 62 FR 6423, Feb. 11, 1997, in Sec. 416.924b 
was amended by revising paragraph (a), the second sentences in 
paragraphs (b)(2) and (3), and paragraph (b)(4), and by removing 
paragraph (b)(5), effective Apr. 14, 1997. For the convenience of the 
user, the superseded text is set forth as follows:

Sec. 416.924b  Functioning in children.

    (a) General. When we evaluate your functioning, we will consider all 
of your mental and physical limitations that result from your 
impairment(s). We will evaluate the extent to which you can engage in 
age-appropriate activities in an independent, appropriate, and effective 
manner and, when applicable, whether you can do these things on a 
sustained basis appropriate to your age.
    (b) * * *
    (2) * * * Ordinarily, failures to achieve developmental milestones 
are the most important indicators of impaired functioning from birth 
until the attainment of age 3, although they may be used to evaluate 
older children, especially preschool children. * * *
    (3) * * * Ordinarily, activities of daily living are the most 
important indicators of functional limitations in children aged 3 to 
attainment of age 16, although they may be used to evaluate children 
younger than age 3. * * *
    (4) Work-related activities. The term work-related activities refers 
to those physical and mental activities that are associated with, or 
related to, activities in the workplace, as

[[Page 724]]

manifested in a person's activities in age-appropriate contexts, such as 
school, work, vocational programs, and organized activities. Ordinarily, 
inability to perform work-related activities is the most important 
indicator of impaired functioning in older adolescents, aged 16 to 
attainment of age 18.
    (5) Domains and behaviors. The terms developmental domains, 
functional domains, and behaviors, which we use when we perform an 
individualized functional assessment, refer to broad areas of 
functioning that can be identified in infancy and traced throughout a 
child's growth and maturation into adulthood. The domains describe the 
child's major spheres of activity--i.e., physical, cognitive, 
communicative, social/ emotional, and personal/behavioral. In addition, 
there are certain areas of behavior that are applicable to specific age 
categories (i.e., responsiveness to stimuli; concentration, persistence, 
and pace). The domains and behaviors we use in these regulations are 
intended to encompass and reflect all the things that a child may do at 
any particular age, and are, therefore, intended to include all of a 
child's functioning. All the effects of a child's impairment(s) on daily 
functioning will be considered within these domains and behaviors. The 
presence of pain or other symptoms can adversely affect functioning in 
the domains or behaviors. In these regulations, the term developmental 
domains is generally used when we discuss the functioning of younger 
children, i.e., from birth to age 3; the term functional domains is 
generally used when we discuss older children and adolescents, i.e., 
from age 3 to age 18. (See Sec. 416.924d for descriptions of the various 
domains and behaviors as they pertain to the different age categories.)



Sec. 416.924c  Other factors we will consider.

    (a) General. When we evaluate whether your impairment(s) is severe, 
and if so, whether it causes marked and severe functional limitations, 
we will consider all factors that are relevant to the evaluation of the 
effects of your impairment(s) on your functioning, such as the effects 
of your medications, the setting in which you live, your need for 
assistive devices, and your functioning in school. Therefore, when we 
assess your functional limitations, we will consider all evidence from 
medical and nonmedical sources--such as your parents, teachers, and 
other people who know you--that can help us to understand how your 
impairment(s) affects your functioning. Some of the factors we will 
consider include, but are not limited to, the factors in paragraphs (b) 
through (g) of this section.
    (b) Chronic illness. If you have a chronic impairment(s) that is 
characterized by episodes of exacerbation (worsening) or remission 
(improvement), we will consider the frequency and severity of your 
episodes of exacerbation and your periods of remission as factors in our 
determination whether you have a severe impairment(s) and, if so, 
whether it meets or medically or functionally equals in severity any 
listing, and is therefore disabling. For instance, if you require 
repeated hospitalizations, or frequent outpatient care with supportive 
therapy for a chronic impairment(s), we will consider this need for 
treatment in our determination. When we determine whether you are 
disabled, we will consider how the level of treatment you need for your 
chronic illness affects your functioning. We will consider whether the 
length and frequency of your hospitalizations or episodes of 
exacerbation significantly interfere with your functioning on a 
longitudinal basis, or whether the frequency of your outpatient care 
affects your functioning.
    (c) Effects of medication. We will consider the effects of 
medication on your symptoms, signs, and laboratory findings, including 
your functioning. Although medications may control the most obvious 
manifestations of your condition(s), they may or may not affect the 
functional limitations imposed by your impairment(s). If your symptoms 
or signs are reduced by medications, we will consider whether any 
functional limitations which may nevertheless persist are marked and 
severe, even if there is apparent improvement from the medications. We 
will also consider whether your medications create any side effects 
which cause or contribute to your functional limitations.
    (d) Effects of structured or highly supportive settings. Children 
with serious impairments may spend much of their time in structured or 
highly supportive settings. A structured or highly supportive setting 
may be your own home, in which family members make extraordinary 
adjustments to accommodate your impairment(s); or your classroom at 
school, whether a regular class in which you are accommodated or a

[[Page 725]]

special classroom; or a residential facility or school where you live 
for a period of time. Children with chronic impairments also commonly 
have their lives structured in such a way as to minimize stress and 
reduce their symptoms or signs of impairment; others may continue to 
have persistent pain, fatigue, decreased energy, or other symptoms or 
signs, though at a lesser level of severity. Such children may be more 
impaired in their overall functioning than their symptoms and signs 
would indicate. Therefore, if your symptoms or signs are controlled or 
reduced by the environment in which you live, we will consider your 
functioning outside of this highly structured setting.
    (e) Adaptations. We will consider the nature and extent of any other 
adaptations that are made for you in order to enable you to function. 
Such adaptations may include assistive devices, appliances, or 
technology. Some adaptations may enable you to function normally, or 
almost normally (e.g., eyeglasses, hearing aids). Others may increase 
your functioning, even though you may still have functional limitations 
(e.g., ankle-foot orthoses, hand or foot splints, and specially adapted 
or custom-made tools, utensils, or devices for self-care activities such 
as bathing, feeding, toileting, and dressing). When we evaluate your 
overall functioning with an adaptation, we will consider the degree to 
which the adaptation enables you to function and any functional 
limitations that nevertheless persist.
    (f) Time spent in therapy. You may need frequent and ongoing therapy 
from one or more kinds of health care professionals in order to maintain 
or improve your functional status. Therapy may include occupational, 
physical, or speech and language therapy, special nursing services, 
psychotherapy, or psychosocial counseling. Frequent therapy, although 
intended to improve your functioning in some ways, may also interfere 
with your functioning in other ways. If you receive frequent therapy at 
school during a normal school day, it may or may not interfere 
significantly with your functioning. If you must frequently interrupt 
your activities at school or at home for therapy, these interruptions 
may interfere with your functioning. We will consider the frequency of 
any therapy that you must have, how long you have needed the therapy or 
will need the therapy, and whether it interferes with your functioning.
    (g) School attendance. (1) School records and information from 
people at school who know you or who have examined you, such as teachers 
and school psychologists, psychiatrists, or therapists, may be important 
sources of information about your impairment(s) and its effect on your 
functioning. If you attend school, we will consider this evidence when 
it is relevant and available to us.
    (2) The fact that you are able to attend school will not, in itself, 
be an indication that you are not disabled. We will consider the 
circumstances of your school attendance, such as your functioning in a 
regular classroom setting. Likewise, the fact that you are in a special 
education classroom setting, or that you are not in such a setting, will 
not in itself establish your actual limitations or abilities. We will 
consider the fact of such placement or lack of placement in the context 
of the remainder of the evidence in your case record.
    (3) However, if you are unable to attend school on a regular basis 
because of your impairment(s), we will consider this when we determine 
whether you are disabled.
    (h) Treatment and intervention, in general. With adequate treatment 
or intervention, some children not only have their symptoms and signs 
reduced, but also maintain, return to or achieve a level of functioning 
that is not disabling. Treatment or intervention may prevent, eliminate, 
or reduce functional limitations; if such limitations were disabling in 
the absence of treatment or intervention, treatment or intervention may 
eliminate them or reduce them so that they are not disabling. We will, 
therefore, evaluate the effects of your treatment or intervention to 
determine the actual outcome of the treatment or intervention in your 
particular case.

[62 FR 6423, Feb. 11, 1997]

    Effective Date Note:  At 62 FR 6423, Feb. 11, 1997, Sec. 416.924c 
was revised, effective Apr.

[[Page 726]]

14, 1997. For the convenience of the user, the superseded text is set 
forth as follows:

Sec. 416.924c  Other factors we will consider.

    (a) General. When we evaluate how you are able to function, we will 
consider all factors that are relevant to the evaluation of the effects 
of your impairment(s) on your functioning, such as the effects of your 
medications, the setting in which you live, your need for assistive 
devices, and your functioning in school. Therefore, when we assess the 
effect of your impairment(s) on your functioning, we will consider all 
evidence from medical and nonmedical sources--such as your parents, 
teachers, and other people who know you--that can help us to understand 
how your impairment(s) affects your ability to function, and help us to 
assess your functioning within the domains and behaviors (see 
Sec. 416.924b(b)(5)). Some of the factors we will consider include, but 
are not limited to, the factors in paragraphs (b) through (g) of this 
section.
    (b) Chronic illness. If you have a chronic impairment(s) that is 
characterized by episodes of exacerbation (worsening) or remission 
(improvement), we will consider the frequency and severity of your 
episodes of exacerbation and your periods of remission as factors in our 
determination of your overall ability to function. For instance, if you 
require repeated hospitalizations or frequent outpatient care with 
supportive therapy for a chronic impairment(s), we will consider this 
need for treatment in our determination. When we determine whether you 
can function independently, appropriately, and effectively in an age-
appropriate manner, we will consider how the level of treatment you need 
for your chronic illness affects your functioning. We will consider 
whether the length and frequency of your hospitalizations or episodes of 
exacerbation significantly interfere with your overall functioning on a 
longitudinal basis, or whether your outpatient care (because of its 
frequency, effects on your functioning, or both) significantly 
interferes with your activities of daily living.
    (c) Effects of medication. We will consider the effects of 
medication on your symptoms, signs, and laboratory findings, including 
your ability to function. Although medications may control the most 
obvious manifestations of your condition(s), they may or may not affect 
the functional limitations imposed by your impairment(s). If your 
symptoms or signs are reduced by medications, we will consider whether 
you have any functional limitations which may nevertheless persist, even 
if there is apparent improvement from the medications. We will also 
consider whether your medications create any side effects which cause or 
contribute to your functional limitations.
    (d) Effects of structured or highly supportive settings. Children 
with severe impairments may spend much of their time in structured or 
highly supportive settings. A structured or highly supportive setting 
may be your own home, in which family members make extraordinary 
adjustments to accommodate your impairment(s); or your classroom at 
school, whether a regular class in which you are accommodated or a 
special classroom; or a residential facility or school where you live 
for a period of time. Children with chronic impairments also commonly 
have their lives structured in such a way as to minimize stress and 
reduce their symptoms or signs, and may be relatively free of obvious 
symptoms or signs of impairment; others may continue to have persistent 
pain, fatigue, decreased energy, or other symptoms or signs, though at a 
lesser level of severity. Such children may be more impaired in their 
overall ability to function in an age-appropriate manner than their 
symptoms and signs would indicate. Therefore, if your symptoms or signs 
are controlled or reduced by the environment in which you live, we will 
consider your ability to function independently, appropriately, and 
effectively in an age-appropriate manner outside of this highly 
structured setting.
    (e) Adaptations. We will consider the nature and extent of any other 
adaptations that are made for you in order to enable you to function. 
Such adaptations may include assistive devices, appliances, or 
technology. Some adaptations may enable you to function normally, or 
almost normally (e.g., eyeglasses, hearing aids). Others may increase 
your ability to function, even though you may still have limitations in 
your ability to function in an age-appropriate manner (e.g., ankle-foot 
orthoses, hand or foot splints, and specially adapted or custom-made 
tools, utensils, or devices for self-care activities such as bathing, 
feeding, toileting, and dressing). When we evaluate your overall ability 
to function with an adaptation, we will consider the degree to which the 
adaptation enables you to function independently, appropriately, and 
effectively in an age-appropriate manner.
    (f) Time spent in therapy. You may need frequent and ongoing therapy 
from one or more kinds of health care professionals in order to maintain 
or improve your functional status. Therapy may include occupational, 
physical, or speech and language therapy, special nursing services, 
psychotherapy, or psychosocial counseling. Frequent and continuous 
therapy, although intended to improve your functioning, may also 
interfere significantly with your opportunities to engage in, and 
sustain, age-appropriate activities. If you receive such therapy at 
school during a normal school day, it may or may not interfere 
significantly with your doing

[[Page 727]]

age-appropriate activities. If you must frequently interrupt your 
activities at school or at home for therapy, these interruptions may 
interfere with your development and age-appropriate functioning. When we 
determine whether you can function independently, appropriately, and 
effectively in an age-appropriate manner, we will consider the frequency 
of any multidisciplinary therapy that you must have, how long you have 
needed the therapy or will need the therapy, and the extent to which it 
interferes with your age-appropriate functioning.
    (g) School attendance. (1) School records and information from 
people at school who know you or who have examined you, such as teachers 
and school psychologists, psychiatrists, or therapists, may be important 
sources of information about your impairment(s) and its effect on your 
ability to function. If you attend school, we will consider this 
evidence when it is relevant and available to us.
    (2) The fact that you are able to attend school will not, in itself, 
be an indication that you are not disabled. We will consider the 
circumstances of your school attendance, such as your ability to 
function independently, appropriately, and effectively in a regular 
classroom setting in an age-appropriate manner. Likewise, the fact that 
you are in a special education classroom setting, or that you are not in 
such a setting, will not in itself establish your actual limitations or 
abilities. We will consider the fact of such placement or lack of 
placement in the context of the remainder of the evidence in your case 
record.
    (3) However, if you are unable to attend school on a regular basis 
because of your impairment(s), we will consider this when we determine 
whether you are able to function independently, appropriately, and 
effectively in an age-appropriate manner.
    (h) Treatment and intervention, in general. With adequate treatment 
or intervention, some children not only have their symptoms and signs 
reduced, but also return to or achieve a level of functioning that is 
consistent with the norms for their age. We will, therefore, evaluate 
the effects of your treatment or intervention to determine the actual 
outcome of the treatment or intervention in your particular case.

[58 FR 47581, Sept. 9, 1993]



Sec. 416.924d  Individualized functional assessment for children.

    (a) General. If your impairment(s) is severe, but does not meet or 
equal in severity any of the listings in appendix 1 of subpart P of part 
404 of this chapter, we will do an individualized functional assessment 
to determine whether you have an impairment or combination of 
impairments which would nevertheless be of comparable severity to an 
impairment(s) that would disable an adult. When we assess your 
functioning, we will consider all information in your case record that 
can help us determine the impact of your impairment(s) on your physical 
and mental functioning. We will consider the nature of your 
impairment(s), your age, your ability to be tested given your age, your 
ability to perform age-appropriate daily activities, and other relevant 
factors. (See Secs. 416.924a through 416.924c.) We will assess the 
extent to which you are able to function independently, appropriately, 
and effectively in an age-appropriate manner despite your impairment(s), 
and use this assessment to determine whether you are disabled.
    (b) Responsibility for individualized functional assessment. In 
cases where the State agency or other designee of the Secretary makes 
the initial or reconsideration disability determination, a State agency 
staff medical or psychological consultant or other designee of the 
Secretary (see Sec. 416.1016) has the overall responsibility for the 
individualized functional assessment. This assessment is based on all of 
the evidence we have, from all sources, including any statements 
regarding what you can still do that have been provided by treating or 
examining physicians, consultative physicians, or any other medical or 
psychological consultant designated by the Secretary. For cases in the 
disability hearing process, the responsibility for the individualized 
functional assessment rests with either the disability hearing officer 
or, if the disability hearing officer's reconsidered determination is 
changed under Sec. 416.1418, with the Associate Commissioner for 
Disability or his or her delegate. For cases at the Administrative Law 
Judge hearing or Appeals Council level, the responsibility for the 
individualized functional assessment rests with the Administrative Law 
Judge or Appeals Council.
    (c) Domains of development or functioning. The following are the 
domains of development or functioning, or specific behaviors, that may 
be addressed in an individualized functional assessment:
    (1) Cognition;

[[Page 728]]

    (2) Communication;
    (3) Motor abilities;
    (4) Social abilities;
    (5) Responsiveness to stimuli (in children from birth to the 
attainment of age 1);
    (6) Personal/behavioral patterns (in children from age 1 to the 
attainment of age 18); and
    (7) Concentration, persistence, and pace in task completion (in 
children from age 3 to the attainment of age 18).
    (d) How we use the domains. (1) When we do an individualized 
functional assessment, we will consider the extent of your impairment-
related limitations in the domains or behaviors affected by your 
impairment(s), and how well you are able to do age-appropriate 
activities despite your limitations. We will also consider how your 
impairment(s) in one domain affects your development or functioning in 
other domains.
    (2) We will consider whether any help or intervention that you need 
from others to enable you to do any particular activity is appropriate 
to your age.
    (3) The guidelines in paragraphs (e) through (j) of this section 
describe, in terms of the age categories outlined in Sec. 416.924a(b), 
the domains of development or functioning and the behaviors used in 
doing an individualized functional assessment, and the general kinds of 
age-related activities that may be affected by your impairment(s). (See 
Sec. 416.924a(a)(5) for guidelines on age and a child's ability to be 
tested, and Sec. 416.924e for guidelines for determining disability 
using an individualized functional assessment.)
    (e) Newborns and young infants (birth to attainment of age 1). 
Children in this age group are evaluated in an individualized functional 
assessment in terms of four developmental domains and an area of 
behavior important to newborns and young infants.
    (1) Cognitive development, e.g., your ability to begin to organize 
and regulate how you feel and the ways you react to your environment;
    (2) Communicative development (includes speech and language), e.g., 
your ability to communicate spontaneously and with intention through 
visual, motor, and vocal exchanges;
    (3) Motor development (includes gross and fine motor skills), e.g., 
your ability to explore your environment by moving your body, and your 
ability to manipulate your environment by using your hands;
    (4) Social development, e.g., your ability to form patterns of self-
regulation, to form and maintain intimate relationships with your 
primary caregivers, and to exchange a variety of age-appropriate 
emotional cues and begin to organize intentional behavior;
    (5) Responsiveness to stimuli, i.e., your ability to respond 
appropriately to stimulation, e.g., visual, auditory, and tactile.
    (f) Older infants and toddlers (age 1 to attainment of age 3). 
Children in this age group are evaluated in an individualized functional 
assessment in terms of five developmental domains.
    (1) Cognitive development, e.g., your ability to understand by 
responding to increasingly complex requests, instructions or questions, 
by referring to yourself and things around you by pointing and 
eventually by naming, and by copying things or imitating actions shown 
to you by others, and by knowing what you want, as illustrated, for 
example, by searching for a toy or asking for a special food;
    (2) Communicative development (includes speech and language), e.g., 
your ability to communicate your wishes or needs by using gestures or 
pretend play, and by understanding, imitating, and using an increasing 
number of intelligible words, and eventually forming two-to-four word 
sentences in spontaneous, interactive conversation;
    (3) Motor development (includes gross and fine motor skills), e.g., 
your ability to move in your environment using your body with steadily 
increasing dexterity and independence from support by others, and your 
ability to use your hands to do something that you want or get something 
that you need;
    (4) Social development, e.g., your ability to express normal 
dependence upon, and intimacy with, your primary caregivers, as well as 
increasing independence from them, to initiate and respond to a variety 
of age-appropriate emotional cues, and to regulate and organize emotions 
and behaviors;
    (5) Personal/behavioral development, e.g., your ability to help 
yourself and

[[Page 729]]

to cooperate with others in taking care of your personal needs, in 
adapting to your environment, in responding to limits, and in learning 
new skills.
    (g) Preschool children (age 3 to attainment of age 6). Children in 
this age group are evaluated in an individualized functional assessment 
in terms of five developmental domains and an area of behavior important 
to preschool children.
    (1) Cognitive development, e.g., your ability to understand, to 
reason and to solve problems, and to use acquired knowledge and 
concepts;
    (2) Communicative development (includes speech and language), e.g., 
your ability to communicate by telling, requesting, predicting, and 
relating information, by following and giving directions, by describing 
actions and functions, and by expressing your needs, feelings, and 
preferences in a spontaneous, interactive, and increasingly intelligible 
manner, using simple sentences in grammatical form;
    (3) Motor development (includes gross and fine motor skills), e.g., 
your ability to move and use your arms and legs in increasingly more 
intricate and coordinated activity, and your ability to use your hands 
with increasing coordination to manipulate small objects during play.
    (4) Social development, e.g., your ability to initiate age-
appropriate social exchanges and to respond to your social environment 
through appropriate and increasingly complex interpersonal behaviors, 
such as showing affection, sharing, cooperating, helping, and relating 
to other children as individuals or as a group;
    (5) Personal/behavioral development, e.g., your ability to help 
yourself and to cooperate with others in taking care of your personal 
needs, in adapting to your environment, in responding to limits, and in 
learning new skills;
    (6) Concentration, persistence, and pace, e.g., your ability to 
engage in an activity, such as dressing or playing, and to sustain the 
activity for a period of time and at a pace appropriate to your age.
    (h) School-age children (age 6 to attainment of age 12). Children in 
this age group are evaluated in an individualized functional assessment 
in terms of five functional domains and an area of behavior important to 
school-age children.
    (1) Cognitive function, e.g., your ability to progress in learning 
the skills involved in reading, writing, and mathematics;
    (2) Communicative function (includes speech and language), e.g., 
your ability to communicate pragmatically (i.e., to meet your needs) and 
conversationally (i.e., to exchange information and ideas with peers and 
family or with groups such as your school classes) in a spontaneous, 
interactive, sustained, and intelligible manner;
    (3) Motor function (includes gross and fine motor skills), e.g., 
your ability to engage in the physical activities involved in play and 
physical education, appropriate to your age;
    (4) Social function, e.g., your ability to play alone, or with 
another child, or in a group; to initiate and develop friendships, to 
respond to your social environments through appropriate and increasingly 
complex interpersonal behaviors, such as empathizing with others and 
tolerating differences; and to relate appropriately to individuals and 
groups (e.g., siblings, parents or caregivers, peers, teachers, school 
classes, neighborhood groups);
    (5) Personal/behavioral function, e.g., your ability to help 
yourself and to cooperate with others in taking care of your personal 
needs and safety; to respond appropriately to authority and school 
rules; to manifest a sense of responsibility for yourself and respect 
for others; to adapt to your environment; and to learn new skills;
    (6) Concentration, persistence, and pace, e.g., your ability to 
engage in an activity, such as playing or reading, and to sustain the 
activity for a period of time and at a pace appropriate to your age.
    (i) Young adolescents (age 12 to attainment of age 16). Children in 
this age group are evaluated in an individualized functional assessment 
in terms of five functional domains and an area of behavior important to 
young adolescents.
    (1) Cognitive function, e.g., your ability to progress in applying 
the skills

[[Page 730]]

involved in reading, writing, and mathematics; your conceptual growth, 
reasoning and problem-solving abilities;
    (2) Communicative function (includes speech and language), e.g., 
your ability to communicate pragmatically (i.e., to meet your needs) and 
to converse spontaneously and interactively, expressing complex thoughts 
with increasing vocabulary in all communication environments (e.g., 
home, classroom, playground, extra-curricular activities, job) and with 
all communication partners (e.g., parents or caregivers, siblings, 
peers, school classes, teachers, other authority figures);
    (3) Motor function (includes gross and fine motor skills), e.g., 
your ability to engage in the physical activities involved in physical 
education, sports, and social events appropriate to your age;
    (4) Social function, e.g., your ability to initiate and develop 
friendships, to relate appropriately to individual peers and adults and 
to peer and adult groups, and to reconcile conflicts between yourself 
and peers or family members or other adults outside your family;
    (5) Personal/behavioral function, e.g., your ability to help 
yourself in taking care of your personal needs and safety, to respond 
appropriately to authority and school rules, to manifest a sense of 
responsibility for yourself and respect for others; to adapt to your 
environment; and to learn new skills;
    (6) Concentration, persistence, and pace, e.g., your ability to 
engage in an activity, such as studying or practicing a sport, and to 
sustain the activity for a period of time and at a pace appropriate to 
your age.
    (j) Older adolescents (age 16 to attainment of age 18). (1) 
Descriptive information about your activities of daily living will tell 
us about the nature and age-appropriateness of your activities with 
respect to your cognitive functioning, communicative functioning, motor 
functioning, social functioning, personal/behavioral functioning, and 
your concentration, persistence, and pace in school or work-related 
activities. (See Sec. 416.924d(i) (1) through (6) for a description of 
these domains and behaviors.)
    (2) As you approach adulthood (i.e., beginning at about age 16), we 
will consider some of your school activities as evidence of your ability 
to function in a job setting. For example, we will consider your ability 
to understand, carry out, and remember simple instructions and work-like 
procedures in the classroom as evidence of your ability to do these 
things in a job. We will consider your ability to communicate 
spontaneously, interactively, and age-appropriately in the classroom as 
evidence of your ability to do this in a job. We will consider your 
ability to maintain attention for extended periods of time and to 
sustain an ordinary daily routine without special supervision as 
evidence of your ability to do these things in a job. We will consider 
your ability to deal with authority figures and to follow directions in 
school, responding appropriately to correction or criticism, as evidence 
of your ability to deal with supervision on a job. We will consider your 
ability to interact with peers in school, school-related activities, and 
other age-appropriate environments as evidence of your ability to relate 
to co-workers in a job. We will consider your ability to regulate your 
mood and behavior in various school settings as evidence of your ability 
to deal with change in a work setting. We will consider your ability to 
engage in physical activities both in and out of school as evidence of 
your ability to perform the physical demands of work. We will also 
consider whether you have acquired any skills from specific vocational 
education and whether you have pursued any part-time or stay-in-school 
employment.
    (3) If you are working or have worked, we will evaluate such things 
as: The physical activities in which you are engaged on the job; the 
regularity and punctuality of your attendance; your ability to follow 
directions and deal with supervisors; and your ability to work 
independently and to deal with others in your job.

[58 FR 47582, Sept. 9, 1993]

    Effective Date Note:  At 62 FR 6424, Feb. 11, 1997, Sec. 416.924d 
was removed, effective Apr. 14, 1997.

[[Page 731]]



Sec. 416.924e  Guidelines for determining disability using the individualized functional assessment.

    (a) General. The guidelines in this section are provided as a 
framework for deciding whether a child who has a severe impairment(s) 
that does not meet or equal the listings nevertheless has an 
impairment(s) that is of comparable severity to one that would disable 
an adult, and is, therefore, disabled. The guidelines illustrate a level 
of impairment severity that is generally, though not invariably, 
sufficient to establish comparable severity; i.e., to establish that 
there is an impairment or combination of impairments that substantially 
reduces your ability to function independently, appropriately, and 
effectively in an age-appropriate manner. The examples in this section 
are only guidelines to illustrate severity and are not all-inclusive 
rules. The determination of your claim is based on all relevant evidence 
in the case record, using the principles and guidance in Secs. 416.924 
through 416.924d on a case-by-case basis.
    (b) How we describe functional limitations. The terms used in this 
section to describe functional severity of both physical and mental 
impairments employ as a frame of reference the terminology and 
definitions in the childhood mental listings in 112.00 of the Listing of 
Impairments in appendix 1 to subpart P of part 404 of this chapter. 
Hence, the examples of ``moderate'' and other limitations are derived 
from a comparison with the ``marked'' levels of functional limitation in 
the listings. As in those listings, ``marked'' and ``moderate'' are not 
the number of activities or functions which are restricted, but the 
overall degree of restriction or combination of restrictions in a domain 
or behavior. A marked or moderate limitation may arise when several 
activities or functions in a domain or behavior are impaired, or even 
when only one is impaired.
    (1) If you are a younger child, from birth to the attainment of age 
3, your functional limitations will generally be described in the 
examples in terms of a developmental delay, or the fraction or 
percentage of your chronological age that represents the levels of your 
functioning; e.g., three-fourths of chronological age. If you are 
functioning in one of the domains or behaviors described for your age in 
Sec. 416.924d at more than one-half, but not more than two-thirds, of 
your chronological age, you are said to have a marked impairment in that 
domain or behavior. If you are functioning in one of the domains or 
behaviors described for your age in Sec. 416.924d at more than two-
thirds, but not more than three-fourths of your chronological age, we 
describe your impairment in that domain or behavior as moderate.
    (2) If you are an older child or young adolescent, from age 3 to the 
attainment of age 16, your impairment(s) will generally be described in 
the examples in terms of specific kinds of age-appropriate activities, 
functional abilities, or abnormal behaviors. Although it is sometimes 
appropriate to evaluate severity in this age group in the same terms as 
are used in paragraph (b)(1) of this section, which describes moderate 
limitation of functioning in terms of a level that is more than two-
thirds but not more than three-fourths of a child's chronological age, 
the older a child becomes, the less precise are the means of determining 
this kind of profile. The spectrum of limitations that may constitute 
``moderate'' impairment in this age group ranges from limitations that 
may be close to the ``marked'' level in severity to limitations that may 
be close to the ``mild'' level and, thus, considerably less limiting. 
Use of the examples as guides in the evaluation of older children and 
young adolescents, therefore, requires careful evaluation and judgment 
in each individual case, taking into account the child's age (as 
explained in Sec. 416.924a) and all other relevant factors described in 
Secs. 416.924 through 416.924d.
    (3) If you are an older adolescent, aged 16 to the attainment of age 
18, functional limitations are generally evaluated in terms of physical 
and mental activities that are the same as, or similar to, activities of 
young adults. Hence, the guidance and examples in paragraph (d) of this 
section focus on physical abilities (exertional and nonexertional) and 
mental abilities associated with work activities, as described in 
Secs. 416.921, 416.945, 416.967,

[[Page 732]]

416.968, and 416.969a. However, assessment of an older adolescent's 
abilities and limitations is to be made in an age-appropriate context, 
as demonstrated by performance in school, work, and other relevant 
settings.
    (c) How we evaluate children from birth to attainment of age 16--(1) 
Young children (birth to attainment of age 3). If you are a newborn or 
young infant (birth to the attainment of age 1), we evaluate the 
severity of your impairment(s) with respect to four developmental 
domains (cognitive, communicative, motor, and social development) and 
your responsiveness to stimuli. If you are an older infant or toddler 
(age 1 to the attainment of age 3), we evaluate the severity of your 
impairment(s) with respect to five developmental domains (cognitive, 
communicative, motor, social, and personal/behavioral development). (See 
Sec. 416.924d(e) and (f) for descriptions of the domains and behaviors 
appropriate to each age group.) Our evaluation of severity is based on 
comparison with the descriptors of functional severity in Listings 
112.02-112.12 for childhood mental disorders: If you achieve development 
of only one-half or less of your chronological age in a single domain, 
or of only two-thirds or less of your chronological age in two domains, 
your limitations are at listing-level severity. Examples of when we will 
generally find comparable severity (as defined in paragraph (a) of this 
section) and, thus, find you disabled include the following situations 
described in paragraphs (c)(1) (i) through (ii) of this section. 
However, the guidance provided by these examples for evaluating young 
children is not intended to be a standard by which all cases must be 
judged. Each case must be evaluated on its own merits using the 
principles and guidelines of all the regulations addressing childhood 
disability.
    (i) You are functioning in one domain (e.g., motor development) at a 
level that is more than one-half, but not more than two-thirds of the 
normal age-appropriate level for a child your age and you are 
functioning in another domain (e.g., communicative) at a level that is 
more than two-thirds but not more than three-fourths of the normal age-
appropriate level for a child your age; or
    (ii) You are functioning in three domains (e.g., cognitive, motor, 
and social development) at a level that is more than two-thirds, but not 
more than three-fourths of the normal age-appropriate level for a child 
your age.
    (2) Older children and young adolescents, age 3 to attainment of age 
16. If you are in this age group, we evaluate the severity of your 
impairment(s) with respect to five functional domains (cognitive, 
communicative, motor, social, and personal/behavioral function), and 
your concentration, persistence, and pace in the completion of age-
appropriate tasks. (See Sec. 416.924d(g) through (i) for descriptions of 
the domains and behaviors appropriate to this age group.) The level of 
severity illustrating the term ``moderate,'' and the overall level of 
disability at less than the listing level, are based on comparison with 
the listing-level requirement for marked impairment in two domains, as 
described in 112.00C of the Listing of Impairments in appendix 1 of 
subpart P of part 404 of this chapter. In the case of preschoolers (age 
3 to the attainment of age 6), it may be appropriate to evaluate the 
level of severity in terms of developmental age, as in younger children. 
Examples of when we will generally find comparable severity (as defined 
in paragraph (a) of this section) and, thus, find you disabled include 
the following situations described in paragraphs (c)(2) (i) through (ii) 
of this section. However, the guidance provided by these examples for 
evaluating older children and young adolescents is not intended to be a 
standard by which all cases must be judged. Each case must be evaluated 
on its own merits using the principles and guidelines of all the 
regulations addressing childhood disability.
    (i) You are functioning at the marked level in one domain or 
behavior (e.g., in the domain of social functioning, you are generally 
unable to maintain age-appropriate relationships with peers and adults, 
with frequent serious conflicts with your family, classmates, and 
teachers; or in the domain of motor functioning, your range of motion in 
your elbows, wrists, and fingers is limited by less than 50 percent and

[[Page 733]]

you have difficulty writing, typing, picking up and handling small 
objects, carrying, reaching, and engaging in physical activities which 
rely heavily on the use of the upper extremities), and you are 
functioning at the moderate level in another domain or behavior (e.g., 
in the domain of personal/behavioral functioning, you are frequently 
unable to perform self-care activities independently); or
    (ii) You are functioning at the moderate level in three areas (e.g., 
in the domain of cognitive functioning, you have a valid full scale IQ 
of 74; in the domain of social functioning you have limited age-
appropriate relationships with peers and adults, with occasional serious 
conflicts with family, classmates, teachers, and others; and with 
respect to the behavior of concentration, persistence and pace, you are 
frequently unable to complete age-appropriate complex tasks, and 
occasionally unable to perform simple age-appropriate tasks adequately).
    (d) How we evaluate older adolescents, from age 16 to attainment of 
age 18--(1) General. As we explain in Sec. 416.924d(j), children aged 16 
to 18 are closely approaching adulthood and can be evaluated in terms 
that are the same as, or similar to, those used for the evaluation of 
the youngest adults. Children in this age range who do not have 
impairment-related limitations are ordinarily expected to be able to do 
the kinds of physical and mental activities expected of individuals who 
are at least 18 years old.
    (i) The discussions in this section are predicated on the foregoing 
principles. They describe limitations of physical and mental functions 
that are associated with, or related to, functions in the workplace, as 
demonstrated by a child's performance of age-appropriate activities in 
age-appropriate context, such as school, part-time or full-time work, 
vocational programs, and organized activities. (See also 
Sec. 416.924d(j).)
    (ii) As in the examples for younger children, the guidance for 
evaluating older adolescents is not intended to be a standard by which 
all cases must be judged. Each case must be evaluated on its own merits 
using the principles and guidelines of all of the regulations addressing 
childhood disability.
    (2) Mental functions. Based on the profile of your activities and 
functioning in the relevant domains and behavior of cognition, 
communication, social functioning, personal/behavioral functioning, and 
your concentration, persistence, and pace in age-appropriate activities, 
we will consider your mental capacities to perform on a sustained basis 
(i.e., 8 hours a day, 5 days a week) the general kinds of mental 
activities that we evaluate for adults. We will consider such things as 
your ability to understand, carry out, and remember simple instructions; 
to maintain attention for extended periods of time; to use judgment; to 
make simple decisions; to take necessary safety precautions; to respond 
appropriately to supervision and peers (e.g., by being able to accept 
instructions and criticism, by not requiring special supervision, and by 
not being unduly distracted by your peers or unduly distracting to them 
in a school or work setting); and dealing with changes in your routine 
school or work setting. (See also, Sec. 416.924d(j).)
    (3) Physical functions. Based on the profile of your activities in 
the relevant domain of motor functioning, and your concentration, 
persistence, and pace in age-appropriate activities, we will consider 
your physical capacity to perform on a sustained basis (i.e., 8 hours a 
day, 5 days a week) the types and ranges of exertional and nonexertional 
activities that we evaluate for adults; e.g., sitting, standing, 
walking, lifting, carrying, pushing, pulling, reaching, handling, 
manipulating, seeing, hearing, and speaking. (See also, 
Sec. 416.924d(j).)
    (4) Evaluation. If an individualized functional assessment shows 
that you experience a substantial loss or deficit of capacity to perform 
the age-appropriate mental or physical activities described, we will 
find that your impairment(s) seriously interferes with your ability to 
function independently, appropriately, and effectively in an age-
appropriate manner, and that it has substantially reduced your ability 
to acquire the skills needed to assume roles reasonably expected of 
adults. Therefore, we will conclude that you have an impairment(s) that 
is comparable in severity to an impairment

[[Page 734]]

that would disable an adult, and that you are disabled.
    (i) The term ``substantial loss or deficit'' is not a precise 
number, percentage, or quantitative measure.
    (ii) Substantial loss or deficit means that you are unable to meet 
the basic physical demands of at least sedentary work (as defined in 
Sec. 416.967(a)); or you are unable to meet the basic mental demands of 
at least unskilled work (as defined in Sec. 416.968(a)); or that you 
have an impairment(s) that would severely limit the potential 
occupational base of a person age 18 through 45 and that would justify a 
finding of inability to perform other work even for a person with 
favorable age, education, and work experience (see Secs. 416.969, 
416.969a, and appendix 2 to subpart P of part 404 of this chapter).

[58 FR 47584, Sept. 9, 1993]

    Effective Date Note:  At 62 FR 6424, Feb. 11, 1997, Sec. 416.924e 
was removed, effective Apr. 14, 1997.

                         Medical Considerations



Sec. 416.925  Listing of Impairments in appendix 1 of subpart P of part 404 of this chapter.

    (a) Purpose of the Listing of Impairments. The Listing of 
Impairments describes, for each of the major body systems, impairments 
that are considered severe enough to prevent an adult from doing any 
gainful activity or, for a child, that causes marked and severe 
functional limitations. Most of the listed impairments are permanent or 
expected to result in death, or a specific statement of duration is 
made. For all others, the evidence must show that the impairment has 
lasted or is expected to last for a continuous period of at least 12 
months.
    (b) Adult and childhood diseases. The Listing of Impairments 
consists of two parts:
    (1) Part A contains medical criteria that apply to adult persons age 
18 and over. The medical criteria in part A may also be applied in 
evaluating impairments in persons under age 18 if the disease processes 
have a similar effect on adults and younger persons.
    (2) Part B contains additional medical criteria that apply only to 
the evaluation of impairments of persons under age 18. Certain criteria 
in part A do not give appropriate consideration to the particular 
effects of the disease processes in childhood; i.e., when the disease 
process is generally found only in children or when the disease process 
differs in its effect on children than on adults. Additional criteria 
are included in part B, and the impairment categories are, to the extent 
possible, numbered to maintain a relationship with their counterparts in 
part A. In evaluating disability for a person under age 18, part B will 
be used first. If the medical criteria in part B do not apply, then the 
medical criteria in part A will be used. Although the severity criteria 
in Part B of the Listing of Impairments are expressed in different ways 
for different impairments, the level of severity for impairments listed 
in part B is intended to be the same as that expressed in the functional 
severity criteria of the childhood mental disorders listings. (See 
listings 112.01 ff. of appendix 1 of subpart P of part 404 of this 
chapter.) Therefore, in general, a child's impairment(s) is of 
``listing-level severity'' if it causes marked limitations in two broad 
areas of functioning or extreme limitations in one such area. (See 
Sec. 416.926a for definition of the terms marked and extreme as they 
apply to children.) However, when we decide whether your impairment(s) 
meets the requirements for any listed impairment, we will decide that 
your impairment is of ``listing-level severity'' even if it does not 
result in marked limitations in two broad areas of functioning, or 
extreme limitations in one such area, if the listing that we apply does 
not require such limitations to establish that an impairment(s) is 
disabling.
    (c) How to use the Listing of Impairments. Each section of the 
Listing of Impairments has a general introduction containing definitions 
of key concepts used in that section. Certain specific medical findings, 
some of which are required in establishing a diagnosis or in confirming 
the existence of an impairment for the purpose of this Listing, are also 
given in the narrative introduction. If the medical findings needed to 
support a diagnosis are not given in the introduction or elsewhere in 
the listing, the diagnosis must still be established on the basis of 
medically

[[Page 735]]

acceptable clinical and laboratory diagnostic techniques. Following the 
introduction in each section, the required level of severity of 
impairment is shown under ``Category of Impairments'' by one or more 
sets of medical findings. The medical findings consist of symptoms, 
signs, and laboratory findings.
    (d) Diagnoses of impairments. We will not consider your impairment 
to be one listed in appendix 1 of subpart P of part 404 of this chapter 
solely because it has the diagnosis of a listed impairment. It must also 
have the findings shown in the Listing for that impairment.
    (e) Addiction to alcohol or drugs. If you have a condition diagnosed 
as addiction to alcohol or drugs, this will not, by itself, be a basis 
for determining whether you are, or are not, disabled. As with any other 
medical condition, we will decide whether you are disabled based on 
symptoms, signs, and laboratory findings.
    (f) Symptoms as criteria of listed impairment(s). Some listed 
impairment(s) include symptoms usually associated with those 
impairment(s) as criteria. Generally, when a symptom is one of the 
criteria in a listed impairment, it is only necessary that the symptom 
be present in combination with the other criteria. It is not necessary, 
unless the listing specifically states otherwise, to provide information 
about the intensity, persistence or limiting effects of the symptom as 
long as all other findings required by the specific listing are present.

[45 FR 55621, Aug. 20, 1980, as amended at 56 FR 57944, Nov. 14, 1991; 
62 FR 6424, Feb. 11, 1997; 62 FR 13539, Mar. 21, 1997]

    Effective Date Note:  At 62 FR 6424, Feb. 11, 1997, Sec. 416.925, 
was amended by revising paragraph (a) and adding five sentences to the 
end of paragraph (b)(2), effective Apr. 14, 1997. For the convenience of 
the user, the superseded text is set forth as follows:

Sec. 416.925  Listing of Impairments in appendix 1 of subpart P of part 
          404 of this chapter.

    (a) Purpose of the Listing of Impairments. The Listing of 
Impairments describes, for each of the major body systems, impairments 
which are considered severe enough to prevent a person from doing any 
gainful activity. Most of the listed impairments are permanent or 
expected to result in death, or a specific statement of duration is 
made. For all others, the evidence must show that the impairment has 
lasted or is expected to last for a continuous period of at least 12 
months.

                                * * * * *



Sec. 416.926  Medical equivalence for adults and children.

    (a) How medical equivalence is determined. We will decide that your 
impairment(s) is medically equivalent to a listed impairment in appendix 
1 of subpart P of part 404 of this chapter if the medical findings are 
at least equal in severity and duration to the listed findings. We will 
compare the symptoms, signs, and laboratory findings about your 
impairment(s), as shown in the medical evidence we have about your 
claim, with the corresponding medical criteria shown for any listed 
impairment. When we make a finding regarding medical equivalence, we 
will consider all relevant evidence in your case record. Medical 
equivalence can be found in two ways:
    (1)(i) If you have an impairment that is described in the Listing of 
Impairments in appendix 1 of subpart P of part 404 of this chapter, 
but--
    (A) You do not exhibit one or more of the medical findings specified 
in the particular listing, or
    (B) You exhibit all of the medical findings, but one or more of the 
findings is not as severe as specified in the listing;
    (ii) We will nevertheless find that your impairment is medically 
equivalent to that listing if you have other medical findings related to 
your impairment that are at least of equal medical significance.
    (2) If you have an impairment that is not described in the Listing 
of Impairments in appendix 1, or you have a combination of impairments, 
no one of which meets or is medically equivalent to a listing, we will 
compare your medical findings with those for closely analogous listed 
impairments. If the medical findings related to your impairment(s) are 
at least of equal medical significance to those of a listed impairment, 
we will find that your impairment(s) is medically equivalent to the 
analogous listing.

[[Page 736]]

    (b) Medical equivalence must be based on medical findings. We will 
always base our decision about whether your impairment(s) is medically 
equal to a listed impairment on medical evidence only. Any medical 
findings in the evidence must be supported by medically acceptable 
clinical and laboratory diagnostic techniques. We will also consider the 
medical opinion given by one or more medical or psychological 
consultants designated by the Commissioner in deciding medical 
equivalence. (See Sec. 416.1016.)
    (c) Who is a designated medical or psychological consultant. A 
medical or psychological consultant designated by the Commissioner 
includes any medical or psychological consultant employed or engaged to 
make medical judgments by the Social Security Administration, the 
Railroad Retirement Board, or a State agency authorized to make 
disability determinations. A medical consultant must be a physician. A 
psychological consultant used in cases where there is evidence of a 
mental impairment must be a qualified psychologist. (See Sec. 416.1016 
for the qualifications we consider necessary for a psychologist to be a 
consultant.)
    (d) Responsibility for determining medical equivalence. In cases 
where the State agency or other designee of the Commissioner makes the 
initial or reconsideration disability determination, a State agency 
medical or psychological consultant or other designee of the 
Commissioner (see Sec. 416.1016) has the overall responsibility for 
determining medical equivalence. For cases in the disability hearing 
process or otherwise decided by a disability hearing officer, the 
responsibility for determining medical equivalence rests with either the 
disability hearing officer or, if the disability hearing officer's 
reconsideration determination is changed under Sec. 416.1418, with the 
Associate Commissioner for Disability or his or her delegate. For cases 
at the Administrative Law Judge or Appeals Council level, the 
responsibility for deciding medical equivalence rests with the 
Administrative Law Judge or Appeals Council.

[45 FR 55621, Aug. 20, 1980, as amended at 52 FR 33928, Sept. 9, 1987; 
56 FR 5561, Feb. 11, 1991; 62 FR 6424, Feb. 11, 1997; 62 FR 13538, Mar. 
21, 1997]

    Effective Date Note 1:  At 62 FR 6424, Feb. 11, 1997, Sec. 416.926 
was amended by revising the section heading, paragraph (a), the last 
sentence of paragraph (b), and the first sentence of paragraph (c), and 
by adding paragraph (d), effective Apr. 14, 1997. For the convenience of 
the user, the superseded text is set forth as follows:

Sec. 416.926  Medical equivalence for adults and childen.

    (a) How medical equivalence is determined. We will decide that your 
impairment(s) is medically equivalent to a listed impairment in appendix 
1 of subpart P of part 404 of this chapter if the medical findings are 
at least equal in severity and duration to the listed findings. We will 
compare the symptoms, signs, and laboratory findings about your 
impairment(s), as shown in the medical evidence we have about your 
claim, with the medical criteria shown with the listed impairment. If 
your impairment is not listed, we will consider the listed impairment 
most like your impairment to decide whether your impairment is medically 
equal. If you have more than one impairment, and none of them meets or 
equals a listed impairment, we will review the symptoms, signs, and 
laboratory findings about your impairments to determine whether the 
combination of your impairments is medically equal to any listed 
impairment.
    (b) * * * We will also consider the medical opinion given by one or 
more medical or psychological consultants designated by the Secretary in 
deciding medical equivalence. (See Sec. 416.1016.)
    (c) Who is a designated medical or psychological consultant. A 
medical or psychological consultant designated by the Secretary includes 
any medical or psychological consultant employed or engaged to make 
medical judgments by the Social Security Administration, the Railroad 
Retirement Board, or a State agency authorized to make disability 
determinations. * * *

                                * * * * *

    Effective Date Note 2: At 62 FR 13538, Mar. 21, 1997, Sec. 416.926 
was amended by correcting paragraph (a)(1), effective Apr. 14, 1997.

[[Page 737]]



Sec. 416.926a  Functional equivalence for children

    (a) General. If your impairment or combination of impairments does 
not meet, or is not medically equivalent in severity to, any listed 
impairment in appendix 1 of subpart P of part 404 of this chapter, we 
will assess all functional limitations caused by your impairment(s), 
i.e., what you cannot do because of your impairment(s), to determine if 
your impairment(s) is functionally equivalent in severity to any listed 
impairment that includes disabling functional limitations in its 
criteria. While all possible impairments are not addressed within the 
Listing of Impairments, within the listed impairments are all the 
physical and mental functional limitations, i.e., what a child cannot do 
as a result of an impairment, that produce marked and severe functional 
limitations. If the functional limitation(s) caused by your 
impairment(s) is the same as the disabling functional limitation(s) 
caused by a listed impairment, we will find that your impairment(s) is 
equivalent in severity to that listed impairment, even if your 
impairment(s) is not medically related to the listed impairment. When we 
make a determination or decision using this rule, the primary focus will 
be on whether your functional limitations are disabling, as long as 
there is a direct, medically determinable cause for these limitations. 
As with any disabling impairment, the duration requirement must also be 
met (see Secs. 416.909 and 416.924(a)).
    (b) How we determine functional equivalence. We will compare any 
functional limitations resulting from your impairment(s) with the 
disabling functional limitations of any listed impairment in part A or 
part B of the Listing that includes the same functional limitations. The 
listing we use for comparison need not be medically related to your 
impairment(s). In paragraphs (b)(1) through (b)(4) of this section we 
explain the methods we may use to decide that your impairment(s) is 
functionally equivalent in severity to a listing. There is no set order 
in which we must consider these methods and we may not consider them all 
if we find that your impairment(s) is functionally equivalent in 
severity to a listed impairment. We will use any method that is 
appropriate to, or best describes, your impairment(s) and functional 
limitations. However, we will consider all of the methods before we 
determine that your impairment(s) is not functionally equivalent in 
severity to any listed impairment. At the initial and reconsideration 
levels (except when a disability hearing officer makes the 
reconsideration determination), we will also complete a standard form, 
Form SSA-538, Childhood Disability Evaluation Form, to show how we 
determined whether your impairment(s) is functionally equivalent in 
severity to a listed impairment. (See Sec. 416.924(g).)
    (1) Limitation of specific functions. We may find that your 
impairment(s) is functionally equivalent in severity to a listed 
impairment because of extreme limitation of one specific function, such 
as walking or talking. (See paragraph (c) of this section for an 
explanation of the term ``extreme.'') Some listings also include 
criteria requiring limitation of more than one specific function, such 
as limitations in walking and talking; each limitation in itself is not 
enough to show disability, but the combination of limitations 
establishes marked and severe functional limitations. If you have a 
limitation of a combination of specific functions that are the same as 
those in such a listed impairment, we will find that your impairment(s) 
is functionally equivalent in severity to that listing.
    (2) Broad areas of development or functioning. Instead of looking at 
limitation of specific functions, we may evaluate the effects of your 
impairment(s) in broad areas of development or functioning, such as 
social functioning, motor functioning, or personal functioning (i.e., 
self-care) and determine if your functional limitations are equivalent 
in severity to the disabling functional limitations in listing 112.12 or 
listing 112.02. If you have extreme limitations in one area of 
functioning or marked limitation in two areas of functioning, we will 
find that your impairment(s) is functionally equivalent in severity to a 
listed impairment. We explain the broad areas of development or 
functioning we consider and what

[[Page 738]]

the terms ``extreme'' and ``marked'' mean in paragraph (c) of this 
section.
    (3) Episodic impairments. If you have a chronic impairment(s) that 
is characterized by frequent illnesses or attacks, or by exacerbations 
and remissions, we may evaluate your functional limitations using the 
methods in paragraphs (b)(1) and (b)(2) of this section. However, your 
functional limitations may vary and we may not be able to use the 
methods in paragraphs (b)(1) and (b)(2) of this section. Instead, we may 
compare your functional limitation(s) to those in any listing for a 
chronic impairment with similar episodic criteria to determine if your 
impairment(s) has such a serious impact on your functioning over time 
that it is functionally equivalent in severity to one of those listings. 
Limitations that are characteristic of episodic impairments are not 
necessarily related to a single, specific function. Episodes of 
disabling functional limitations may occur with specified frequency 
despite treatment. If your episodic impairment(s) produces disabling 
functional limitations that are the same as the disabling functional 
limitations of a listed impairment with similar episodic criteria, we 
will find that you are disabled even though you may be able to function 
adequately between episodes.
    (4) Limitations related to treatment or medication effects. Some 
impairments require treatment over a long period of time (i.e., at least 
a year) and the treatment itself (e.g., multiple surgeries) causes 
marked and severe functional limitations. Marked and severe functional 
limitations may also result from the combined effects of limitations 
caused by ongoing treatment and limitations caused by an impairment(s). 
In many cases, we will be able to evaluate such limitations using the 
methods for evaluating specific functions or broad areas of development 
or functioning in paragraphs (b)(1) and (b)(2) of this section. But we 
may also compare your functional limitations(s) to criteria in listings 
based on treatment (including side effects of medication) that is itself 
disabling or that contributes to functional limitations. If treatment of 
your impairment(s) produces functional limitations that are the same as 
the disabling functional limitations of a listed impairment, we will 
find that your impairment(s) is functionally equivalent in severity to 
that listing.
    (c) Broad areas of development or functioning. When we determine 
functional equivalence based on broad areas of development or 
functioning, we will evaluate the functional effects of your 
impairment(s) in several areas of development or functioning to 
determine if your functional limitations are equivalent in severity to 
the disabling functional limitations of listing 112.12 or listing 
112.02. However, instead of referring to the areas of development or 
functioning in those listings, we will refer to the areas of development 
or functioning described in paragraphs (c)(4) and (c)(5) of this 
section. (We describe the areas in general terms in paragraph (c)(4) and 
then in detail as they apply to specific age groups in paragraph 
(c)(5).) If you have marked limitations in two areas of development or 
functioning, or extreme limitation in one area, we will find that your 
impairment(s) is functionally equivalent in severity to listing 112.12 
or listing 112.02, even if your impairment(s) is a physical 
impairment(s) or a combination of physical and mental impairments. We 
explain the meaning of the terms ``marked limitation'' and ``extreme 
limitation'' in paragraph (c)(3) of this section.
    (1) How we use the areas of development or functioning. (i) When we 
make a finding about functional equivalence, we will consider the extent 
of your functional limitations in the areas affected by your 
impairment(s). We will also consider how your limitation(s) in one area 
affects your development or functioning in other areas.
    (ii) In some children, some physical impairments will be evaluated 
most appropriately only in the areas of motor development or motor 
functioning. In others, the effects will be more global. If you have a 
physical impairment(s) that causes a functional limitation(s) not 
addressed solely in the area of motor development or motor

[[Page 739]]

functioning, we will consider the effects of your impairment in all 
relevant areas in which you have limitations from the impairment(s). A 
physical impairment(s) may cause limitations in any or all of the areas 
of development or functioning.
    (2) Other considerations. When we assess your functioning, we will 
consider all information in your case record that can help us determine 
the effect of your impairment(s) on your physical and mental 
functioning. We will consider the nature of your impairment(s), your 
age, your ability to be tested given your age, and other relevant 
factors (see Secs. 416.924a through 416.924c). We will consider whether 
any help that you need from others to enable you to do any particular 
activity (e.g., dressing) is appropriate to your age.
    (3) Definitions of ``marked'' and ``extreme'' limitations--(i) 
Marked limitation means--(A) When standardized tests are used as the 
measure of functional abilities, a valid score that is two standard 
deviations or more below the norm for the test (but less than three 
standard deviations); or
    (B) For children from birth to attainment of age 3, functioning at 
more than one-half but not more than two-thirds of chronological age; or
    (C) For children from age 3 to attainment of age 18, ``more than 
moderate'' and ``less than extreme.'' Marked limitation may arise when 
several activities or functions are limited or even when only one is 
limited as long as the degree of limitation is such as to interfere 
seriously with the child's functioning.
    (ii) Extreme limitation means--
    (A) When standardized tests are used as the measure of functional 
abilities, a valid score that is three standard deviations or more below 
the norm for the test; or
    (B) For children from birth to attainment of age 3, functioning at 
one-half chronological age or less; or
    (C) For children from birth to attainment of age 18, no meaningful 
functioning in a given area. There may be extreme limitation when 
several activities or functions are limited or even when only one is 
limited.
    (4) Areas of development or functioning. The following are the areas 
of development or functioning that may be addressed in a finding of 
functional equivalence.
    (i) Cognition/communication: The ability or inability to learn, 
understand, and solve problems through intuition, perception, verbal and 
nonverbal reasoning, and the application of acquired knowledge; the 
ability to retain and recall information, images, events, and procedures 
during the process of thinking. The ability or inability to comprehend 
and produce language (e.g., vocabulary and grammar) in order to 
communicate (e.g., to respond, as in answering questions, following 
directions, acknowledging the comments of others; to request, as in 
demanding action, meeting needs, seeking information, requesting 
clarification, initiating interaction; to comment, as in sharing 
information, expressing feelings and ideas, providing explanations, 
describing events, maintaining interaction, using hearing that is 
adequate for conversation, and using speech (articulation, voice, and 
fluency) that is intelligible.
    (ii) Motor: The ability or inability to use gross and fine motor 
skills to relate to the physical environment and serve one's physical 
purposes. It involves general mobility, balance, and the ability to 
perform age-appropriate physical activities involved in play, physical 
education, sports, and physically related daily activities other than 
self-care (see Personal area).
    (iii) Social: The ability or inability to form and maintain 
relationships with other individuals and with groups; e.g., parents, 
siblings, neighborhood children, classmates, teachers. Ability is 
manifested in responding to and initiating social interaction with 
others, sustaining relationships, and participating in group activities. 
It involves cooperative behaviors, consideration for others, awareness 
of others' feelings, and social maturity appropriate to a child's age. 
Ability is also manifested in the absence of inappropriate externalized 
actions (e.g., running away, physical aggression--but not self-injurious 
actions, which are evaluated in the personal area of functioning), and 
the absence of inappropriate

[[Page 740]]

internalized actions (e.g., social isolation, avoidance of interpersonal 
activities, mutism). Social functioning in play, school, and work 
situations may involve interactions with adults, including responding 
appropriately to persons in authority (e.g., teachers, coaches, 
employers) or cooperative behaviors involving other children.
    (iv) Responsiveness to stimuli (birth to age 1 only): The ability or 
inability to respond appropriately to stimulation (visual, auditory, 
tactile, vestibular, proprioceptive).
    (v) Personal (age 3 to age 18 only): The ability or inability to 
help yourself and to cooperate with others in taking care of your 
personal needs, health, and safety (e.g., feeding, dressing, toileting, 
bathing; maintaining personal hygiene, proper nutrition, sleep, health 
habits; adhering to medication or therapy regimens; following safety 
precautions).
    (vi) Concentration, persistence, or pace (age 3 to age 18 only): The 
ability or inability to attend to, and sustain concentration on, an 
activity or task, such as playing, reading, or practicing a sport, and 
the ability to perform the activity or complete the task at a reasonable 
pace.
    (5) Descriptions for specific age groups--(i) Newborns and young 
infants (birth to attainment of age 1). Children in this age group are 
evaluated in terms of four areas of development. The following are 
general descriptions of development typical of this age group.
    (A) Cognitive/communicative development (birth to attainment of age 
1): Your ability or inability to show interest in, and actively seek 
interaction with, your environment, first randomly, then through trial-
and-error, and finally with deliberate and purposeful intent. Your 
ability or inability to first recognize, and then attach meaning to, 
routine situations and events and gradually to everyday sounds and 
eventually to familiar words. Your ability or inability to vocalize, 
both imitatively and spontaneously, using vowels and later consonants, 
first in isolation, and then in increasingly longer babbling strings.
    (B) Motor development (birth to attainment of age 1): Your ability 
or inability to explore and manipulate your environment by moving your 
body and by using your hands; e.g., by increasingly controlling position 
and movement of head, sitting with support, creeping or crawling, 
pulling to standing position, walking with hand held, standing alone 
briefly, waving small rattle, reaching for or grasping objects, 
transferring toys, picking up small objects, attempting to scribble.
    (C) Social development (birth to attainment of age 1): Your ability 
or inability to form and maintain intimate relationships, and to respond 
to, and eventually initiate reciprocal interactions with, your primary 
caregivers (e.g., through games such as pat-a-cake, peek-a-boo, so big). 
Your ability or inability to begin to regulate the behavior of others 
through intentional behavior (e.g., gestures, vocalizations). Your 
ability or inability to recognize and produce a variety of emotional 
cues (e.g., facial expressions, vocal tone changes).
    (D) Responsiveness to stimuli (birth to attainment of age 1): Your 
ability or inability to form patterns of self-regulation, i.e., to 
recognize internal cues (e.g., hunger, pain), and to organize external 
experiences (e.g., light, sound, temperature, movement), and to regulate 
your reactions to them (e.g., brightening in response to sights and 
sounds, enjoying being touched or stroked or held, enjoying gentle 
movement in space (``rock-a-bye-baby'')).
    (ii) Older infants and toddlers (age 1 to attainment of age 3): 
Children in this age group are evaluated in terms of three areas of 
development. The following are general descriptions of development 
typical of this age group.
    (A) Cognitive/communicative development (age 1 to attainment of age 
3): Your ability or inability to understand by responding to 
increasingly complex requests, instructions, and questions; to refer to 
yourself and things around you by pointing and eventually by naming; to 
form concepts and to solve simple problems through purposeful 
experimentation (e.g., disassembling toys), imitation (immediate and 
delayed), and constructive play (e.g., putting things in and out of 
containers, building with blocks, exploring spaces); to demonstrate your 
knowledge of objects, actions, and situations you have

[[Page 741]]

encountered through pretend play activities; to spontaneously 
communicate your wishes or needs by using gestures, an increasing number 
of intelligible words, and eventually grammatically correct simple 
sentences and questions with increasingly rich and broad vocabulary.
    (B) Motor development (age 1 to attainment of age 3): Your ability 
or inability to move in your environment using your body with steadily 
increasing dexterity and independence from support by others, and your 
increasing ability to manipulate small objects and to use your hands to 
do, or to get, something that you want or need.
    (C) Social development (age 1 to attainment of age 3): Your ability 
or inability to exhibit normal dependence upon, and intimacy with, your 
primary caregivers, as well as increasing independence from them; to 
initiate and respond to a variety of emotional cues; to regulate and 
organize emotions and behaviors. Your ability or inability to be 
interested in initiating and maintaining interactions with others, first 
during brief, yet frequent encounters, and gradually increasing to 
longer, sustained ones. Your ability or inability to show interest in, 
initially watch, then play alongside, and eventually interact with 
similarly aged peers.
    (iii) Preschool children (age 3 to attainment of age 6). Children in 
this age group are evaluated in terms of five areas of development. The 
following are general descriptions of development typical of this age 
group.
    (A) Cognitive/communicative development (age 3 to attainment of age 
6): Your ability or inability to learn, understand, and solve problems 
through intuition, perception, verbal and nonverbal reasoning, and the 
application of acquired knowledge; your ability or inability to retain 
and recall information, images, events, and procedures during the 
process of thinking (as in the development of readiness skills for 
formal learning (e.g., learning letters, shapes, colors) and skills for 
daily living (e.g., putting toys in proper places)). Your ability or 
inability to communicate by expressing your needs, feelings, and 
preferences; by telling, requesting, predicting, and relating 
information; by describing actions and functions; by providing 
explanations; by following and giving directions; and by engaging in 
conversation in a spontaneous, interactive, and increasingly 
intelligible manner, using increasingly complex vocabulary and grammar.
    (B) Motor development (age 3 to attainment of age 6): Your ability 
or inability to move and use your arms and legs in increasingly more 
intricate and coordinated activity, and your ability or inability to use 
your hands with increasing coordination to manipulate small objects 
during play (e.g., drawing, using building blocks, constructing puzzles) 
and physically related daily activities other than self-care (see 
Personal area).
    (C) Social development (age 3 to attainment of age 6): Your ability 
or inability to initiate social exchanges, to organize and regulate your 
emotions and behaviors, and to respond to your social environment 
through appropriate and increasingly complex interactions, such as 
showing affection, sharing, and helping; your ability to relate to 
caregivers with increasing independence, to choose your own friends, and 
to play cooperatively with other children, one-at-a-time or in a group.
    (D) Personal development (age 3 to attainment of age 6): Your 
ability or inability to help yourself and to cooperate with others in 
taking care of your personal needs, health, and safety (e.g., bathing, 
dressing, maintaining sleep habits, crossing the street with an adult).
    (E) Concentration, persistence, or pace (age 3 to attainment of age 
6): Your ability or inability to engage in an activity, and to sustain 
the activity for a period of time at a reasonable pace (e.g., playing a 
simple board game).
    (iv) School-age children (age 6 to attainment of age 12). Children 
in this age group are evaluated in terms of five areas of functioning. 
The following are general descriptions of functioning typical of this 
age group.
    (A) Cognitive/communicative functioning (age 6 to attainment of age 
12): Your ability or inability to learn, understand, and solve problems 
through intuition, perception, verbal and nonverbal reasoning, and the 
application of acquired knowledge; the ability to retain and recall 
information, images,

[[Page 742]]

events, and procedures during the process of thinking, as in formal 
learning situations (e.g., reading, class discussions) and in daily 
living (e.g., telling time, making change). Your ability or inability to 
comprehend and produce language (e.g., vocabulary, grammar) in order to 
communicate in social conversation (e.g., to express feelings, meet 
needs, seek information, describe events, share stories), and in 
learning situations (e.g., to exchange information and ideas with peers 
and family or with groups such as your school classes) in a spontaneous, 
interactive, sustained, and intelligible manner, using increasingly 
complex vocabulary and grammar.
    (B) Motor functioning (age 6 to attainment of age 12): Your ability 
or inability to use fine and gross motor skills in order to engage in 
the physical activities involved in normal mobility, school work, play, 
physical education, sports, and other physically related daily 
activities other than self-care (see Personal area).
    (C) Social functioning (age 6 to attainment of age 12): Your ability 
or inability to play alone, with another child, and in a group; to 
initiate and develop friendships; to respond to your social environments 
through appropriate and increasingly complex interpersonal behaviors, 
such as empathizing with others and tolerating differences; and to 
relate appropriately to individuals and in group situations (e.g., 
siblings, parents or caregivers, peers, teachers, school classes, 
neighborhood groups).
    (D) Personal functioning (age 6 to attainment of age 12): Your 
ability or inability to help yourself and to cooperate with others in 
taking care of your personal needs, health, and safety (e.g., eating, 
dressing, maintaining personal hygiene, following safety precautions).
    (E) Concentration, persistence, or pace (age 6 to attainment of age 
12): Your ability or inability to engage in an activity, and to sustain 
the activity for a period of time and at a reasonable pace.
    (v) Adolescents (age 12 to attainment of age 18). Children in this 
age group are evaluated in terms of five areas of functioning. The 
following are general descriptions of functioning typical of this age 
group.
    (A) Cognitive/communicative functioning (age 12 to attainment of age 
18): Your ability or inability to learn, understand, and solve problems 
through intuition, perception, verbal and nonverbal reasoning, and the 
application of acquired knowledge; the ability or inability to retain 
and recall information, images, events, and procedures during the 
process of thinking, as in formal learning situations (e.g., 
composition, classroom discussion) and in daily living (e.g., using the 
post office, using public transportation). Your ability or inability to 
comprehend and produce language (e.g., vocabulary, grammar) in order to 
communicate in conversation (e.g., to express feelings, meet needs, seek 
information, describe events, tell stories), and in learning situations 
(e.g., to obtain and convey information and ideas) both spontaneously 
and interactively, in all communication environments (e.g., home, 
classroom, game fields, extra-curricular activities, job), and with all 
communication partners (e.g., parents, siblings, peers, school classes, 
teachers, employers).
    (B) Motor functioning (age 12 to attainment of age 18): Your ability 
or inability to use fine and gross motor skills in order to engage in 
the physical activities involved in normal mobility, school work, play, 
physical education, sports, and other physically related daily 
activities other than self-care (see Personal area).
    (C) Social functioning (age 12 to attainment of age 18): Your 
ability or inability to initiate and develop friendships, to relate 
appropriately to individual peers and adults and to peer and adult 
groups, and to reconcile conflicts between yourself and peers or family 
members or other adults outside your family.
    (D) Personal functioning (age 12 to attainment of age 18): Your 
ability or inability to help yourself in taking care of your personal 
needs, health, and safety (e.g., dressing, bathing, doing laundry, 
adhering to medication or therapy regimens).
    (E) Concentration, persistence, or pace (age 12 to attainment of age 
18): Your ability or inability to engage in an activity, and to sustain 
the activity for a

[[Page 743]]

period of time and at a reasonable pace.
    (d) Examples of impairments that are functionally equivalent in 
severity to a listed impairment. The following are some examples of 
impairments and limitations that are functionally equivalent to 
listings. Findings of equivalence based on the disabling functional 
limitations of a child's impairment(s) are not limited to the examples 
in this paragraph (d), because these examples do not describe all 
possible effects of impairments that might be found to be functionally 
equivalent in severity to a listed impairment. As with any disabling 
impairment, the duration requirement must also be met (see Secs. 416.909 
and 416.924(a)).
    (1) Documented need for major organ transplant (e.g., liver).
    (2) Any condition that is disabling at the time of onset, requiring 
a series of staged surgical procedures within 12 months after onset as a 
life-saving measure or for salvage or restoration of function, and such 
major function is not restored or is not expected to be restored within 
12 months after onset of the condition.
    (3) Frequent need for a life-sustaining device (e.g., central venous 
alimentation catheter), at home or elsewhere.
    (4) Ambulation possible only with obligatory bilateral upper limb 
assistance.
    (5) Any physical impairment(s) or combination of physical and mental 
impairments causing marked restriction of age-appropriate personal 
functioning and marked restriction in motor functioning.
    (6) Any physical impairment(s) or combination of physical and mental 
impairments causing complete inability to function independently outside 
the area of one's home within age-appropriate norms.
    (7) Requirement for 24-hour-a-day supervision for medical (including 
psychological) reasons.
    (8) Infants weighing less than 1200 grams at birth, until attainment 
of 1 year of age.
    (9) Infants weighing at least 1200 but less than 2000 grams at 
birth, and who are small for gestational age, until attainment of 1 year 
of age. (Small for gestational age means a birth weight that is at or 
more than 2 standard deviations below the mean or that is below the 3rd 
growth percentile for the gestational age of the infant.)
    (10) In an infant who has not attained age 1 year, and who may be 
too young to test, any limitations caused by a physical impairment(s) or 
a combination of physical and mental impairments that causes the same 
functional limitations in listing 112.12.
    (11) Major congenital organ dysfunction which could be expected to 
result in death within the first year of life without surgical 
correction, and the impairment is expected to be disabling (because of 
residual impairment following surgery, or the recovery time required, or 
both) until attainment of 1 year of age.
    (12) Gastrostomy in a child who has not attained age 3.
    (e) Responsibility for determining functional equivalence. In cases 
where the State agency or other designee of the Commissioner makes the 
initial or reconsideration disability determination, a State agency 
medical or psychological consultant or other designee of the 
Commissioner (see Sec. 416.1016) has the overall responsibility for 
determining functional equivalence. For cases in the disability hearing 
process or otherwise decided by a disability hearing officer, the 
responsibility for determining functional equivalence rests with either 
the disability hearing officer or, if the disability hearing officer's 
reconsideration determination is changed under Sec. 416.1418, with the 
Associate Commissioner for Disability or his or her delegate. For cases 
at the Administrative Law Judge or Appeals Council level, the 
responsibility for deciding functional equivalence rests with the 
Administrative Law Judge or Appeals Council.

[62 FR 6424, Feb. 11, 1997; 62 FR 13538, 13733, Mar. 21, 1997]

    Effective Date Note 1:  At 62 FR 6424, Feb. 11, 1997, Sec. 416.926a 
was revised, effective Apr. 14, 1997. For the convenience of the user, 
the superseded text is set forth as follows:

Sec. 416.926a  Equivalence for children.

    (a) General. If you are a child and you do not have an impairment 
that meets the requirements of a listing, we will determine

[[Page 744]]

whether you have an impairment or combination of impairments that is 
equivalent in severity to any listed impairment in appendix 1 of subpart 
P of part 404, as set forth in this section. While all possible 
impairments are not addressed within the Listing of Impairments, within 
the listed impairments are all the physical and mental functional 
limitations, i.e., what a child cannot do as a result of an impairment, 
that are considered severe enough to prevent a child from functioning 
independently, appropriately, and effectively in an age-appropriate 
manner. We will compare the symptoms, signs, and laboratory findings 
about your impairment(s), including, where appropriate, any functional 
limitations that result from your medically determinable impairment(s), 
with the corresponding criteria shown for any listed impairment. When we 
make an equivalence decision, we will consider all relevant evidence in 
your case record.
    (b) How we determine the equivalence of impairments for children. 
Equivalence can be found in three ways:
    (1) If you have an impairment that is described in the Listing of 
Impairments in appendix 1 of subpart P of part 404, but:
    (i) You do not exhibit one or more of the medical findings specified 
in the particular listing, or
    (ii) You exhibit all of the medical findings, but one or more of the 
findings is not as severe as specified in the listing, we will 
nevertheless find that your impairment is equivalent to that listing if 
you have other medical findings related to your impairment that are at 
least of equal medical significance.
    (2) If you have an impairment that is not described in the Listing 
of Impairments in appendix 1, or you have a combination of impairments, 
no one of which meets or is equivalent to a listing, we will compare 
your medical findings with those for closely analogous listed 
impairments. If the findings associated with your impairment(s) are at 
least of equal medical significance to those of a listed impairment, we 
will find that your impairment(s) is equivalent to the analogous 
listing.
    (3) If we cannot find equivalence under either of the foregoing 
provisions, we will assess the overall functional limitations that 
result from your impairment(s), i.e., what you cannot do because of your 
impairment(s). If you have more than one impairment, we will consider 
the combined effects of all your impairments on your overall 
functioning. We will compare the functional limitations(s) resulting 
from your impairment(s) with the functional consequences of any listed 
impairment which includes the same functional limitations; the listing 
we choose for comparison need not be medically related to your 
impairment(s). If the functional limitation(s) resulting from your 
impairment(s) is the same as the disabling functional consequences of a 
listed impairment, we will find that your impairment(s) is equivalent to 
that listed impairment. When we make a determination or decision using 
this rule, the primary focus will be on the disabling consequences of 
your impairment(s), as long as there is a direct, medically determinable 
cause for these consequences.
    (c) Responsibility for determining equivalence. In cases where the 
State agency or other designee of the Secretary makes the initial or 
reconsideration disability determination, a State agency staff medical 
or psychological consultant or other designee of the Secretary (see 
Sec. 416.1016) has the overall responsibility for determining 
equivalence. For cases in the disability hearing process, the 
responsibility for determining equivalence rests with either the 
disability hearing officer or, if the disability hearing officer's 
reconsidered determination is changed under Sec. 416.1418, with the 
Associate Commissioner for Disability or his or her delegate. For cases 
at the Administrative Law Judge or Appeals Council level, the 
responsibility for deciding equivalence rests with the Administrative 
Law Judge or Appeals Council.
    (d) Examples of impairments of children that are functionally 
equivalent to the listings. The following are some examples of 
consequences of impairments that are functionally equivalent to listed 
impairments. The consequences of each child's impairment(s) must be 
assessed to determine whether they are functionally equivalent to those 
of a listed impairment. Findings of equivalence based on the disabling 
functional consequences of a child's impairment(s) should not be limited 
to the examples below, because these examples do not describe all the 
possible effects of impairments that might be found to be equivalent to 
a listed impairment. As with any disabling impairment, the duration 
requirement must also be met (see Secs. 416.909 and 416.924(a)).
    (1) Documented need for major organ transplant (e.g., heart, liver).
    (2) Any condition that is disabling at the time of onset, requiring 
a series of staged surgical procedures within 12 months after onset as a 
life-saving measure or for salvage or restoration of function, and such 
major function is not restored or is not expected to be restored within 
12 months after onset of the condition.
    (3) Frequent need for a life-sustaining device (e.g., central venous 
alimentation catheter), at home or elsewhere.
    (4) Marked inability to stand and walk; e.g., ambulation possible 
only with obligatory bilateral upper limb assistance.
    (5) Any physical impairment(s) or combination of physical and mental 
impairments causing marked restriction of age-appropriate activities of 
daily living and marked

[[Page 745]]

difficulties in maintaining age-appropriate social functioning.
    (6) Any physical impairment(s) or combination of physical and mental 
impairments causing complete inability to function independently outside 
the area of one's home within age-appropriate norms.
    (7) Requirement for 24-hour-a-day supervision for medical or 
behavioral reasons.
    (8) Infants weighing less than 1200 grams at birth, until attainment 
of 1 year of age.
    (9) Infants weighing at least 1200 but less than 2000 grams at 
birth, and who are small for gestational age, until attainment of 1 year 
of age. (Small for gestational age means a birth weight that is at or 
more than 2 standard deviations below the mean or that is below the 3rd 
growth percentile.)
    (10) In an infant who has not attained age 1 year, any physical 
impairment(s) or combination of physical and mental impairments that 
satisfies the requirements of Listing 112.12.
    (11) Major congenital organ dysfunction (e.g., congenital heart 
disease) which could be expected to result in death within the first 
year of life without surgical correction, and the impairment is expected 
to be disabling (because of residual impairment following surgery, or 
the recovery time required, or both) until attainment of 1 year of age.
    (12) Gastrostomy in a child who has not attained age 3.

[56 FR 5561, Feb. 11, 1991, as amended at 58 FR 47586, Sept. 9, 1993; 58 
FR 52367, Oct. 7, 1993]

    Effective Date Note 2: At 62 FR 13538, Mar. 21, 1997, Sec. 416.926a 
was amended by correcting the first sentence in paragraph (a), effective 
Apr. 14, 1997.

    Effective Date Note 3: At 62 FR 13733, Mar. 21, 1997, a number of 
word corrections were made to Sec. 416.926a, effective Apr. 14, 1997. 
The corrections have been incorporated into the text as printed above.



Sec. 416.927  Evaluating medical opinions about your impairment(s) or disability.

    (a) General. (1) If you are an adult, you can only be found disabled 
if you are unable to do any substantial gainful activity by reason of 
any medically determinable physical or mental impairment which can be 
expected to result in death or which has lasted or can be expected to 
last for a continuous period of not less than 12 months. (See 
Sec. 416.905.) If you are a child, you can be found disabled only if you 
have a medically determinable physical or mental impairment(s) that 
causes marked and severe functional limitations and that can be expected 
to result in death or that has lasted or can be expected to last for a 
continuous period of not less than 12 months. (See Sec. 416.906.) Your 
impairment must result from anatomical, physiological, or psychological 
abnormalities which are demonstrable by medically acceptable clinical 
and laboratory diagnostic techniques. (See Sec. 416.908.)
    (2) Evidence that you submit or that we obtain may contain medical 
opinions. Medical opinions are statements from physicians and 
psychologists or other acceptable medical sources that reflect judgments 
about the nature and severity of your impairment(s), includinq your 
symptoms, diagnosis and prognosis, what you can still do despite 
impairment(s), and your physical or mental restrictions.
    (b) How we consider medical opinions. In deciding whether you are 
disabled, we will always consider the medical opinions in your case 
record together with the rest of the relevant evidence we receive.
    (c) Making disability determinations. After we review all of the 
evidence relevant to your claim, including medical opinions, we make 
findings about what the evidence shows.
    (1) If all of the evidence we receive, including all medical 
opinion(s), is consistent, and there is sufficient evidence for us to 
decide whether you are disabled, we will make our determination or 
decision based on that evidence.
    (2) If any of the evidence in your case record, including any 
medical opinion(s), is inconsistent with other evidence or is internally 
inconsistent, we will weigh all of the evidence and see whether we can 
decide whether you are disabled based on the evidence we have.
    (3) If the evidence is consistent but we do not have sufficient 
evidence to decide whether you are disabled, or, if after weighing the 
evidence we decide we cannot reach a conclusion about whether you are 
disabled, we will try to obtain additional evidence under the provisions 
of Secs. 416.912 and 416.919 through 416.919h. We will request 
additional existing records, recontact your treating sources or any 
other examining sources, ask you to undergo a consultative examination 
at our expense,

[[Page 746]]

or ask you or others for more information. We will consider any 
additional evidence we receive together with the evidence we already 
have.
    (4) When there are inconsistencies in the evidence that cannot be 
resolved, or when despite efforts to obtain additional evidence the 
evidence is not complete, we will make a determination or decision based 
on the evidence we have.
    (d) How we weigh medical opinions. Regardless of its source, we will 
evaluate every medical opinion we receive. Unless we give a treating 
source's opinion controlling weight under paragraph (d)(2) of this 
section, we consider all of the following factors in deciding the weight 
we give to any medical opinion.
    (1) Examining relationship. Generally, we give more weight to the 
opinion of a source who has examined you than to the opinion of a source 
who has not examined you.
    (2) Treatment relationship. Generally, we give more weight to 
opinions from your treating sources, since these sources are likely to 
be the medical professionals most able to provide a detailed, 
longitudinal picture of your medical impairment(s) and may bring a 
unique perspective to the medical evidence that cannot be obtained from 
the objective medical findings alone or from reports of individual 
examinations, such as consultative examinations or brief 
hospitalizations. If we find that a treating source's opinion on the 
issue(s) of the nature and severity of your impairment(s) is well-
supported by medically acceptable clinical and laboratory diagnostic 
techniques and is not inconsistent with the other substantial evidence 
in your case record, we will give it controlling weight. When we do not 
give the treating source's opinion controlling weight, we apply the 
factors listed below, as well as the factors in paragraphs (d) (3) 
through (5) of this section in determining the weight to give the 
opinion. We will always give good reasons in our notice of determination 
or decision for the weight we give your treating source's opinion.
    (i) Length of the treatment relationship and the frequency of 
examination. Generally, the longer a treating source has treated you and 
the more times you have been seen by a treating source, the more weight 
we will give to the source's medical opinion. When the treating source 
has seen you a number of times and long enough to have obtained a 
longitudinal picture of your impairment, we will give the source's 
opinion more weight than we would give it if it were from a nontreating 
source.
    (ii) Nature and extent of the treatment relationship. Generally, the 
more knowledge a treating source has about your impairment(s) the more 
weight we will give to the source's medical opinion. We will look at the 
treatment the source has provided and at the kinds and extent of 
examinations and testing the source has performed or ordered from 
specialists and independent laboratories. For example, if your 
ophthalmologist notices that you have complained of neck pain during 
your eye examinations, we will consider his or her opinion with respect 
to your neck pain, but we will give it less weight than that of another 
physician who has treated you for the neck pain. When the treating 
source has reasonable knowledge of your impairment(s), we will give the 
source's opinion more weight than we would give it if it were from a 
nontreating source.
    (3) Supportability. The more a medical source presents relevant 
evidence to support an opinion, particularly medical signs and 
laboratory findings, the more weight we will give that opinion. The 
better an explanation a source provides for an opinion, the more weight 
we will give that opinion. Furthermore, because nonexamining sources 
have no examining or treating relationship with you, the weight we will 
give their opinions will depend on the degree to which they provide 
supporting explanations for their opinions. We will evaluate the degree 
to which these opinions consider all of the pertinent evidence in your 
claim, including opinions of treating and other examining sources.
    (4) Consistency. Generally, the more consistent an opinion is with 
the record as a whole, the more weight we will give to that opinion.
    (5) Specialization. We generally give more weight to the opinion of 
a specialist about medical issues related to

[[Page 747]]

his or her area of specialty than to the opinion of a source who is not 
a specialist.
    (6) Other factors. When we consider how much weight to give to a 
medical opinion, we will also consider any factors you or others bring 
to our attention, or of which we are aware, which tend to support or 
contradict the opinion.
    (e) Medical source opinions on issues reserved to the Secretary. (1) 
Opinions that you are disabled. We are responsible for making the 
determination or decision about whether you meet the statutory 
definition of disability. In so doing, we review all of the medical 
findings and other evidence that support a medical source's statement 
that you are disabled. A statement by a medical source that you are 
``disabled'' or ``unable to work'' does not mean that we will determine 
that you are disabled.
    (2) Other opinions on issues reserved to the Secretary. We use 
medical sources, including your treating source, to provide evidence, 
including opinions, on the nature and severity of your impairment(s). 
Although we consider opinions from treating and examining sources on 
issues such as whether your impairment(s) meets or equals the 
requirements of any impairment(s) in the Listing of Impairments in 
appendix 1 to subpart P of part 404 of this chapter, your residual 
functional capacity (see Secs. 416.945 and 416.946), or the application 
of vocational factors, the final responsibility for deciding these 
issues is reserved to the Secretary. We will not give any special 
significance to the source of the opinion on these issues.
    (f) Opinions of nonexamining medical and psychological consultants 
and other nonexamining physicians and psychologists. We consider all 
evidence from nonexamining physicians and psychologists to be opinion 
evidence. When we consider the opinions of nonexamining sources on the 
nature and severity of your impairments, we apply the rules set forth in 
paragraphs (a) through (e) of this section. In addition, the following 
rules apply to State agency medical and psychological consultants, and 
to medical advisors we consult in connection with administrative law 
judge hearings and Appeals Council review.
    (1) At the initial and reconsideration steps in the administrative 
review process, except in disability hearings, State agency medical and 
psychological consultants are members of the teams that make the 
determinations of disability. A State agency medical or psychological 
consultant will consider the evidence in your case record and make 
findings of fact about the medical issues, including, but not limited 
to, the existence and severity of your impairment(s), the existence and 
severity of your symptoms, whether your impairment(s) meets or equals 
the requirements for any impairment listed in appendix 1 to subpart P of 
part 404 of this chapter, and your residual functional capacity. These 
administrative findings of fact are based on the evidence in your case 
record but are not themselves evidence at these steps.
    (2) Administrative law judges are responsible for reviewing the 
evidence and making findings of fact and conclusions of law. 
Administrative law judges are not bound by any findings made by State 
agency medical or psychological consultants. However, these findings are 
considered at the hearing level. See Sec. 416.912(b)(6). When 
administrative law judges consider these findings, they will evaluate 
them using the rules set forth in paragraphs (a) through (e) of this 
section. Also, administrative law judges may ask for and consider the 
opinions of medical advisors on the nature and severity of your 
impairment(s) and whether your impairment(s) equals the requirements of 
any listed impairment in appendix 1 to subpart P of part 404 of this 
chapter.
    (3) When the Appeals Council makes a decision, it will follow the 
same rules for considering opinion evidence as administrative law judges 
follow.

[56 FR 36968, Aug. 1, 1991, as amended at 62 FR 6428, Feb. 11, 1997; 62 
FR 13538, Mar. 21, 1997]

    Effective Date Note 1:  At 62 FR 6428, Feb. 11, 1997, in 
Sec. 416.927, paragraph (a)(1) was revised, effective Apr. 14, 1997. For 
the convenience of the user, the superseded text is set forth as 
follows:

Sec. 416.927  Evaluating medical opinions about your impairment(s) or 
          disability.

    (a) General. (1) You can only be found disabled if you are unable to 
do any substantial gainful activity by reason of any medically

[[Page 748]]

determinable physical or mental impairment which can be expected to 
result in death or which has lasted or can be expected to last for a 
continuous period of not less than l2 months. See Sec. 4l6.905. Your 
impairment must result from anatomical, physiological, or psychological 
abnormalities which are demonstrable by medically acceptable clinical 
and laboratory diagnostic techniques. See Sec. 416.908.

                                * * * * *

    Effective Date Note 2: At 62 FR 13538, Mar. 21, 1997, Sec. 416.927 
was amended by correcting paragraph (a)(1), effective Apr. 14, 1997.



Sec. 416.928  Symptoms, signs, and laboratory findings.

    Medical findings consist of symptoms, signs, and laboratory 
findings:
    (a) Symptoms are your own description of your physical or mental 
impairment. If you are a child under age 18 and are unable to adequately 
describe your symptom(s), we will accept as a statement of this 
symptom(s) the description given by the person who is most familiar with 
you, such as a parent, other relative, or guardian. Your statements (or 
those of another person) alone, however, are not enough to establish 
that there is a physical or mental impairment.
    (b) Signs are anatomical, physiological, or psychological 
abnormalities which can be observed, apart from your statements 
(symptoms). Signs must be shown by medically acceptable clinical 
diagnostic techniques. Psychiatric signs are medically demonstrable 
phenomena which indicate specific abnormalities of behavior, affect, 
thought, memory, orientation and contact with reality. They must also be 
shown by observable facts that can be medically described and evaluated.
    (c) Laboratory findings are anatomical, physiological, or 
psychological phenomena which can be shown by the use of a medically 
acceptable laboratory diagnostic techniques. Some of these diagnostic 
techniques include chemical tests, electrophysiological studies 
(electrocardiogram, electroencephalogram, etc.), roentgenological 
studies (X-rays), and psychological tests.

[45 FR 55621, Aug. 20, 1980, as amended at 58 FR 47586, Sept. 9, 1993]



Sec. 416.929  How we evaluate symptoms, including pain.

    (a) General. In determining whether you are disabled, we consider 
all your symptoms, including pain, and the extent to which your symptoms 
can reasonably be accepted as consistent with the objective medical 
evidence, and other evidence. By objective medical evidence, we mean 
medical signs and laboratory findings as defined in Sec. 416.928 (b) and 
(c). By other evidence, we mean the kinds of evidence described in 
Secs. 416.912(b) (2) through (6) and 416.913 (b) (1), (4), and (5) and 
(e). These include statements or reports from you, your treating or 
examining physician or psychologist, and others about your medical 
history, diagnosis, prescribed treatment, daily activities, efforts to 
work, and any other evidence showing how your impairment(s) and any 
related symptoms affect your ability to work (or if you are a child, 
your functioning). We will consider all of your statements about your 
symptoms, such as pain, and any description you, your physician, your 
psychologist, or other persons may provide about how the symptoms affect 
your activities of daily living and your ability to work (or if you are 
a child, your functioning). However, statements about your pain or other 
symptoms will not alone establish that you are disabled; there must be 
medical signs and laboratory findings which show that you have a medical 
impairment(s) which could reasonably be expected to produce the pain or 
other symptoms alleged and which, when considered with all of the other 
evidence (including statements about the intensity and persistence of 
your pain or other symptoms which may reasonably be accepted as 
consistent with the medical signs and laboratory findings), would lead 
to a conclusion that you are disabled. In evaluating the intensity and 
persistence of your symptoms, including pain, we will consider all of 
the available evidence, including your medical history, the medical 
signs and laboratory findings and statements about how your symptoms 
affect you. (Section 416.927 explains how we consider opinions of your 
treating source and other medical opinions on the existence and severity 
of your symptoms, such as pain.) We

[[Page 749]]

will then determine the extent to which your alleged functional 
limitations and restrictions due to pain or other symptoms can 
reasonably be accepted as consistent with the medical signs and 
laboratory findings and other evidence to decide how your symptoms 
affect your ability to work (or if you are a child, your functioning).
    (b) Need for medically determinable impairment that could reasonably 
be expected to produce your symptoms, such as pain. Your symptoms, such 
as pain, fatigue, shortness of breath, weakness, or nervousness, will 
not be found to affect your ability to do basic work activities unless 
medical signs or laboratory findings show that a medically determinable 
impairment(s) is present. Medical signs and laboratory findings, 
established by medically acceptable clinical or laboratory diagnostic 
techniques, must show the existence of a medical impairment(s) which 
results from anatomical, physiological, or psychological abnormalities 
and which could reasonably be expected to produce the pain or other 
symptoms alleged. At the initial or reconsideration step in the 
administrative review process (except in disability hearings), a State 
agency medical or psychological consultant (or other medical or 
psychological consultant designated by the Secretary) directly 
participates in determining whether your medically determinable 
impairment(s) could reasonably be expected to produce your alleged 
symptoms. In the disability hearing process, a medical or psychological 
consultant may provide an advisory assessment to assist a disability 
hearing officer in determining whether your impairment(s) could 
`reasonably be expected to produce your alleged symptoms. At the 
administrative law judge hearing or Appeals Council level, the 
administrative law judge or the Appeals Council may ask for and consider 
the opinion of a medical advisor concerning whether your impairment(s) 
could reasonably be expected to produce your alleged symptoms. The 
finding that your impairment(s) could reasonably be expected to produce 
your pain or other symptoms does not involve a determination as to the 
intensity, persistence, or functionally limiting effects of your 
symptoms. We will develop evidence regarding the possibility of a 
medically determinable mental impairment when we have information to 
suggest that such an impairment exists, and you allege pain or other 
symptoms but the medical signs and laboratory findings do not 
substantiate any physical impairment(s) capable of producing the pain or 
other symptoms.
    (c) Evaluating the intensity and persistence of your symptoms, such 
as pain, and determining the extent to which your symptoms limit your 
capacity for work or, if you are a child, your functioning--(1) General. 
When the medical signs or laboratory findings show that you have a 
medically determinable impairment(s) that could reasonably be expected 
to produce your symptoms, such as pain, we must then evaluate the 
intensity and persistence of your symptoms so that we can determine how 
your symptoms limit your capacity for work or, if you are a child, your 
functioning. In evaluating the intensity and persistence of your 
symptoms, we consider all of the available evidence, including your 
medical history, the medical signs and laboratory findings, and 
statements from you, your treating or examining physician or 
psychologist, or other persons about how your symptoms affect you. We 
also consider the medical opinions of your treating source and other 
medical opinions as explained in Sec. 416.927. Paragraphs (c)(2) through 
(c)(4) of this section explain further how we evaluate the intensity and 
persistence of your symptoms and how we determine the extent to which 
your symptoms limit your capacity for work (or, if you are a child, your 
functioning) when the medical signs or laboratory findings show that you 
have a medically determinable impairment(s) that could reasonably be 
expected to produce your symptoms, such as pain.
    (2) Consideration of objective medical evidence. Objective medical 
evidence is evidence obtained from the application of medically 
acceptable clinical and laboratory diagnostic techniques, such as 
evidence of reduced joint motion, muscle spasm, sensory deficit or motor 
disruption. Objective medical evidence of this type is a useful 
indicator to assist us in making reasonable conclusions about the 
intensity and persistence of your symptoms and the effect

[[Page 750]]

those symptoms, such as pain, may have on your ability to work or, if 
you are a child, your functioning. We must always attempt to obtain 
objective medical evidence and, when it is obtained, we will consider it 
in reaching a conclusion as to whether you are disabled. However, we 
will not reject your statements about the intensity and persistence of 
your pain or other symptoms or about the effect your symptoms have on 
your ability to work (or if you are a child, to function independently, 
appropriately, and effectively in an age-appropriate manner) solely 
because the available objective medical evidence does not substantiate 
your statements.
    (3) Consideration of other evidence. Since symptoms sometimes 
suggest a greater severity of impairment than can be shown by objective 
medical evidence alone, we will carefully consider any other information 
you may submit about your symptoms. The information that you, your 
treating or examining physician or psychologist, or other persons 
provide about your pain or other symptoms (e.g., what may precipitate or 
aggravate your symptoms, what medications, treatments or other methods 
you use to alleviate them, and how the symptoms may affect your pattern 
of daily living) is also an important indicator of the intensity and 
persistence of your symptoms. Because symptoms, such as pain, are 
subjective and difficult to quantify, any symptom-related functional 
limitations and restrictions which you, your treating or examining 
physician or psychologist, or other persons report, which can reasonably 
be accepted as consistent with the objective medical evidence and other 
evidence, will be taken into account as explained in paragraph (c)(4) of 
this section in reaching a conclusion as to whether you are disabled. We 
will consider all of the evidence presented, including information about 
your prior work record, your statements about your symptoms, evidence 
submitted by your treating, examining or consulting physician or 
psychologist, and observations by our employees and other persons. If 
you are a child, we will also consider all of the evidence presented, 
including evidence submitted by your treating, examining or consulting 
physician or psychologist, information from educational agencies and 
personnel, statements from parents and other relatives, and evidence 
submitted by social welfare agencies, therapists, and other 
practitioners. Section 416.927 explains in detail how we consider and 
weigh treating source and other medical opinions about the nature and 
severity of your impairment(s) and any related symptoms, such as pain. 
Factors relevant to your symptoms, such as pain, which we will consider 
include:
    (i) Your daily activities;
    (ii) The location, duration, frequency, and intensity of your pain 
or other symptoms;
    (iii) Precipitating and aggravating factors;
    (iv) The type, dosage, effectiveness, and side effects of any 
medication you take or have taken to alleviate your pain or other 
symptoms;
    (v) Treatment, other than medication, you receive or have received 
for relief of your pain or other symptoms;
    (vi) Any measures you use or have used to relieve your pain or other 
symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes 
every hour, sleeping on a board, etc.); and
    (vii) Other factors concerning your functional limitations and 
restrictions due to pain or other symptoms.
    (4) How we determine the extent to which symptoms, such as pain, 
affect your capacity to perform basic work activities, or, if you are a 
child, your functioning). In determining the extent to which your 
symptoms, such as pain, affect your capacity to perform basic work 
activities (or if you are a child, your functioning), we consider all of 
the available evidence described in paragraphs (c)(1) through (c)(3) of 
this section. We will consider your statements about the intensity, 
persistence, and limiting effects of your symptoms, and we will evaluate 
your statements in relation to the objective medical evidence and other 
evidence, in reaching a conclusion as to whether you are disabled. We 
will consider whether there are any inconsistencies in the evidence and 
the extent to which there

[[Page 751]]

are any conflicts between your statements and the rest of the evidence, 
including your medical history, the medical signs and laboratory 
findings, and statements by your treating or examining physician or 
psychologist or other persons about how your symptoms affect you. Your 
symptoms, including pain, will be determined to diminish your capacity 
for basic work activities (or, if you are a child, your functioning) to 
the extent that your alleged functional limitations and restrictions due 
to symptoms, such as pain, can reasonably be accepted as consistent with 
the objective medical evidence and other evidence.
    (d) Consideration of symptoms in the disability determination 
process. We follow a set order of steps to determine whether you are 
disabled. If you are not doing substantial gainful activity, we consider 
your symptoms, such as pain, to evaluate whether you have a severe 
physical or mental impairment(s), and at each of the remaining steps in 
the process. Sections 416.920 and 416.920a (for adults) and 416.924 (for 
children) explain this process in detail. We also consider your 
symptoms, such as pain, at the appropriate steps in our review when we 
consider whether your disability continues. The procedure we follow in 
reviewing whether your disability continues is explained in Sec. 416.994 
(for adults) and Sec. 416.994a (for children).
    (1) Need to establish a severe medically determinable impairment(s). 
Your symptoms, such as pain, fatigue, shortness of breath, weakness, or 
nervousness, are considered in making a determination as to whether your 
impairment or combination of impairment(s) is severe.(See 
Sec. 416.920(c) for adults and Sec. 416.924(c) for children.)
    (2) Decision whether the Listing of Impairments is met. Some listed 
impairment(s) include symptoms, such as pain, as criteria. Section 
416.925(f) explains how we consider your symptoms when your symptoms are 
included as criteria for a listed impairment.
    (3) Decision whether the Listing of Impairments is equaled. If your 
impairment is not the same as a listed impairment, we must determine 
whether your impairment(s) is medically equivalent to a listed 
impairment. Sections 416.926 and 416.926a explain how we make this 
determination. Under Secs. 416.926(b) and 416.926a(b) (1) and (2), we 
will consider equivalence based on medical evidence only. In considering 
whether your symptoms, signs, and laboratory findings are medically 
equal to the symptoms, signs, and laboratory findings of a listed 
impairment, we will look to see whether your symptoms, signs, and 
laboratory findings are at least equal in severity to the listed 
criteria. However, we will not substitute your allegations of pain or 
other symptoms for a missing or deficient sign or laboratory finding to 
raise the severity of your impairment(s) to that of a listed impairment. 
(If you are a child and we cannot find equivalence based on medical 
evidence only, we will consider pain and other symptoms under 
Sec. 416.926(a)(b)(3) in determining whether you have an impairment(s) 
that causes overall functional limitations that are the same as the 
disabling limitations of a listed impairment.) Regardless of whether you 
are an adult or a child, if the symptoms, signs, and laboratory findings 
of your impairment(s) are equivalent in severity to those of a listed 
impairment, we will find you disabled. (If you are a child and your 
impairment(s) is equivalent in severity to a listed impairment under the 
rules in Sec. 416.926a(b)(3), we also will find you disabled.) If they 
are not, we will consider the impact of your symptoms on your residual 
functional capacity if you are an adult. (See paragraph (d)(4) of this 
section.)
    (4) Impact of symptoms (including pain) on residual functional 
capacity or, if you are a child, on your functioning. If you have a 
medically determinable severe physical or mental impairment(s), but your 
impairment(s) does not meet or equal an impairment listed in appendix 1 
of subpart P of part 404 of this chapter, we will consider the impact of 
your impairment(s) and any related symptoms, including pain, or your 
residual functional capacity, if you are an adult, or, on your 
functioning if you are a child. (See Secs. 416.945 and 416.924a through 
416.924e.)

[56 FR 57944, Nov. 14, 1991, as amended at 62 FR 6429, Feb. 11, 1997; 62 
FR 13538, Mar. 21, 1997]

[[Page 752]]


    Effective Date Note 1:  At 62 FR 6429, Feb. 11, 1997, in 
Sec. 416.929 was amended by revising the fourth, fifth, and last 
sentences of paragraph (a), the first and last sentences of paragraph 
(c)(1), the second sentence of paragraph (c)(2), the heading and the 
first and last sentences of paragraph (c)(4), the reference at the end 
of paragraph (d)(1), the sixth and ninth sentences of paragraph (d)(3), 
and paragraph (d)(4), effective Apr. 14, 1997. For the convenience of 
the user, the superseded text is set forth as follows:

Sec. 416.929  How we evaluate symptoms, including pain.

    (a) * * * These include statements or reports from you, your 
treating or examining physician or psychologist, and others about your 
medical history, diagnosis, prescribed treatment, daily activities, 
efforts to work, and any other evidence showing how your impairment(s) 
and any related symptoms affect your ability to work (or if you are a 
child, to function independently, appropriately, and effectively in an 
age-appropriate manner). We will consider all of your statements about 
your symptoms, such as pain, and any description you, your physician, 
your psychologist, or other persons may provide about how the symptoms 
affect your activities of daily living and your ability to work (or if 
you are a child, to function independently, appropriately, and 
effectively in an age-appropriate manner). * * * We will then determine 
the extent to which your alleged functional limitations and restrictions 
due to pain or other symptoms can reasonably be accepted as consistent 
with the medical signs and laboratory findings and other evidence to 
decide how your symptoms affect your ability to work (or if you are a 
child, to function independently, appropriately, and effectively in an 
age-appropriate manner).

                                * * * * *

    (c) * * *
    (1) General. When the medical signs or laboratory findings show that 
you have a medically determinable impairment(s) that could reasonably be 
expected to produce your symptoms, such as pain, we must then evaluate 
the intensity and persistence of your symptoms so that we can determine 
how your symptoms limit your capacity for work. * * * Paragraphs (c)(2) 
through (c)(4) of this section explain further how we evaluate the 
intensity and persistence of your symptoms and how we determine the 
extent to which your symptoms limit your capacity for work (or if you 
are a child, to function independently, appropriately, and effectively 
in an age-appropriate manner), when the medical signs or laboratory 
findings show that you have a medically determinable impairment(s) that 
could reasonably be expected to produce your symptoms, such as pain.
    (2) * * * Objective medical evidence of this type is a useful 
indicator to assist us in making reasonable conclusions about the 
intensity and persistence of your symptoms and the effect those 
symptoms, such as pain, may have on your ability to work. * * *

                                * * * * *

    (4) How we determine the extent to which symptoms, such as pain, 
affect your capacity to perform basic work activities (or to function in 
an age-appropriate manner). In determining the extent to which your 
symptoms, such as pain, affect your capacity to perform basic work 
activities (or if you are a child, to function independently, 
appropriately, and effectively in an age-appropriate manner), we 
consider all of the available evidence described in paragraphs (c)(1) 
through (c)(3) of this section. * * * Your symptoms, including pain, 
will be determined to diminish your capacity for basic work activities 
(or if you are a child, age-appropriate activities) to the extent that 
your alleged functional limitations and restrictions due to symptoms, 
such as pain, can reasonably be accepted as consistent with the 
objective medical evidence and other evidence.

                                * * * * *

    (d) * * *
    (1) * * * (See Sec. 416.920(c) for adults and Sec. 416.924(d) for 
children.)

                                * * * * *

    (3) * * * (If you are a child and we cannot find equivalence based 
on medical evidence only, we will consider pain and other symptoms under 
Sec. 416.926a(b)(3) in determining whether you have an impairment(s) 
that results in overall functional limitations that are the same as the 
disabling functional consequences of a listed impairment.) * * * If they 
are not, we will consider the impact of your symptoms on your residual 
functional capacity if you are an adult or, if you are a child, on your 
ability to function in an age-appropriate manner.* * *
    (4) Impact of symptoms (including pain) on residual functional 
capacity or individualized functional assessment. If you have a 
medically determinable severe physical or mental impairment(s), but your 
impairment(s) does not meet or equal an impairment listed in appendix 1 
of subpart P of part 404 of this chapter, we will consider the impact of 
your impairment(s) and any related symptoms, including pain, on your 
residual functional capacity,

[[Page 753]]

or if you are a child, on your ability to function independently, 
appropriately, and effectively in an age-appropriate manner. (See 
Secs. 416.945 and 416.924a through 416.924d.)

                                * * * * *

    Effective Date Note 2: At 62 FR 13538, Mar. 21, 1997, Sec. 416.929 
was amended by correcting the heading to paragraph (c), effective Apr. 
14, 1997. For the convenience of the user, the superseded text is set 
forth as follows:

                                * * * * *

    (c) Evaluating the intensity and persistence of your symptoms, such 
as pain, and determining the extent to which your symptoms limit your 
capacity for work or for functioning in an age-appropriate manner. * * *

                                * * * * *



Sec. 416.930  Need to follow prescribed treatment.

    (a) What treatment you must follow. In order to get benefits, you 
must follow treatment prescribed by your physician if this treatment can 
restore your ability to work, or, if you are a child, if the treatment 
can reduce your functional limitations so that they are no longer marked 
and severe.
    (b) When you do not follow prescribed treatment. If you do not 
follow the prescribed treatment without a good reason, we will not find 
you disabled or blind or, if you are already receiving benefits, we will 
stop paying you benefits.
    (c) Acceptable reasons for failure to follow prescribed treatment. 
We will consider your physical, mental, educational, and linguistic 
limitations (including any lack of facility with the English language) 
when determining if you have an acceptable reason for failure to follow 
prescribed treatment. The following are examples of a good reason for 
not following treatment:
    (1) The specific medical treatment is contrary to the established 
teaching and tenets of your religion.
    (2) The prescribed treatment would be cataract surgery for one eye 
when there is an impairment of the other eye resulting in a severe loss 
of vision and is not subject to improvement through treatment.
    (3) Surgery was previously performed with unsuccessful results and 
the same surgery is again being recommended for the same impairment.
    (4) The treatment because of its enormity (e.g. open heart surgery), 
unusual nature (e.g., organ transplant), or other reason is very risky 
for you; or
    (5) The treatment involves amputation of an extremity, or a major 
part of an extremity.

[45 FR 55621, Aug. 20, 1980, as amended at 59 FR 1636, Jan. 12, 1994; 62 
FR 6429, Feb. 11, 1997]

    Effective Date Note:  At 62 FR 6429, Feb. 11, 1997, in Sec. 416.930, 
paragraph (a) was revised, effective Apr. 14, 1997. For the convenience 
of the user, the superseded text is set forth as follows:

Sec. 416.930  Need to follow prescribed treatment.

    (a) What treatment you must follow. In order to get benefits, you 
must follow treatment prescribed by your physician if this treatment can 
restore your ability to work.

                                * * * * *

                  Presumptive Disability and Blindness



Sec. 416.931  The meaning of presumptive disability or presumptive blindness.

    If you are applying for supplemental security income benefits on the 
basis of disability or blindness, we may pay you benefits before we make 
a formal finding of whether or not you are disabled or blind. In order 
to receive these payments, we must find that you are presumptively 
disabled or presumptively blind. You must also meet all other 
eligibility requirements for supplemental security income benefits. We 
may make these payments to you for a period not longer than 6 months. 
These payments will not be considered overpayments if we later find that 
you are not disabled or blind.

[45 FR 55621, Aug. 20, 1980, as amended at 57 FR 53853, Nov. 13, 1992]



Sec. 416.932  When presumptive payments begin and end.

    We may make payments to you on the basis of presumptive disability 
or presumptive blindness before we make a formal determination about 
your disability or blindness. The payments can

[[Page 754]]

not be made for more than 6 months. They start for a period of not more 
than 6 months beginning in the month we make the presumptive disability 
or presumptive blindness finding. The payments end the earliest of--
    (a) The month in which we make a formal finding on whether or not 
you are disabled or blind;
    (b) The month for which we make the sixth monthly payment based on 
presumptive disability or presumptive blindness to you; or
    (c) The month in which you no longer meet one of the other 
eligibility requirements (e.g., your income exceeds the limits).

[45 FR 55621, Aug. 20, 1980, as amended at 57 FR 53853, Nov. 13, 1992]



Sec. 416.933  How we make a finding of presumptive disability or presumptive blindness.

    We may make a finding of presumptive disability or presumptive 
blindness if the evidence available at the time we make the presumptive 
disability or presumptive blindness finding reflects a high degree of 
probability that you are disabled or blind. In the case of readily 
observable impairments (e.g., amputation of extremities, total 
blindness), we will find that you are disabled or blind for purposes of 
this section without medical or other evidence. For other impairments, a 
finding of disability or blindness must be based on medical evidence or 
other information that, though not sufficient for a formal determination 
of disability or blindness, is sufficient for us to find that there is a 
high degree of probability that you are disabled or blind. For example, 
for claims involving the human immunodeficiency virus (HIV), the Social 
Security Field Office may make a finding of presumptive disability if 
your medical source provides us with information that confirms that your 
disease manifestations meet the severity of listing-level criteria for 
HIV. Of course, regardless of the specific HIV manifestations, the State 
agency may make a finding of presumptive disability if the medical 
evidence or other information reflects a high degree of probability that 
you are disabled.

[58 FR 36063, July 2, 1993]



Sec. 416.934  Impairments which may warrant a finding of presumptive disability or presumptive blindness.

    We may make findings of presumptive disability and presumptive 
blindness in specific impairment categories without obtaining any 
medical evidence. These specific impairment categories are--
    (a) Amputation of two limbs;
    (b) Amputation of a leg at the hip;
    (c) Allegation of total deafness;
    (d) Allegation of total blindness;
    (e) Allegation of bed confinement or immobility without a 
wheelchair, walker, or crutches, due to a longstanding condition, 
excluding recent accident and recent surgery;
    (f) Allegation of a stroke (cerebral vascular accident) more than 3 
months in the past and continued marked difficulty in walking or using a 
hand or arm;
    (g) Allegation of cerebral palsy, muscular dystrophy or muscle 
atrophy and marked difficulty in walking (e.g., use of braces), 
speaking, or coordination of the hands or arms.
    (h) Allegation of diabetes with amputation of a foot;
    (i) Allegation of Down's syndrome (Mongolism); and
    (j) Allegation of severe mental deficiency made by another 
individual filing on behalf of a claimant who is at least 7 years of 
age. For example, a mother filing for benefits for her child states that 
the child attends (or attended) a special school, or special classes in 
school, because of mental deficiency or is unable to attend any type of 
school (or if beyond school age, was unable to attend), and requires 
care and supervision of routine daily activities.

[45 FR 55621, Aug. 20, 1980, as amended at 50 FR 5574, Feb. 11, 1985; 53 
FR 3741, Feb. 9, 1988; 56 FR 65684, Dec. 18, 1991]

                      Drug Addiction and Alcoholism



Sec. 416.935  How we will determine whether your drug addiction or alcoholism is a contributing factor material to the determination of disability.

    (a) General. If we find that you are disabled and have medical 
evidence of your drug addiction or alcoholism, we

[[Page 755]]

must determine whether your drug addiction or alcoholism is a 
contributing factor material to the determination of disability, unless 
we find that you are eligible for benefits because of your age or 
blindness.
    (b) Process we will follow when we have medical evidence of your 
drug addiction or alcoholism. (1) The key factor we will examine in 
determining whether drug addiction or alcoholism is a contributing 
factor material to the determination of disability is whether we would 
still find you disabled if you stopped using drugs or alcohol.
    (2) In making this determination, we will evaluate which of your 
current physical and mental limitations, upon which we based our current 
disability determination, would remain if you stopped using drugs or 
alcohol and then determine whether any or all of your remaining 
limitations would be disabling.
    (i) If we determine that your remaining limitations would not be 
disabling, we will find that your drug addiction or alcoholism is a 
contributing factor material to the determination of disability.
    (ii) If we determine that your remaining limitations are disabling, 
you are disabled independent of your drug addiction or alcoholism and we 
will find that your drug addiction or alcoholism is not a contributing 
factor material to the determination of disability.

[60 FR 8151, Feb. 10, 1995]



Sec. 416.936  Treatment required for individuals whose drug addiction or alcoholism is a contributing factor material to the determination of disability.

    (a) If we determine that you are disabled and drug addiction or 
alcoholism is a contributing factor material to the determination of 
disability, you must avail yourself of appropriate treatment for your 
drug addiction or alcoholism at an institution or facility approved by 
us when this treatment is available and make progress in your treatment. 
Generally, you are not expected to pay for this treatment. You will not 
be paid benefits for any month after the month we have notified you in 
writing that--
    (1) You did not comply with the terms, conditions and requirements 
of the treatment which has been made available to you; or
    (2) You did not avail yourself of the treatment after you had been 
notified that it is available to you.
    (b) If your benefits are suspended for failure to comply with 
treatment requirements, your benefits can be reinstated in accordance 
with the rules in Sec. 416.1326.

[60 FR 8151, Feb. 10, 1995]



Sec. 416.937  What we mean by appropriate treatment.

    By appropriate treatment, we mean treatment for drug addiction or 
alcoholism that serves the needs of the individual in the least 
restrictive setting possible consistent with your treatment plan. These 
settings range from outpatient counseling services through a variety of 
residential treatment settings including acute detoxification, short-
term intensive residential treatment, long-term therapeutic residential 
treatment, and long-term recovery houses. Appropriate treatment is 
determined with the involvement of a State licensed or certified 
addiction professional on the basis of a detailed assessment of the 
individual's presenting symptomatology, psychosocial profile, and other 
relevant factors. This assessment may lead to a determination that more 
than one treatment modality is appropriate for the individual. The 
treatment will be provided or overseen by an approved institution or 
facility. This treatment may include (but is not limited to)--
    (a) Medical examination and medical management;
    (b) Detoxification;
    (c) Medication management to include substitution therapy (e.g., 
methadone);
    (d) Psychiatric, psychological, psychosocial, vocational, or other 
substance abuse counseling in a residential or outpatient treatment 
setting; or
    (e) Relapse prevention.

[60 FR 8151, Feb. 10, 1995]

[[Page 756]]



Sec. 416.938  What we mean by approved institutions or facilities.

    Institutions or facilities that we may approve include--
    (a) An institution or facility that furnishes medically recognized 
treatment for drug addiction or alcoholism in conformity with applicable 
Federal or State laws and regulations;
    (b) An institution or facility used by or licensed by an appropriate 
State agency which is authorized to refer persons for treatment of drug 
addiction or alcoholism;
    (c) State licensed or certified care providers;
    (d) Programs accredited by the Commission on Accreditation for 
Rehabilitation Facilities (CARF) and/or the Joint Commission for the 
Accreditation of Healthcare Organizations (JCAHO) for the treatment of 
drug addiction or alcoholism;
    (e) Medicare or Medicaid certified care providers; or
    (f) Nationally recognized self-help drug addiction or alcoholism 
recovery programs (e.g., Alcoholics Anonymous or Narcotics Anonymous) 
when participation in these programs is specifically prescribed by a 
treatment professional at an institution or facility described in 
paragraphs (a) through (e) of this section as part of an individual's 
treatment plan.

[60 FR 8151, Feb. 10, 1995]



Sec. 416.939  How we consider whether treatment is available.

    Our determination about whether treatment is available to you for 
your drug addiction or your alcoholism will depend upon--
    (a) The capacity of an approved institution or facility to admit you 
for appropriate treatment;
    (b) The location of the approved institution or facility, or the 
place where treatment, services or resources could be provided to you;
    (c) The availability and cost of transportation for you to the place 
of treatment;
    (d) Your general health, including your ability to travel and 
capacity to understand and follow the prescribed treatment;
    (e) Your particular condition and circumstances; and
    (f) The treatment that is prescribed for your drug addiction or 
alcoholism.

[60 FR 8151, Feb. 10, 1995]



Sec. 416.940  Evaluating compliance with the treatment requirements.

    (a) General. Generally, we will consider information from the 
treatment institution or facility to evaluate your compliance with your 
treatment plan. The treatment institution or facility will--
    (1) Monitor your attendance at and participation in treatment 
sessions;
    (2) Provide reports of the results of any clinical testing (such as, 
hematological or urinalysis studies for individuals with drug addiction 
and hematological studies and breath analysis for individuals with 
alcoholism) when such tests are likely to yield important information;
    (3) Provide observational reports from the treatment professionals 
familiar with your individual case (subject to verification and Federal 
confidentiality requirements); or
    (4) Provide their assessment or views on your noncompliance with 
treatment requirements.
    (b) Measuring progress. Generally, we will consider information from 
the treatment institution or facility to evaluate your progress in 
completing your treatment plan. Examples of milestones for measuring 
your progress with the treatment which has been prescribed for your drug 
addiction or alcoholism may include (but are not limited to)--
    (1) Abstinence from drug or alcohol use (initial progress may 
include significant reduction in use);
    (2) Consistent attendance at and participation in treatment 
sessions;
    (3) Improved social functioning and levels of gainful activity;
    (4) Participation in vocational rehabilitation activities; or
    (5) Avoidance of criminal activity.

[60 FR 8151, Feb. 10, 1995]



Sec. 416.941  Establishment and use of referral and monitoring agencies.

    We will contract with one or more agencies in each of the States and 
the District of Columbia to provide services to individuals whose 
disabilities

[[Page 757]]

are based on a determination that drug addiction or alcoholism is a 
contributing factor material to the determination of disability (as 
described in Sec. 416.935) and to submit information to us which we will 
use to make decisions about these individuals' benefits. These agencies 
will be known as referral and monitoring agencies. Their duties and 
responsibilities include (but are not limited to)--
    (a) Identifying appropriate treatment placements for individuals we 
refer to them;
    (b) Referring these individuals for treatment;
    (c) Monitoring the compliance and progress with the appropriate 
treatment of these individuals; and
    (d) Promptly reporting to us any individual's failure to comply with 
treatment requirements as well as failure to achieve progress through 
the treatment.

[60 FR 8152, Feb. 10, 1995]

                      Residual Functional Capacity



Sec. 416.945  Your residual functional capacity.

    (a) General. Your impairment(s), and any related symptoms, such as 
pain, may cause physical and mental limitations that affect what you can 
do in a work setting. Your residual functional capacity is what you can 
still do despite your limitations. If you have more than one impairment, 
we will consider all of your impairment(s) of which we are aware. We 
will consider your ability to meet certain demands of jobs, such as 
physical demands, mental demands, sensory requirements, and other 
functions, as described in paragraphs (b), (c), and (d) of this section. 
Residual functional capacity is an assessment based upon all of the 
relevant evidence. It may include descriptions (even your own) of 
limitations that go beyond the symptoms, such as pain, that are 
important in the diagnosis and treatment of your medical condition. 
Observations by your treating or examining physicians or psychologists, 
your family, neighbors, friends, or other persons, of your limitations, 
in addition to those observations usually made during formal medical 
examinations, may also be used. These descriptions and observations, 
when used, must be considered along with your medical records to enable 
us to decide to what extent your impairment(s) keeps you from performing 
particular work activities. This assessment of your remaining capacity 
for work is not a decision on whether you are disabled, but is used as 
the basis for determining the particular types of work you may be able 
to do despite your impairment(s). Then, using the guidelines in 
Secs. 416.960 through 416.969a, your vocational background is considered 
along with your residual functional capacity in arriving at a disability 
determination or decision. In deciding whether your disability continues 
or ends, the residual functional capacity assessment may also be used to 
determine whether any medical improvement you have experienced is 
related to your ability to work as discussed in Sec. 416.994.
    (b) Physical abilities. When we assess your physical abilities, we 
first assess the nature and extent of your physical limitations and then 
determine your residual functional capacity for work activity on a 
regular and continuing basis. A limited ability to perform certain 
physical demands of work activity, such as sitting, standing, walking, 
lifting, carrying, pushing, pulling, or other physical functions 
(including manipulative or postural functions, such as reaching, 
handling, stooping or crouching), may reduce your ability to do past 
work and other work.
    (c) Mental abilities. When we assess your mental abilities, we first 
assess the nature and extent of your mental limitations and restrictions 
and then determine your residual functional capacity for work activity 
on a regular and continuing basis. A limited ability to carry out 
certain mental activities, such as limitations in understanding, 
remembering, and carrying out instructions, and in responding 
appropriately to supervision, coworkers, and work pressures in a work 
setting, may reduce your ability to do past work and other work.
    (d) Other abilities affected by impairment(s). Some medically 
determinable

[[Page 758]]

impairment(s), such as skin impairment(s), epilepsy, impairment(s) of 
vision, hearing or other senses, and impairment(s) which impose 
environmental restrictions, may cause limitations and restrictions which 
affect other work-related abilities. If you have this type of 
impairment(s), we consider any resulting limitations and restrictions 
which may reduce your ability to do past work and other work in deciding 
your residual functional capacity.
    (e) Total limiting effects. When you have a severe impairment(s), 
but your symptoms, signs, and laboratory findings do not meet or equal 
those of a listed impairment in appendix 1 of subpart P of part 404 of 
this chapter, we will consider the limiting effects of all your 
impairment(s), even those that are not severe, in determining your 
residual functional capacity. Pain or other symptoms may cause a 
limitation of function beyond that which can be determined on the basis 
of the anatomical, physiological or psychological abnormalities 
considered alone; e.g., someone with a low back disorder may be fully 
capable of the physical demands consistent with those of sustained 
medium work activity, but another person with the same disorder, because 
of pain, may not be capable of more than the physical demands consistent 
with those of light work activity on a sustained basis. In assessing the 
total limiting effects of your impairment(s) and any related symptoms, 
we will consider all of the medical and nonmedical evidence, including 
the information described in Sec. 416.929(c).

[56 FR 57947, Nov. 14, 1991]



Sec. 416.946  Responsibility for assessing and determining residual functional capacity.

    The State agency staff medical or psychological consultants or other 
medical or psychological consultants designated by the Secretary are 
responsible for ensuring that the State agency makes a decision about 
your residual functional capacity. In cases where the State agency makes 
the disability determination, a State agency staff medical or 
psychological consultant must assess residual functional capacity where 
it is required. This assessment is based on all of the evidence we have, 
including any statements regarding what you can still do that have been 
provided by treating or examining physicians, consultative physicians, 
or any other medical or psychological consultant designated by the 
Secretary. See Sec. 416.945. For cases in the disability hearing 
process, the responsibility for deciding your residual functional 
capacity rests with either the disability hearing officer or, if the 
disability hearing officer's reconsidered determination is changed under 
Sec. 416.918, with the Director of the Office of Disability Hearings or 
his or her delegate. For cases at the Administrative Law Judge hearing 
or Appeals Council level, the responsibility for deciding your residual 
functional capacity rests with the Administrative Law Judge or Appeals 
Council.

[56 FR 36970, Aug. 1, 1991]

                        Vocational Considerations



Sec. 416.960  When your vocational background will be considered.

    (a) General. If you are age 18 or older and applying for benefits 
based on disability and we cannot decide whether you are disabled on 
medical evidence alone, we will consider your residual functional 
capacity together with your vocational background.
    (b) Past relevant work. We will first compare your residual 
functional capacity with the physical and mental demands of the kind of 
work you have done in the past. If you still have the residual 
functional capacity to do your past relevant work, we will find that you 
can still do your past work, and we will determine that you are not 
disabled, without considering your vocational factors of age, education, 
and work experience.
    (c) Other work. If we find that you can no longer do the kind of 
work you have done in the past, we will then consider your residual 
functional capacity together with your vocational factors of age, 
education, and work experience to determine whether you can do other 
work. By other work we mean jobs that exist in significant numbers in 
the national economy.

[55 FR 11011, Mar. 26, 1990]

[[Page 759]]



Sec. 416.961  Your ability to do work depends upon your residual functional capacity.

    If you can do your previous work (your usual work or other 
applicable past work), we will determine that you are not disabled. 
However, if your residual functional capacity is not enough to enable 
you to do any of your previous work, we must still decide if you can do 
any other work. To do this, we consider your residual functional 
capacity, and your age, education, and work experience. Any work (jobs) 
that you can do must exist in significant numbers in the national 
economy (either in the region where you live or in several regions of 
the country). Sections 416.963 through 416.965 explain how we evaluate 
your age, education, and work experience when we are deciding whether or 
not you are able to do other work.



Sec. 416.962  If you have done only arduous unskilled physical labor.

    If you have only a marginal education and work experience of 35 
years or more during which you did arduous unskilled physical labor, and 
you are not working and are no longer able to do this kind of work 
because of a severe impairment(s), we will consider you unable to do 
lighter work, and therefore, disabled. However, if you are working or 
have worked despite your impairment(s) (except where the work is 
sporadic or is not medically advisable), we will review all the facts in 
your case, and we may find that you are not disabled. In addition, we 
will consider that you are not disabled if the evidence shows that you 
have training or past work experience which enables you to do 
substantial gainful activity in another occupation with your impairment, 
either on a full-time or a reasonably regular part-time basis.
    Example:  B is a 60-year-old miner with a fourth grade education who 
has a life-long history of arduous physical labor. B says that he is 
disabled because of arthritis of the spine, hips, and knees, and other 
impairments. Medical evidence shows a combination of impairments and 
establishes that these impairments prevent B from performing his usual 
work or any other type of arduous physical labor. His vocational 
background does not show that he has skills or capabilities needed to do 
lighter work which would be readily transferable to another work 
setting. Under these circumstances, we will find that B is disabled.



Sec. 416.963  Your age as a vocational factor.

    (a) General. Age refers to how old you are (your chronological age) 
and the extent to which your age affects your ability to adapt to a new 
work situation and to do work in competition with others. However, we do 
not determine disability on your age alone. We must also consider your 
residual functional capacity, education, and work experience. If you are 
unemployed because of your age and you can still do a significant number 
of jobs which exist in the national economy, we will find that you are 
not disabled. We explain age as a vocational factor in appendix 2 of 
subpart P of part 404 of this chapter. However, we will not apply these 
age categories mechanically in a borderline situation.
    (b) Younger person. If you are under age 50, we generally do not 
consider that your age will seriously affect your ability to adapt to a 
new work situation. In some circumstances, however, we consider age 45 a 
handicap in adapting to a new work setting (see Rule 201.17 in appendix 
2 of subpart P of part 404 of this chapter).
    (c) Person approaching advanced age. If you are closely approaching 
advanced age (50-54), we will consider that your age, along with a 
severe impairment and limited work experience, may seriously affect your 
ability to adjust to a significant number of jobs in the national 
economy.
    (d) Person of advanced age. We consider that advanced age (55 or 
over) is the point where age significantly affects a person's ability to 
do substantial gainful activity. If you are severely impaired and of 
advanced age and you cannot do medium work (see Sec. 416.967(c)), you 
may not be able to work unless you have skills that can be used in 
(transferred to) less demanding jobs which exist in significant numbers 
in the national economy. If you are close to retirement age (60-64) and 
have a severe impairment, we will not consider you able to adjust to 
sedentary or light work unless you have skills which are highly 
marketable.

[[Page 760]]

    (e) Information about your age. We will usually not ask you to prove 
your age. However, if we need to know your exact age to determine 
whether you get disability benefits, we will ask you for evidence of 
your age.



Sec. 416.964  Your education as a vocational factor.

    (a) General. Education is primarily used to mean formal schooling or 
other training which contributes to your ability to meet vocational 
requirements, for example, reasoning ability, communication skills, and 
arithmetical ability. However, if you do not have formal schooling, this 
does not necessarily mean that you are uneducated or lack these 
abilities. Past work experience and the kinds of responsibilities you 
had when you were working may show that you have intellectual abilities, 
although you may have little formal education. Your daily activities, 
hobbies, or the results of testing may also show that you have 
significant intellectual ability that can be used to work.
    (b) How we evaluate your education. The importance of your 
educational background may depend upon how much time has passed between 
the completion of your formal education and the beginning of your 
physical or mental impairment(s) and by what you have done with your 
education in a work or other setting. Formal education that you 
completed many years before your impairment began, or unused skills and 
knowledge that were a part of your formal education, may no longer be 
useful or meaningful in terms of your ability to work. Therefore, the 
numerical grade level that you completed in school may not represent 
your actual educational abilities. These may be higher or lower. 
However, if there is no other evidence to contradict it, we will use 
your numerical grade level to determine your educational abilities. The 
term education also includes how well you are able to communicate in 
English since this ability is often acquired or improved by education. 
In evaluating your educational level, we use the following categories:
    (1) Illiteracy. Illiteracy means the inability to read or write. We 
consider someone illiterate if the person cannot read or write a simple 
message such as instructions or inventory lists even though the person 
can sign his or her name. Generally, an illiterate person has had little 
or no formal schooling.
    (2) Marginal education. Marginal education means ability in 
reasoning, arithmetic, and language skills which are needed to do 
simple, unskilled types of jobs. We generally consider that formal 
schooling at a 6th grade level or less is a marginal education.
    (3) Limited education. Limited education means ability in reasoning, 
arithmetic, and language skills, but not enough to allow a person with 
these educational qualifications to do most of the more complex job 
duties needed in semi-skilled or skilled jobs. We generally consider 
that a 7th grade through the 11th grade level of formal education is a 
limited education.
    (4) High school education and above. High school education and above 
means abilities in reasoning, arithmetic, and language skills acquired 
through formal schooling at a 12th grade level or above. We generally 
consider that someone with these educational abilities can do semi-
skilled through skilled work.
    (5) Inability to communicate in English. Since the ability to speak, 
read and understand English is generally learned or increased at school, 
we may consider this an educational factor. Because English is the 
dominant language of the country, it may be difficult for someone who 
doesn't speak and understand English to do a job, regardless of the 
amount of education the person may have in another language. Therefore, 
we consider a person's ability to communicate in English when we 
evaluate what work, if any, he or she can do. It generally doesn't 
matter what other language a person may be fluent in.
    (6) Information about your education. We will ask you how long you 
attended school and whether you are able to speak, understand, read and 
write in English and do at least simple calculations in arithmetic. We 
will also consider other information about how much formal or informal 
education you may have had through your previous work, community 
projects, hobbies,

[[Page 761]]

and any other activities which might help you to work.



Sec. 416.965  Your work experience as a vocational factor.

    (a) General. Work experience means skills and abilities you have 
acquired through work you have done which show the type of work you may 
be expected to do. Work you have already been able to do shows the kind 
of work that you may be expected to do. We consider that your work 
experience applies when it was done within the last 15 years, lasted 
long enough for you to learn to do it, and was substantial gainful 
activity. We do not usually consider that work you did 15 years or more 
before the time we are deciding whether you are disabled applies. A 
gradual change occurs in most jobs so that after 15 years it is no 
longer realistic to expect that skills and abilities acquired in a job 
done then continue to apply. The 15-year guide is intended to insure 
that remote work experience is not currently applied. If you have no 
work experience or worked only off-and-on or for brief periods of time 
during the 15-year period, we generally consider that these do not 
apply. If you have acquired skills through your past work, we consider 
you to have these work skills unless you cannot use them in other 
skilled or semi-skilled work that you can now do. If you cannot use your 
skills in other skilled or semi-skilled work, we will consider your work 
background the same as unskilled. However, even if you have no work 
experience, we may consider that you are able to do unskilled work 
because it requires little or no judgment and can be learned in a short 
period of time.
    (b) Information about your work. Under certain circumstances, we 
will ask you about the work you have done in the past. If you cannot 
give us all of the information we need, we will try, with your 
permission, to get it from your employer or other person who knows about 
your work, such as a member of your family or a co-worker. When we need 
to consider your work experience to decide whether you are able to do 
work that is different from what you have done in the past, we will ask 
you to tell us about all of the jobs you have had in the last 15 years. 
You must tell us the dates you worked, all of the duties you did, and 
any tools, machinery, and equipment you used. We will need to know about 
the amount of walking, standing, sitting, lifting and carrying you did 
during the work day, as well as any other physical or mental duties of 
your job. If all of your work in the past 15 years has been arduous and 
unskilled, and you have very little education, we will ask you to tell 
us about all of your work from the time you first began working. This 
information could help you to get disability benefits.



Sec. 416.966  Work which exists in the national economy.

    (a) General. We consider that work exists in the national economy 
when it exists in significant numbers either in the region where you 
live or in several other regions of the country. It does not matter 
whether--
    (1) Work exists in the immediate area in which you live;
    (2) A specific job vacancy exists for you; or
    (3) You would be hired if you applied for work.
    (b) How we determine the existence of work. Work exists in the 
national economy when there is a significant number of jobs (in one or 
more occupations) having requirements which you are able to meet with 
your physical or mental abilities and vocational qualifications. 
Isolated jobs that exist only in very limited numbers in relatively few 
locations outside of the region where you live are not considered work 
which exists in the national economy. We will not deny you disability 
benefits on the basis of the existence of these kinds of jobs. If work 
that you can do does not exist in the national economy, we will 
determine that you are disabled. However, if work that you can do does 
exist in the national economy, we will determine that you are not 
disabled.
    (c) Inability to obtain work. We will determine that you are not 
disabled if your residual functional capacity and vocational abilities 
make it possible for you to do work which exists in the national 
economy, but you remain unemployed because of--

[[Page 762]]

    (1) Your inability to get work;
    (2) Lack of work in your local area;
    (3) The hiring practices of employers;
    (4) Technological changes in the industry in which you have worked;
    (5) Cyclical economic conditions;
    (6) No job openings for you;
    (7) You would not actually be hired to do work you could otherwise 
do, or;
    (8) You do not wish to do a particular type of work.
    (d) Administrative notice of job data. When we determine that 
unskilled, sedentary, light, and medium jobs exist in the national 
economy (in significant numbers either in the region where you live or 
in several regions of the country), we will take administrative notice 
of reliable job information available from various governmental and 
other publications. For example, we will take notice of--
    (1) Dictionary of Occupational Titles, published by the Department 
of Labor;
    (2) County Business Patterns, published by the Bureau of the Census;
    (3) Census Reports, also published by the Bureau of the Census;
    (4) Occupational Analyses prepared for the Social Security 
Administration by various State employment agencies; and
    (5) Occupational Outlook Handbook, published by the Bureau of Labor 
Statistics.
    (e) Use of vocational experts and other specialists. If the issue in 
determining whether you are disabled is whether your work skills can be 
used in other work and the specific occupations in which they can be 
used, or there is a similarly complex issue, we may use the services of 
a vocational expert or other specialist. We will decide whether to use a 
vocational expert or other specialist.



Sec. 416.967  Physical exertion requirements.

    To determine the physical exertion requirments of work in the 
national economy, we classify jobs as sedentary, light, medium, heavy, 
and very heavy. These terms have the same meaning as they have in the 
Dictionary of Occupational Titles, published by the Department of Labor. 
In making disability determinations under this subpart, we use the 
following definitions:
    (a) Sedentary work. Sedentary work involves lifting no more than 10 
pounds at a time and occasionally lifting or carrying articles like 
docket files, ledgers, and small tools. Although a sedentary job is 
defined as one which involves sitting, a certain amount of walking and 
standing is often necessary in carrying out job duties. Jobs are 
sedentary if walking and standing are required occasionally and other 
sedentary criteria are met.
    (b) Light work. Light work involves lifting no more than 20 pounds 
at a time with frequent lifting or carrying of objects weighing up to 10 
pounds. Even though the weight lifted may be very little, a job is in 
this category when it requires a good deal of walking or standing, or 
when it involves sitting most of the time with some pushing and pulling 
of arm or leg controls. To be considered capable of performing a full or 
wide range of light work, you must have the ability to do substantially 
all of these activities. If someone can do light work, we determine that 
he or she can also do sedentary work, unless there are additional 
limiting factors such as loss of fine dexterity or inability to sit for 
long periods of time.
    (c) Medium work. Medium work involves lifting no more than 50 pounds 
at a time with frequent lifting or carrying of objects weighing up to 25 
pounds. If someone can do medium work, we determine that he or she can 
also do sedentary and light work.
    (d) Heavy work. Heavy work involves lifting no more than 100 pounds 
at a time with frequent lifting or carrying of objects weighing up to 50 
pounds. If someone can do heavy work, we determine that he or she can 
also do medium, light, and sedentary work.
    (e) Very heavy work. Very heavy work involves lifting objects 
weighing more than 100 pounds at a time with frequent lifting or 
carrying of objects weighing 50 pounds or more. If someone can do very 
heavy work, we determine that he or she can also do heavy, medium, 
light, and sedentary work.



Sec. 416.968  Skill requirements.

    In order to evaluate your skills and to help determine the existence 
in the national economy of work you are able

[[Page 763]]

to do, occupations are classified as unskilled, semi-skilled, and 
skilled. In classifying these occupations, we use materials published by 
the Department of Labor. When we make disability determinations under 
this subpart, we use the following definitions:
    (a) Unskilled work. Unskilled work is work which needs little or no 
judgment to do simple duties that can be learned on the job in a short 
period of time. The job may or may not require considerable strength. 
For example, we consider jobs unskilled if the primary work duties are 
handling, feeding and offbearing (that is, placing or removing materials 
from machines which are automatic or operated by others), or machine 
tending, and a person can usually learn to do the job in 30 days, and 
little specific vocational preparation and judgment are needed. A person 
does not gain work skills by doing unskilled jobs.
    (b) Semi-skilled work. Semi-skilled work is work which needs some 
skills but does not require doing the more complex work duties. Semi-
skilled jobs may require alertness and close attention to watching 
machine processes; or inspecting, testing or otherwise looking for 
irregularities; or tending or guarding equipment, property, materials, 
or persons against loss, damage or injury; or other types of activities 
which are similarly less complex than skilled work, but more complex 
than unskilled work. A job may be classified as semi-skilled where 
coordination and dexterity are necessary, as when hands or feet must be 
moved quickly to do repetitive tasks.
    (c) Skilled work. Skilled work requires qualifications in which a 
person uses judgment to determine the machine and manual operations to 
be performed in order to obtain the proper form, quality, or quantity of 
material to be produced. Skilled work may require laying out work, 
estimating quality, determining the suitability and needed quantities of 
materials, making precise measurements, reading blueprints or other 
specifications, or making necessary computations or mechanical 
adjustments to control or regulate the work. Other skilled jobs may 
require dealing with people, facts, or figures or abstract ideas at a 
high level of complexity.
    (d) Skills that can be used in other work (transferability)--(1) 
What we mean by transferable skills. We consider you to have skills that 
can be used in other jobs, when the skilled or semi-skilled work 
activities you did in past work can be used to meet the requirements of 
skilled or semi-skilled work activities of other jobs or kinds of work. 
This depends largely on the similarity of occupationally significant 
work activities among different jobs.
    (2) How we determine skills that can be transferred to other jobs. 
Transferability is most probable and meaningful among jobs in which--
    (i) The same or a lesser degree of skill is required;
    (ii) The same or similar tools and machines are used; and
    (iii) The same or similar raw materials, products, processes, or 
services are involved.
    (3) Degrees of transferability. There are degrees of transferability 
of skills ranging from very close similarities to remote and incidental 
similarities among jobs. A complete similarity of all three factors is 
not necessary for transferability. However, when skills are so 
specialized or have been acquired in such an isolated vocational setting 
(like many jobs in mining, agriculture, or fishing) that they are not 
readily usable in other industries, jobs, and work settings, we consider 
that they are not transferable.



Sec. 416.969  Listing of Medical-Vocational Guidelines in appendix 2 of subpart P of part 404 of this chapter.

    The Dictionary of Occupational Titles includes information about 
jobs (classified by their exertional and skill requirements) that exist 
in the national economy. Appendix 2 provides rules using this data 
reflecting major functional and vocational patterns. We apply these 
rules in cases where a person is not doing substantial gainful activity 
and is prevented by a severe medically determinable impairment from 
doing vocationally relevant past work. The rules in appendix 2 do not 
cover all possible variations of factors. Also, as we explain in 
Sec. 200.00 of appendix 2, we do not apply these rules if one

[[Page 764]]

of the findings of fact about the person's vocational factors and 
residual functional capacity is not the same as the corresponding 
criterion of a rule. In these instances, we give full consideration to 
all relevant facts in accordance with the definitions and discussions 
under vocational considerations. However, if the findings of fact made 
about all factors are the same as the rule, we use that rule to decide 
whether a person is disabled.



Sec. 416.969a  Exertional and nonexertional limitations.

    (a) General. Your impairment(s) and related symptoms, such as pain, 
may cause limitations of function or restrictions which limit your 
ability to meet certain demands of jobs. These limitations may be 
exertional, nonexertional, or a combination of both. Limitations are 
classified as exertional if they affect your ability to meet the 
strength demands of jobs. The classification of a limitation as 
exertional is related to the United States Department of Labor's 
classification of jobs by various exertional levels (sedentary, light, 
medium, heavy, and very heavy) in terms of the strength demands for 
sitting, standing, walking, lifting, carrying, pushing, and pulling. 
Sections 416.967 and 416.969 explain how we use the classification of 
jobs by exertional levels (strength demands) which is contained in the 
Dictionary of Occupational Titles published by the Department of Labor, 
to determine the exertional requirements of work which exists in the 
national economy. Limitations or restrictions which affect your ability 
to meet the demands of jobs other than the strength demands, that is, 
demands other than sitting, standing, walking, lifting, carrying, 
pushing or pulling, are considered nonexertional. Sections 416.920(f) 
and 416.994(b)(5)(viii) explain that if you can no longer do your past 
relevant work because of a severe medically determinable impairment(s), 
we must determine whether your impairment(s), when considered along with 
your age, education, and work experience, prevents you from doing any 
other work which exists in the national economy in order to decide 
whether you are disabled (Sec. 416.920(f)) or continue to be disabled 
(Sec. 416.994(b)(5)(viii)). Paragraphs (b), (c), and (d) of this section 
explain how we apply the medical-vocational guidelines in appendix 2 of 
subpart P of part 404 of this chapter in making this determination, 
depending on whether the limitations or restrictions imposed by your 
impairment(s) and related symptoms, such as pain, are exertional, 
nonexertional, or a combination of both.
    (b) Exertional limitations. When the limitations and restrictions 
imposed by your impairment(s) and related symptoms, such as pain, affect 
only your ability to meet the strength demands of jobs (sitting, 
standing, walking, lifting, carrying, pushing, and pulling), we consider 
that you have only exertional limitations. When your impairment(s) and 
related symptoms only impose exertional limitations and your specific 
vocational profile is listed in a rule contained in appendix 2, we will 
directly apply that rule to decide whether you are disabled.
    (c) Nonexertional limitations. (1) When the limitations and 
restrictions imposed by your impairment(s) and related symptoms, such as 
pain, affect only your ability to meet the demands of jobs other than 
the strength demands, we consider that you have only nonexertional 
limitations or restrictions. Some examples of nonexertional limitations 
or restrictions include the following:
    (i) You have difficulty functioning because you are nervous, 
anxious, or depressed;
    (ii) You have difficulty maintaining attention or concentrating;
    (iii) You have difficulty understanding or remembering detailed 
instructions;
    (iv) You have difficulty in seeing or hearing;
    (v) You have difficulty tolerating some physical feature(s) of 
certain work settings, e.g., you cannot tolerate dust or fumes; or
    (vi) You have difficulty performing the manipulative or postural 
functions of some work such as reaching, handling, stooping, climbing, 
crawling, or crouching.
    (2) If your impairment(s) and related symptoms, such as pain, only 
affect

[[Page 765]]

your ability to perform the nonexertional aspects of work-related 
activities, the rules in appendix 2 do not direct factual conclusions of 
disabled or not disabled. The determination as to whether disability 
exists will be based on the principles in the appropriate sections of 
the regulations, giving consideration to the rules for specific case 
situations in appendix 2.
    (d) Combined exertional and nonexertional limitations. When the 
limitations and restrictions imposed by your impairment(s) and related 
symptoms, such as pain, affect your ability to meet both the strength 
and demands of jobs other than the strength demands, we consider that 
you have a combination of exertional and nonexertional limitations or 
restrictions. If your impairment(s) and related symptoms, such as pain, 
affect your ability to meet both the strength and demands of jobs other 
than the strength demands, we will not directly apply the rules in 
appendix 2 unless there is a rule that directs a conclusion that you are 
disabled based upon your strength limitations; otherwise the rules 
provide a framework to guide our decision.

[56 FR 57947, Nov. 14, 1991]

                      Substantial Gainful Activity



Sec. 416.971  General.

    The work that you have done during any period in which you believe 
you are disabled may show that you are able to do work at the 
substantial gainful activity level. If you are able to engage in 
substantial gainful activity, we will find that you are not disabled. 
(We explain the rules for persons who are statutorily blind in 
Sec. 416.984.) Even if the work you have done was not substantial 
gainful activity, it may show that you are able to do more work than you 
actually did. We will consider all of the medical and vocational 
evidence in your file to decide whether or not you have the ability to 
engage in substantial gainful activity.



Sec. 416.972  What we mean by substantial gainful activity.

    Substantial gainful activity is work activity that is both 
substantial and gainful:
    (a) Substantial work activity. Substantial work activity is work 
activity that involves doing significant physical or mental activities. 
Your work may be substantial even if it is done on a part-time basis or 
if you do less, get paid less, or have less responsibility than when you 
worked before.
    (b) Gainful work activity. Gainful work activity is work activity 
that you do for pay or profit. Work activity is gainful if it is the 
kind of work usually done for pay or profit, whether or not a profit is 
realized.
    (c) Some other activities. Generally, we do not consider activities 
like taking care of yourself, household tasks, hobbies, therapy, school 
attendance, club activities, or social programs to be substantial 
gainful activity.



Sec. 416.973  General information about work activity.

    (a) The nature of your work. If your duties require use of your 
experience, skills, supervision and responsibilities, or contribute 
substantially to the operation of a business, this tends to show that 
you have the ability to work at the substantial gainful activity level.
    (b) How well you perform. We consider how well you do your work when 
we determine whether or not you are doing substantial gainful activity. 
If you do your work satisfactorily, this may show that you are working 
at the substantial gainful activity level. If you are unable, because of 
your impairments, to do ordinary or simple tasks satisfactorily without 
more supervision or assistance than is usually given other people doing 
similar work, this may show that you are not working at the substantial 
gainful activity level. If you are doing work that involves minimal 
duties that make little or no demands on you and that are of little or 
no use to your employer, or to the operation of a business if you are 
self-employed, this does not show that you are working at the 
substantial gainful activity level.
    (c) If your work is done under special conditions. Even though the 
work you are doing takes into account your impairment, such as work done 
in a sheltered workshop or as a patient in a hospital, it may still show 
that you have the necessary skills and ability to

[[Page 766]]

work at the substantial gainful activity level.
    (d) If you are self-employed. Supervisory, managerial, advisory or 
other significant personal services that you perform as a self-employed 
individual may show that you are able to do substantial gainful 
activity.
    (e) Time spent in work. While the time you spend in work is 
important, we will not decide whether or not you are doing substantial 
gainful activity only on that basis. We will still evaluate the work to 
decide whether it is substantial and gainful regardless of whether you 
spend more time or less time at the job than workers who are not 
impaired and who are doing similar work as a regular means of their 
livelihood.
    (f) Possible effect on income and resource levels. Your earnings, 
including earnings from work done during a trial work period, will be 
considered under the income and resource provisions in subparts K and L 
of this part to determine whether or not your earnings cause you to 
exceed the limitations on income or resources under the Supplemental 
Security Income Program.



Sec. 416.974  Evaluation guides if you are an employee.

    (a) General. We use several guides to decide whether the work you 
have done shows that you are able to do substantial gainful activity.
    (1) Your earnings may show you have done substantial gainful 
activity. The amount of your earnings from work you have done may show 
that you engaged in substantial gainful activity. Generally, if you 
worked for substantial earnings, this will show that you are able to do 
substantial gainful activity. On the other hand, the fact that your 
earnings are not substantial will not necessarily show that you are not 
able to do substantial gainful activity. We will generally consider work 
that you are forced to stop after a short time because of your 
impairment as an unsuccessful work attempt and your earnings from that 
work will not show that you are able to do substantial gainful activity.
    (2) We consider only the amounts you earn. We do not consider any 
income not directly related to your productivity when we decide whether 
you have done substantial gainful activity. If your earnings are being 
subsidized, the amount of the subsidy is not counted when we determine 
whether or not your work is substantial gainful activity. Thus, where 
work is done under special conditions, we only consider the part of your 
pay which you actually ``earn''. For example, where a handicapped person 
does simple tasks under close and continuous supervision, we would not 
determine that the person worked at the substantial gainful activity 
level only on the basis of the amount of pay. An employer may set a 
specific amount as a subsidy after figuring the reasonable value of the 
employee's services. If your work is subsidized and your employer does 
not set the amount of the subsidy or does not adequately explain how the 
subsidy was figured, we will investigate to see how much your work is 
worth.
    (3) If you are working in a sheltered or special environment. If you 
are working in a sheltered workshop, you may or may not be earning the 
amounts you are being paid. The fact that the sheltered workshop or 
similar facility is operating at a loss or is receiving some charitable 
contributions or governmental aid does not establish that you are not 
earning all you are being paid. Since persons in military service being 
treated for severe impairments usually continue to receive full pay, we 
evaluate work activity in a therapy program or while on limited duty by 
comparing it with similar work in the civilian work force or on the 
basis of reasonable worth of the work, rather than on the actual amount 
of the earnings.
    (b) Earnings guidelines. (1) General. If you are an employee, we 
first consider the criteria in paragraph (a) of this section, and 
Sec. 416.976, and then the guides in paragraphs (b)(2), (3), (4), (5), 
and (6) of this section.
    (2) Earnings that will ordinarily show that you have engaged in 
substantial gainful activity. We will consider that your earnings from 
your work activities as an employee show that you have engaged in 
substantial gainful activity if--
    (i) Your earnings averaged more than $200 a month in calendar years 
prior to 1976;

[[Page 767]]

    (ii) Your earnings averaged more than $230 a month in calendar year 
1976;
    (iii) Your earnings averaged more than $240 a month in calendar year 
1977;
    (iv) Your earnings averaged more than $260 a month in calendar year 
1978;
    (v) Your earnings averaged more than $280 a month in calendar year 
1979;
    (vi) Your earnings averaged more than $300 a month in calendar years 
after 1979 and before 1990; or
    (vii) Your earnings averaged more than $500 a month in calendar 
years after 1989.
    (3) Earnings that will ordinarily show that you have not engaged in 
substantial gainful activity. We will generally consider that the 
earnings from your work as an employee will show that you have not 
engaged in substantial gainful activity if--
    (i) Your earnings averaged less than $130 a month in calendar years 
before 1976;
    (ii) Your earnings averaged less than $150 a month in calendar year 
1976;
    (iii) Your earnings averaged less than $160 a month in calendar year 
1977;
    (iv) Your earnings averaged less than $170 a month in calendar year 
1978;
    (v) Your earnings averaged less than $180 a month in calendar year 
1979;
    (vi) Your earnings averaged less than $190 a month in calendar years 
after 1979 and before 1990; or
    (vii) Your earnings averaged less than $300 a month in calendar 
years after 1989.
    (4) If you work in a sheltered workshop. If you are working in a 
sheltered workshop or a comparable facility especially set up for 
severely impaired persons, your earnings and activities will ordinarily 
establish that you have not done substantial gainful activity if--
    (i) Your average earnings are not greater than $200 a month in 
calendar years prior to 1976;
    (ii) Your average earnings are not greater than $230 a month in 
calendar year 1976;
    (iii) Your average earnings are not greater than $240 a month in 
calendar year 1977;
    (iv) Your average earnings are not greater than $260 a month in 
calendar year 1978;
    (v) Your average earnings are not greater than $280 a month in 
calendar year 1979;
    (vi) Your average earnings are not greater than $300 a month in 
calendar years after 1979 and before 1990; or
    (vii) Your average earnings are not greater than $500 a month in 
calendar years after 1989.
    (5) If there is evidence showing that you may have done substantial 
gainful activity. If there is evidence showing that you may have done 
substantial gainful activity, we will apply the critera in paragraph 
(b)(6) of this section regarding comparability and value of services.
    (6) Earnings that are not high or low enough to show whether you 
engaged in substantial gainful activity. If your earnings, on the 
average, are between the amounts shown in paragraphs (b)(2) and (3) of 
this section, we will generally consider other information in addition 
to your earnings, such as whether--
    (i) Your work is comparable to that of unimpaired people in your 
community who are doing the same or similar occupations as their means 
of livelihood, taking into account the time, energy, skill, and 
responsibility involved in the work, or
    (ii) Your work, although significantly less than that done by 
unimpaired people, is clearly worth the amounts shown in paragraph 
(b)(2) of this section, according to pay scales in your community.

[46 FR 4871, Jan. 19, 1981, as amended at 48 FR 21939, May 16, 1983; 49 
FR 22274, May 29, 1984; 54 FR 53605, Dec. 29, 1989]



Sec. 416.975  Evaluation guides if you are self-employed.

    (a) If you are a self employed person. We will consider your 
activities and their value to your business to decide whether you have 
engaged in substantial gainful activity if you are self-employed. We 
will not consider your income alone since the amount of income you 
actually receive may depend upon a number of different factors like 
capital investment, profit sharing agreements, etc. We will generally 
consider

[[Page 768]]

work that you are forced to stop after a short time because of your 
impairment as an unsuccessful work attempt and your income from that 
work will not show that you are able to do substantial gainful activity. 
We will evaluate your work activity on the value to the business of your 
services regardless of whether you receive an immediate income for your 
services. We consider that you have engaged in substantial gainful 
activity if--
    (1) Your work activity, in terms of factors such as hours, skills, 
energy output, efficiency, duties, and responsibilities, is comparable 
to that of unimpaired individuals in your community who are in the same 
or similar businesses as their means of livelihood;
    (2) Your work activity, although not comparable to that of 
unimpaired individuals, is clearly worth the amount shown in 
Sec. 416.974(b)(2) when considered in terms of its value to the 
business, or when compared to the salary that an owner would pay to an 
employee to do the work you are doing; or
    (3) You render services that are significant to the operation of the 
business and receive a substantial income from the business.
    (b) What we mean by significant services. (1) If you are not a farm 
landlord and you operate a business entirely by yourself, any services 
that you render are significant to the business. If your business 
involves the services of more than one person, we will consider you to 
be rendering significant services if you contribute more than half the 
total time required for the management of the business, or you render 
management services for more than 45 hours a month regardless of the 
total management time required by the business.
    (2) If you are a farm landlord, that is, you rent farm land to 
another, we will consider you to be rendering significant services if 
you materially participate in the production or the management of the 
production of the things raised on the rented farm. (See Sec. 404.1082 
of this chapter for an explanation of ``material participation''.) If 
you were given social security earnings credits because you materially 
participated in the activities of the farm and you continue these same 
activities, we will consider you to be rendering significant services.
    (c) What we mean by substantial income. After your normal business 
expenses are deducted from your gross income to determine net income, we 
will deduct the reasonable value of any unpaid help, any soil bank 
payments that were included as farm income, and impairment-related work 
expenses described in Sec. 416.976 that have not been deducted in 
determining your net earnings from self-employment. We will consider the 
resulting amount of income from the business to be substantial if--
    (1) It averages more than the amounts described in 
Sec. 416.974(b)(2); or
    (2) It averages less than the amounts described in 
Sec. 416.974(b)(2) but the livelihood which you get from the business is 
either comparable to what it was before you became severely impaired or 
is comparable to that of unimpaired self-employed persons in your 
community who are in the same or similar business as their means of 
livelihood.

[46 FR 4872, Jan. 19, 1981, as amended at 48 FR 21940, May 16, 1983; 49 
FR 22274, May 29, 1984]



Sec. 416.976  Impairment-related work expenses.

    (a) General. When we figure your earnings in deciding if you have 
done substantial gainful activity, and in determining your countable 
earned income (see Sec. 416.1112(c)(5)), we will subtract the reasonable 
costs to you of certain items and services which, because of your 
impairment(s), you need and use to enable you to work. The costs are 
deductible even though you also need or use the items and services to 
carry out daily living functions unrelated to your work. Paragraph (b) 
of this section explains the conditions for deducting work expenses. 
Paragraph (c) of this section describes the expenses we will deduct. 
Paragraph (d) of this section explains when expenses may be deducted. 
Paragraph (e) of this section describes how expenses may be allocated. 
Paragraph (f) of this section explains the limitations on deducting 
expenses. Paragraph (g) of this section explains our verification 
procedures.

[[Page 769]]

    (b) Conditions for deducting impairment-related work expenses. We 
will deduct impairment-related work expenses if--
    (1) You are otherwise disabled as defined in Secs. 416.905 through 
416.907;
    (2) The severity of your impairment(s) requires you to purchase (or 
rent) certain items and services in order to work;
    (3) You pay the cost of the item or service. No deduction will be 
allowed to the extent that payment has been or will be made by another 
source. No deduction will be allowed to the extent that you have been, 
could be, or will be reimbursed for such cost by any other source (such 
as through a private insurance plan, Medicare or Medicaid, or other plan 
or agency). For example, if you purchase crutches for $80 but you were, 
could be, or will be reimbursed $64 by some agency, plan, or program, we 
will deduct only $16;
    (4) You pay for the item or service in accordance with paragraph (d) 
of this section; and
    (5) Your payment is in cash (including checks or other forms of 
money). Payment in kind is not deductible.
    (c) What expenses may be deducted--(1) Payments for attendant care 
services. (i) If because of your impairment(s) you need assistance in 
traveling to and from work, or while at work you need assistance with 
personal functions (e.g., eating, toileting) or with work-related 
functions (e.g., reading, communicating), the payments you make for 
those services may be deducted.
    (ii) If because of your impairment(s) you need assistance with 
personal functions (e.g., dressing, administering medications) at home 
in preparation for going to and assistance in returning from work, the 
payments you make for those services may be deducted.
    (iii)(A) We will deduct payments you make to a family member for 
attendant care services only if such person, in order to perform the 
services, suffers an economic loss by terminating his or her employment 
or by reducing the number of hours he or she worked.
    (B) We consider a family member to be anyone who is related to you 
by blood, marriage or adoption, whether or not that person lives with 
you.
    (iv) If only part of your payment to a person is for services that 
come under the provisions of paragraph (c)(1) of this section, we will 
only deduct that part of the payment which is attributable to those 
services. For example, an attendant gets you ready for work and helps 
you in returning from work, which takes about 2 hours a day. The rest of 
his or her 8 hour day is spent cleaning your house and doing your 
laundry, etc. We would only deduct one-fourth of the attendant's daily 
wages as an impairment-related work expense.
    (2) Payments for medical devices. If your impairment(s) requires 
that you utilize medical devices in order to work, the payments you make 
for those devices may be deducted. As used in this subparagraph, medical 
devices include durable medical equipment which can withstand repeated 
use, is customarily used for medical purposes, and is generally not 
useful to a person in the absence of an illness or injury. Examples of 
durable medical equipment are wheelchairs, hemodialysis equipment, 
canes, crutches, inhalators and pacemakers.
    (3) Payments for prosthetic devices. If your impairment(s) requires 
that you utilize a prosthetic device in order to work, the payments you 
make for that device may be deducted. A prosthetic device is that which 
replaces an internal body organ or external body part. Examples of 
prosthetic devices are artificial replacements of arms, legs and other 
parts of the body.
    (4) Payments for equipment--(i) Work-related equipment. If your 
impairment(s) requires that you utilize special equipment in order to do 
your job, the payments you make for that equipment may be deducted. 
Examples of work-related equipment are one-hand typewriters, 
telecommunication devices for the deaf and tools specifically designed 
to accommodate a person's impairment(s).
    (ii) Residential modifications. If your impairment(s) requires that 
you make modifications to your residence, the location of your place of 
work will determine if the cost of these modifications will be deducted. 
If you are employed away from home, only the cost of changes made 
outside of your home to

[[Page 770]]

permit you to get to your means of transportation (e.g., the 
installation of an exterior ramp for a wheel-chair confined person or 
special exterior railings or pathways for someone who requires crutches) 
will be deducted. Costs relating to modifications of the inside of your 
home will not be deducted. If you work at home, the costs of modifying 
the inside of your home in order to create a working space to 
accommodate your impairment(s) will be deducted to the extent that the 
changes pertain specifically to the space in which you work. Examples of 
such changes are the enlargement of a doorway leading into the work 
space or modification of the work space to accommodate problems in 
dexterity. However, if you are self-employed at home, any cost deducted 
as a business expense cannot be deducted as an impairment-related work 
expense.
    (iii) Nonmedical appliances and equipment. Expenses for appliances 
and equipment which you do not ordinarily use for medical purposes are 
generally not deductible. Examples of these items are portable room 
heaters, air conditioners, humidifiers, dehumidifiers, and electric air 
cleaners. However, expenses for such items may be deductible when 
unusual circumstances clearly establish an impairment-related and 
medically verified need for such an item because it is essential for the 
control of your disabling condition, thus enabling you to work. To be 
considered essential, the item must be of such a nature that if it were 
not available to you there would be an immediate adverse impact on your 
ability to function in your work activity. In this situation, the 
expense is deductible whether the item is used at home or in the working 
place. An example would be the need for an electric air cleaner by an 
individual with severe respiratory disease who cannot function in a non-
purified air environment. An item such as an exercycle is not deductible 
if used for general physical fitness. If it is prescribed and used as 
necessary treatment of your impairment and necessary to enable you to 
work, we will deduct payments you make toward its cost.
    (5) Payments for drugs and medical services. (i) If you must use 
drugs or medical services (including diagnostic procedures) to control 
your impairment(s), the payments you make for them may be deducted. The 
drugs or services must be prescribed (or utilized) to reduce or 
eliminate symptoms of your impairment(s) or to slow down its 
progression. The diagnostic procedures must be performed to ascertain 
how the impairment(s) is progressing or to determine what type of 
treatment should be provided for the impairment(s).
    (ii) Examples of deductible drugs and medical services are 
anticonvulsant drugs to control epilepsy or anticonvulsant blood level 
monitoring; antidepressant medication for mental disorders; medication 
used to allay the side effects of certain treatments; radiation 
treatment or chemotherapy for cancer patients; corrective surgery for 
spinal disorders; electroencephalograms and brain scans related to a 
disabling epileptic condition; tests to determine the efficacy of 
medication on a diabetic condition; and immunosuppressive medications 
that kidney transplant patients regularly take to protect against graft 
rejection.
    (iii) We will only deduct the costs of drugs or services that are 
directly related to your impairment(s). Examples of non-deductible items 
are routine annual physical examinations, optician services (unrelated 
to a disabling visual impairment) and dental examinations.
    (6) Payments for similar items and services--(i) General. If you are 
required to utilize items and services not specified in paragraph (c)(1) 
through (5) of this section but which are directly related to your 
impairment(s) and which you need to work, their costs are deductible. 
Examples of such items and services are medical supplies and services 
not discussed above, and transportation.
    (ii) Medical supplies and services not described above. We will 
deduct payments you make for expendable medical supplies, such as 
incontinence pads, catheters, bandages, elastic stockings, face masks, 
irrigating kits, and disposable sheets and bags. We will also deduct 
payments you make for physical therapy which you require because of

[[Page 771]]

your impairment(s) and which you need in order to work.
    (iii) Payments for transportation costs. We will deduct 
transportation costs in these situations:
    (A) Your impairment(s) requires that in order to get to work you 
need a vehicle that has structural or operational modifications. The 
modifications must be critical to your operation or use of the vehicle 
and directly related to your impairment(s). We will deduct the costs of 
the modifications, but not the cost of the vehicle. We will also deduct 
a mileage allowance for the trip to and from work. The allowance will be 
based on data compiled by the Federal Highway Administration relating to 
vehicle operating costs.
    (B) Your impairment(s) requires you to use driver assistance, 
taxicabs or other hired vehicles in order to work. We will deduct 
amounts paid to the driver and, if your own vehicle is used, we will 
also deduct a mileage allowance, as provided in paragraph (c)(6)(iii)(A) 
of this section, for the trip to and from work.
    (C) Your impairment(s) prevents your taking available public 
transportation to and from work and you must drive your (unmodified) 
vehicle to work. If we can verify through your physician or other 
sources that the need to drive is caused by your impairment(s) (and not 
due to the unavailability of public transportation), we will deduct a 
mileage allowance as provided in paragraph (c)(6)(iii)(A) of this 
section, for the trip to and from work.
    (7) Payments for installing, maintaining, and repairing deductible 
items. If the device, equipment, appliance, etc., that you utilize 
qualifies as a deductible item as described in paragraphs (c)(2), (3), 
(4), and (6) of this section, the costs directly related to installing, 
maintaining and repairing these items are also deductible. (The costs 
which are associated with modifications to a vehicle are deductible. 
Except for a mileage allowance, as provided for in paragraph (c)(6)(iii) 
of this section, the costs which are associated with the vehicle itself 
are not deductible.)
    (d) When expenses may be deducted--(1) Effective date. To be 
deductible an expense must be incurred after November 30, 1980. An 
expense may be considered incurred after that date if it is paid 
thereafter even though pursuant to a contract or other arrangement 
entered into before December 1, 1980.
    (2) Payments for services. For the purpose of determining SGA, a 
payment you make for services may be deducted if the services are 
received while you are working and the payment is made in a month you 
are working. We consider you to be working even though you must leave 
work temporarily to receive the services. For the purpose of determining 
your SSI monthly payment amount, a payment you make for services may be 
deducted if the payment is made in the month your earned income is 
received and the earned income is for work done in the month you 
received the services. If you begin working and make a payment before 
the month earned income is received, the payment is also deductible. If 
you make a payment after you stop working, and the payment is made in 
the month you received earned income for work done in the month you 
received the services, the payment is also deductible.
    (3) Payment for items. For the purpose of determining SGA, a payment 
you make toward the cost of a deductible item (regardless of when it is 
acquired) may be deducted if payment is made in a month you are working. 
For the purpose of determining your SSI monthly payment amount, a 
payment you make toward the cost of a deductible item (regardless of 
when it is acquired) may be deducted if the payment is made in the month 
your earned income is received and the earned income is for work done in 
the month you used the item. If you begin working and make a payment 
before the month earned income is received, the payment is also 
deductible. If you make a payment after you stop working, and the 
payment is made in the month you received earned income for work done in 
the month you used the item, the payment is also deductible. See 
paragraph (e)(4) of this section when purchases are made in anticipation 
of work.
    (e) How expenses are allocated--(1) Re- curring expenses. You may 
pay for services on a regular periodic basis, or you may purchase an 
item on credit and

[[Page 772]]

pay for it in regular periodic installments or you may rent an item. If 
so, each payment you make for the services and each payment you make 
toward the purchase or rental (including interest) is deductible as 
described in paragraph (d) of this section.
    Example.  B starts work in October 1981 at which time she purchases 
a medical device at a cost of $4,800 plus interest charges of $720. Her 
monthly payments begin in October. She earns and receives $400 a month. 
The term of the installment contract is 48 months. No downpayment is 
made. The monthly allowable deduction for the item would be $115 ($5520 
divided by 48) for each month of work (for SGA purposes) and for each 
month earned income is received (for SSI payment purposes) during the 48 
months.
    (2) Nonrecurring expenses. Part or all of your expenses may not be 
recurring. For example, you may make a one-time payment in full for an 
item or service or make a downpayment. For the purpose of determining 
SGA, if you are working when you make the payment we will either deduct 
the entire amount in the month you pay it or allocate the amount over a 
12 consecutive month period beginning with the month of payment, 
whichever you select. For the purpose of determining your SSI monthly 
payment amount, if you are working in the month you make the payment and 
the payment is made in a month earned income is received, we will either 
deduct the entire amount in that month, or we will allocate the amount 
over a 12 consecutive month period, beginning with that month, whichever 
you select. If you begin working and do not receive earned income in the 
month you make the payment, we will either deduct or begin allocating 
the payment amount in the first month you do receive earned income. If 
you make a payment for services or items after you stopped working, we 
will deduct the payment if it was made in the month you received earned 
income for work done in the month you received the services or used the 
item.
    Example.  A begins working in October 1981 and earns and receives 
$525 a month. In the same month he purchases and pays for a deductible 
item at a cost of $250. In this situation we could allow a $250 
deduction for both SGA and SSI payment purposes for October 1981, 
reducing A's earnings below the SGA level for that month.
    If A's earnings had been $15 above the SGA earnings amount, A 
probably would select the option of projecting the $250 payment over the 
12-month period, October 1981-September 1982, giving A an allowable 
deduction of $20.83 a month for each month of work (for SGA purposes) 
and for each month earned income is received (for SSI payment purposes) 
during that period. This deduction would reduce A's earnings below the 
SGA level for 12 months.
    (3) Allocating downpayments. If you make a downpayment we will, if 
you choose, make a separate calculation for the downpayment in order to 
provide for uniform monthly deductions. In these situations we will 
determine the total payment that you will make over a 12 consecutive 
month period beginning with the month of the downpayment and allocate 
that amount over the 12 months. Beginning with the 13th month, the 
regular monthly payment will be deductible. This allocation process will 
be for a shorter period if your regular monthly payments will extend 
over a period of less than 12 months.
    Example 1.  C starts working in October 1981, at which time he 
purchases special equipment at a cost of $4,800, paying $1,200 down. The 
balance of $3,600, plus interest of $540, is to be repaid in 36 
installments of $115 a month beginning November 1981. C earns and 
receives $500 a month. He chooses to have the downpayment allocated. In 
this situation we would allow a deduction of $205.42 a month for each 
month of work (for SGA purposes) and for each month earned income is 
received (for SSI payment purposes) during the period October 1981 
through September 1982. After September 1982, the deduction amount would 
be the regular monthly payment of $115 for each month of work (for SGA 
purposes) and for each month earned income is received (for SSI payment 
purposes) during the remaining installment period.

Explanation:                                                            
  Downpayment in 10/81..........................      $1,200            
  Monthly payments 11/81 through 09/82..........       1,265            
                                                 ------------           
                                                   12) 2,465   =$205.42.
                                                                        

    Example 2.  D, while working, buys a deductible item in July 1981, 
paying $1,450 down. (D earns and receives $500 a month.) However, his 
first monthly payment of $125 is not due until September 1981. D chooses 
to have the downpayment allocated. In this situation we would allow a 
deduction of $225 a month for each month of work (for SGA purposes) and 
for each month earned income is received (for SSI payment purposes) 
during the period July 1981 through June 1982. After

[[Page 773]]

June 1982, the deduction amount would be the regular monthly payment of 
$125 for each month of work (for SGA purposes) and for each month earned 
income is received (for SSI payment purposes).

Explanation:                                                            
  Downpayment in 07/81..........................      $1,450            
  Monthly payments 09/81 through 06/82..........       1,250            
                                                 ------------           
                                                   12) 2,700       =225.
                                                                        

    (4) Payments made in anticipation of work. A payment toward the cost 
of a deductible item that you made in any of the 11 months preceding the 
month you started working will be taken into account in determining your 
impairment-related work expenses. When an item is paid for in full 
during the 11 months preceding the month you started working the payment 
will be allocated over the 12-consecutive month period beginning with 
the month of the payment. However, the only portion of the payment which 
may be deductible is the portion allocated to the month work begins and 
the following months. For example, if an item is purchased 3 months 
before the month work began and is paid for with a one-time payment of 
$600, the deductible amount would be $450 ($600 divided by 12, 
multiplied by 9). Installment payments (including a downpayment) that 
you made for a particular item during the 11 months preceding the month 
you started working will be totaled and considered to have been made in 
the month of your first payment for that item within this 11 month 
period. The sum of these payments will be allocated over the 12-
consecutive month period beginning with the month of your first payment 
(but never earlier than 11 months before the month work began). However, 
the only portion of the total which may be deductible is the portion 
allocated to the month work begins and the following months. For 
example, if an item is purchased 3 months before the month work began 
and is paid for in 3 monthly installments of $200 each, the total 
payment of $600 will be considered to have been made in the month of the 
first payment, that is, 3 months before the month work began. The 
deductible amount would be $450 ($600 divided by 12, multiplied by 9). 
The amount, as determined by these formulas, will then be considered to 
have been paid in the first month of work for the purpose of determining 
SGA and in the first month earned income is received for the purpose of 
determining the SSI monthly payment amount. For the purpose of 
determining SGA, we will deduct either the entire amount in the first 
month of work or allocate it over a 12 consecutive month period 
beginning with the first month of work, whichever you select. In the 
above examples, the individual would have the choice of having the 
entire $450 deducted in the first month of work or of having $37.50 a 
month ($450 divided by 12) deducted for each month that he works over a 
12-consecutive month period, beginning with the first month of work. For 
the purpose of determining the SSI payment amount, we will either deduct 
the entire amount in the first month earned income is received or 
allocate it over a 12-consecutive month period beginning with the first 
month earned income is received, whichever you select. In the above 
examples, the individual would have the choice of having the entire $450 
deducted in the first month earned income is received or of having 
$37.50 a month ($450 divided by 12) deducted for each month he receives 
earned income (for work) over a 12-consecutive month period, beginning 
with the first month earned income is received. To be deductible the 
payments must be for durable items such as medical devices, prostheses, 
work-related equipment, residential modifications, nonmedical appliances 
and vehicle modifications. Payments for services and expendable items 
such as drugs, oxygen, diagnostic procedures, medical supplies and 
vehicle operating costs are not deductible for purposes of this 
paragraph.
    (f) Limits on deductions. (1) We will deduct the actual amounts you 
pay toward your impairment-related work expenses unless the amounts are 
unreasonable. With respect to durable medical equipment, prosthetic 
devices, medical services, and similar medically related items and 
services, we will apply the prevailing charges under Medicare (part B of 
title XVIII, Health Insurance for the Aged and Disabled) to the extent 
that this information is readily available. Where the Medicare guides 
are used, we will consider the amount

[[Page 774]]

that you pay to be reasonable if it is no more than the prevailing 
charge for the same item or service under the Medicare guidelines. If 
the amount you actually pay is more than the prevailing charge for the 
same item under the Medicare guidelines, we will deduct from your 
earnings the amount you paid to the extent you establish that the amount 
is consistent with the standard or normal charge for the same or similar 
item or service in your community. For items and services that are not 
listed in the Medicare guidelines, and for items and services that are 
listed in the Medicare guidelines but for which such guides cannot be 
used because the information is not readily available, we will consider 
the amount you pay to be reasonable if it does not exceed the standard 
or normal charge for the same or similar item(s) or service(s) in your 
community.
    (2) Impairment-related work expenses are not deducted in computing 
your earnings for purposes of determining whether your work was 
``services'' as described in Sec. 416.992(b).
    (3) The decision as to whether you performed substantial gainful 
activity in a case involving impairment-related work expenses for items 
or services necessary for you to work generally will be based upon your 
``earnings'' and not on the value of ``services'' you rendered. (See 
Secs. 416.974(b)(6) (i) and (ii), and 416.975(a)). This is not 
necessarily so, however, if you are in a position to control or 
manipulate your earnings.
    (4) The amount of the expenses to be deducted must be determined in 
a uniform manner in both the disability insurance and SSI programs. The 
amount of deductions must, therefore, be the same for determinations as 
to substantial gainful activity under both programs. The deductions that 
apply in determining the SSI payment amounts, though determined in the 
same manner as for SGA determinations, are applied so that they 
correspond to the timing of the receipt of the earned income to be 
excluded.
    (5) No deduction will be allowed to the extent that any other source 
has paid or will pay for an item or service. No deduction will be 
allowed to the extent that you have been, could be, or will be, 
reimbursed for payments you made. (See paragraph (b)(3) of this 
section.)
    (6) The provisions described in the foregoing paragraphs of this 
section are effective with respect to expenses incurred on and after 
December 1, 1980, although expenses incurred after November 1980 as a 
result of contractual or other arrangements entered into before December 
1980, are deductible. For months before December 1980 we will deduct 
impairment-related work expenses from your earnings only to the extent 
they exceeded the normal work-related expenses you would have had if you 
did not have your impairment(s). We will not deduct expenses, however, 
for those things which you needed even when you were not working.
    (g) Verification. We will verify your need for items or services for 
which deductions are claimed, and the amount of the charges for those 
items or services. You will also be asked to provide proof that you paid 
for the items or services.

[48 FR 21940, May 16, 1983]

                                Blindness



Sec. 416.981  Meaning of blindness as defined in the law.

    We will consider you blind under the law for payment of supplemental 
security income benefits if we determine that you are statutorily blind. 
Statutory blindness is central visual acuity of 20/200 or less in the 
better eye with the use of a correcting lens. An eye which has a 
limitation in the field of vision so that the widest diameter of the 
visual field subtends an angle no greater than 20 degrees is considered 
to have a central visual acuity of 20/200 or less.



Sec. 416.982  Blindness under a State plan.

    We shall also consider you blind for the purposes of payment of 
supplemental security income benefits if--
    (a) You were found to be blind as defined under a State plan 
approved under title X or title XVI of the Social Security Act, as in 
effect for October 1972;
    (b) You received aid under the State plan because of your blindness 
for the month of December 1973; and

[[Page 775]]

    (c) You continue to be blind as defined under the State plan.



Sec. 416.983  How we evaluate statutory blindness.

    We will find that you are blind if you are statutorily blind within 
the meaning of Sec. 416.981. For us to find that you are statutorily 
blind, it is not necessary--
    (a) That your blindness meet the duration requirement; or
    (b) That you be unable to do any substantial gainful activity.



Sec. 416.984  If you are statutorily blind and still working.

    There is no requirement that you be unable to work in order for us 
to find that you are blind. However, if you are working, your earnings 
will be considered under the income and resources rules in subparts K 
and L of this part. This means that if your income or resources exceed 
the limitations, you will not be eligible for benefits, even though you 
are blind.



Sec. 416.985  How we evaluate other visual impairments.

    If you are not blind as defined in the law, we will evaluate a 
visual impairment the same as we evaluate other impairments in 
determining disability. Although you will not qualify for benefits on 
the basis of blindness, you may still be eligible for benefits if we 
find that you are disabled as defined in Secs. 416.905 through 416.907.



Sec. 416.986  Why and when we will find that you are no longer entitled to benefits based on statutory blindness.

    (a) If your vision does not meet the definition of blindness. If you 
become entitled to payments as a statutorily blind person and your 
statutory blindness ends, your eligibility for payments generally will 
end 2 months after your blindness ends. We will find that your statutory 
blindness has ended beginning with the earliest of the following 
months--
    (1) The month your vision, based on current medical evidence, does 
not meet the definition of blindness and you were disabled only for a 
specified period of time in the past;
    (2) The month your vision based on current medical evidence, does 
not meet the definition of blindness, but not earlier than the month in 
which we mail you a notice saying that the information we have shows 
that you are not now blind; or
    (3) The first month in which you fail to follow prescribed treatment 
that can restore your ability to work (see Sec. 416.930).
    (b) If you were found blind as defined in a State plan. If you 
become eligible for payments because you were blind as defined in a 
State plan, we will find that your blindness has ended beginning with 
the first month in which your vision, as shown by medical or other 
evidence, does not meet the criteria of the appropriate State plan or 
the first month in which your vision does not meet the definition of 
statutory blindness (Sec. 416.981), whichever is later, and in neither 
event earlier than the month in which we mail you a notice saying that 
we have determined that you are not now blind under a State plan or not 
now statutorily blind, as appropriate.
    (c) If you do not cooperate with us. If you are asked to give us 
medical or other evidence or to go for a physical or mental examination 
by a certain date, we will find that your blindness ended if you fail, 
without good cause, to do what we ask. Section 416.1411 explains the 
factors we consider and how we will determine generally whether you have 
good cause for failure to cooperate. In addition, Sec. 416.918 discusses 
how we determine whether you have good cause for failing to attend a 
consultative examination. The month in which your blindness ends will be 
the month in which you fail to do what we asked.
    (d) Before we stop your payments. Before we stop payment of your 
benefits we will give you a chance to give us your reasons why we should 
not stop payment. Subpart M of this part describes your rights and the 
procedures we will follow.

[45 FR 55621, Aug. 20, 1980, as amended at 50 FR 50137, Dec. 6, 1985; 51 
FR 7603, Feb. 28, 1986; 59 FR 1636, Jan. 12, 1994]

[[Page 776]]

      Disability Redeterminations for Individuals Who Attain Age 18



Sec. 416.987  Disability redeterminations for individuals who attain age 18.

    (a)(1) Public Law 104-193, The Personal Responsibility and Work 
Opportunity Reconciliation Act of 1996, requires that the individuals 
described in paragraph (b) of this section must have their eligibility 
redetermined.
    (2) For these individuals, subject to the provisions of paragraphs 
(b)(2) and (b)(3) of this section, we will use the rules for new 
applicants; we will not use the rules for determining whether disability 
continues set out in Sec. 416.994. If you are an individual affected by 
the provisions of this section, we may find that you are not now 
disabled even though we previously found that you were disabled.
    (3) Before we begin your disability redetermination, we will notify 
you that we are redetermining your eligibility for payments, why we are 
redetermining your eligibility, which disability rules we will apply, 
that our review could result in a finding that your SSI payments based 
on disability could be terminated, that you have the right to submit 
medical and other evidence for our consideration during the 
redetermination, and that when we make our determination, we will notify 
you of our determination, your right to appeal the determination, and 
your right to request continuation of benefits during appeal.
    (4) We will notify you in writing of the results of the disability 
redetermination. The notice will tell you what our determination is, the 
reasons for our determination and your right to request reconsideration 
of the determination. If our determination shows that we should stop 
your SSI payments based on disability, the notice will also tell you of 
your right to request that your benefits continue during any appeal. The 
results of an initial disability redetermination are binding unless you 
request a reconsideration within the stated time period, or we revise 
the initial determination.
    (b)(1) We will redetermine the eligibility of individuals
    (i) Who became eligible for SSI benefits by reason of disability 
prior to attaining age 18, and
    (ii) Who also were eligible for such benefits for the month before 
the month in which they attained age 18.
    (2) When we make this determination, we will apply the rules in 
Secs. 416.920(c)-(f); we will not apply the rules in Sec. 416.920(b) or 
Sec. 416.994.
    (3) If you are an individual affected by the provisions of this 
section, and you are disabled under Sec. 416.920 (d) or (f), and you are 
working, we will apply the rules in Secs. 416.260 ff.
    (4) We will initiate this disability redetermination during the 1-
year period beginning on your 18th birthday.
    (5) If we find that you are not disabled under the rules in 
Sec. 416.920 (except Sec. 416.920(b)), your eligibility will end. The 
month in which we will find you not disabled is explained in paragraph 
(b)(6) of this section; the month your benefits will stop is explained 
in paragraph (b)(7) of this section.
    (6) If the evidence shows that you are not disabled, we will find 
that your disability ended in the earliest of:
    (i) The month the evidence shows that you are not disabled under the 
rules set out in this section, but not earlier than the month in which 
we mail you a notice saying that you are not disabled.
    (ii) The first month in which you failed without good cause to 
follow prescribed treatment under the rules in Sec. 416.930.
    (iii) The first month in which you failed without good cause to do 
what we asked. Section 416.1411 explains the factors we will consider 
and how we will determine generally whether you have good cause for 
failure to cooperate. In addition, Sec. 416.918 discusses how we 
determine whether you have good cause for failing to attend a 
consultative examination.

[62 FR 6429, Feb. 11, 1997]

    Effective Date Note:  At 62 FR 6429, Feb. 11, 1997, Sec. 416.987 was 
added, effective Apr. 14, 1997.

[[Page 777]]

             Continuing or Stopping Disability or Blindness



Sec. 416.988  Your responsibility to tell us of events that may change your disability or blindness status.

    If you are entitled to payments because you are disabled or blind, 
you should promptly tell us if--
    (a) Your condition improves;
    (b) Your return to work;
    (c) You increase the amount of your work; or
    (d) Your earnings increase.



Sec. 416.989  We may conduct a review to find out whether you continue to be disabled.

    After we find that you are disabled, we must evaluate your 
impairment(s) from time to time to determine if you are still eligible 
for payments based on disability. We call this evaluation a continuing 
disability review. We may begin a continuing disability review for any 
number of reasons including your failure to follow the provisions of the 
Social Security Act or these regulations. When we begin such a review, 
we will notify you that we are reviewing your eligibility for payments, 
why we are reviewing your eligibility, that in medical reviews the 
medical improvement review standard will apply, that our review could 
result in the termination of your payments, and that you have the right 
to submit medical and other evidence for our consideration during the 
continuing disability review. In doing a medical review, we will develop 
a complete medical history of at least the preceding 12 months in any 
case in which a determination is made that you are no longer under a 
disability. If this review shows that we should stop your payments, we 
will notify you in writing and give you an opportunity to appeal. In 
Sec. 416.990 we describe those events that may prompt us to review 
whether you continue to be disabled.

[51 FR 16826, May 7, 1986]



Sec. 416.989a  We may conduct a review to find out whether you continue to be blind.

    After we find that you are blind, we must evaluate your 
impairment(s) from time to time to determine if you are still eligible 
for payments based on blindness. We call this evaluation a continuing 
disability review. We may begin a continuing disability review for any 
number of reasons including your failure to follow the provisions of the 
Social Security Act or these regulations. When we begin such a review, 
we will notify you that we are reviewing your eligibility for payments, 
why we are reviewing your eligibility, that our review could result in 
the termination of your payments, and that you have the right to submit 
medical and other evidence for our consideration during the continuing 
disability review. In doing a medical review, we will develop a complete 
medical history of at least the preceding 12 months in any case in which 
a determination is made that you are no longer blind. If this review 
shows that we should stop your payments, we will notify you in writing 
and give you an opportunity to appeal. In Sec. 416.990 we describe those 
events that may prompt us to review whether you continue to be blind.

[51 FR 16826, May 7, 1986]



Sec. 416.990  When and how often we will conduct a continuing disability review.

    (a) General. We conduct continuing disability reviews to determine 
whether or not you continue to meet the disability or blindness 
requirements of the law. Payment ends if the medical or other evidence 
shows that you are not disabled or blind as determined under the 
standards set out in section 1614(a) of the Social Security Act if you 
receive benefits based on disability or Sec. 416.986 of this subpart if 
you receive benefits based on blindness.
    (b) When we will conduct a continuing disability review. A 
continuing disability review will be started if--
    (1) You have been scheduled for a medical improvement expected diary 
review;
    (2) You have been scheduled for a periodic review (medical 
improvement possible or medical improvement not expected) in accordance 
with the provisions of paragraph (d) of this section;
    (3) We need a current medical or other report to see if your 
disability continues. (This could happen when, for example, an advance 
in medical

[[Page 778]]

technology, such as improved treatment for Alzheimer's disease, or a 
change in vocational therapy or technology raises a disability issue);
    (4) You return to work and successfully complete a period of trial 
work;
    (5) Substantial earnings are reported to your wage record;
    (6) You tell us that you have recovered from your disability or that 
you have returned to work;
    (7) Your State Vocational Rehabilitation Agency tells us that--
    (i) The services have been completed; or
    (ii) You are now working; or
    (iii) You are able to work;
    (8) Someone in a position to know of your physical or mental 
condition tells us that you are not disabled or blind, that you are not 
following prescribed treatment, that you have returned to work, or that 
you are failing to follow the provisions of the Social Security Act or 
these regulations, and it appears that the report could be substantially 
correct;
    (9) Evidence we receive raises a question whether your disability or 
blindness continues;
    (10) You have been scheduled for a vocational reexamination diary 
review; or
    (11) By your first birthday, if you are a child whose low birth 
weight was a contributing factor material to our determination that you 
were disabled; i.e., whether we would have found you disabled if we had 
not considered your low birth weight.
    (c) Definitions. As used in this section--
    Medical improvement expected diary--refers to a case which is 
scheduled for review at a later date because the individual's 
impairment(s) is expected to improve. Generally, the diary period is set 
for not less than 6 months or for not more than 18 months. Examples of 
cases likely to be scheduled for medical improvement expected diary are 
fractures and cases in which corrective surgery is planned and recovery 
can be anticipated.
    Permanent impairment--medical improvement not expected--refers to a 
case in which any medical improvement in a person's impairment(s) is not 
expected. This means an extremely severe condition determined on the 
basis of our experience in administering the disability programs to be 
at least static, but more likely to be progressively disabling either by 
itself or by reason of impairment complications, and unlikely to improve 
so as to permit the individual to engage in substantial gainful activity 
or, if you are a child, unlikely to improve to the point that you will 
no longer have marked and severe functional limitations. The interaction 
of the individual's age, impairment consequences and the lack of recent 
attachment to the labor market may also be considered in determining 
whether an impairment is permanent. Improvement which is considered 
temporary under Sec. 416.994(b)(2)(iv)(D) or Sec. 416.994(c)(2)(iv), as 
appropriate, will not be considered in deciding if an impairment is 
permanent. Examples of permanent impairments taken from the list 
contained in our other written guidelines which are available for public 
review are as follows and are not intended to be all inclusive:
    (1) Parkinsonian Syndrome which has reached the level of severity 
necessary to meet the Listing in appendix 1 of subpart P or part 404 of 
this chapter.
    (2) Amyotrophic Lateral Sclerosis which has reached the level of 
severity necessary to meet the Listing in appendix 1 of subpart P of 
part 404 of this chapter.
    (3) Diffuse pulmonary fibrosis in an individual age 55 or over which 
has reached the level of severity necessary to meet the Listing in 
appendix 1 of subpart P of part 404 of this chapter.
    (4) Amputation of leg at hip.
    Nonpermanent impairment--refers to a case in which any medical 
improvement in the person's impairment(s) is possible. This means an 
impairment for which improvement cannot be predicted based on current 
experience and the facts of the particular case but which is not at the 
level of severity of an impairment that is considered permanent. 
Examples of nonpermanent impairments are: Regional enteritis, 
hyperthyroidism, and chronic ulcerative colitis.
    Vocational reexamination diary--refers to a case which is scheduled 
for review at a later date because the individual is

[[Page 779]]

undergoing vocational therapy, training or an educational program which 
may improve his or her ability to work so that the disability or 
blindness requirement of the law is no longer met. Generally, the diary 
period will be set for the length of the training, therapy, or program 
of education.
    (d) Frequency of review. If your impairment is expected to improve, 
generally we will review your continuing eligibility for payments based 
on disability or blindness at intervals from 6 months to 18 months 
following our most recent decision. Our notice to you about the review 
of your case will tell you more precisely when the review will be 
conducted. If your disability is not considered permanent but is such 
that any medical improvement in your impairment(s) cannot be accurately 
predicted, we will review your continuing eligibility for payments at 
least once every 3 years. If your disability is considered permanent, we 
will review your continuing eligibility for payments no less frequently 
than once every 7 years but no more frequently than once every 5 years. 
Regardless of your classification we will conduct an immediate 
continuing disability review if a question of continuing disability is 
raised pursuant to paragraph (b) of this section.
    (e) Change in classification of impairment. If the evidence 
developed during a continuing disability review demonstrates that your 
impairment has improved, is expected to improve, or has worsened since 
the last review, we may reclassify your impairment to reflect this 
change in severity. A change in the classification of your impairment 
will change the frequency with which we will review your case. We may 
also reclassify certain impairments because of improved tests, 
treatment, and other technical advances concerning those impairments.
    (f) Review after administrative appeal. If you were found eligible 
to receive or to continue to receive, payments on the basis of a 
decision by an administrative law judge, the Appeals Council or a 
Federal court, we will not conduct a continuing disability review 
earlier than 3 years after that decision unless your case should be 
scheduled for a medical improvement expected or vocational reexamination 
diary review or a question of continuing disability is raised pursuant 
to paragraph (b) of this section.
    (g) Waiver of timeframes. All cases involving a nonpermanent 
impairment will be reviewed by us at least once every 3 years unless we, 
after consultation with the State agency, determine that the requirement 
should be waived to ensure that only the appropriate number of cases are 
reviewed. The appropriate number of cases to be reviewed is to be based 
on such considerations as the backlog of pending reviews, the projected 
number of new applications, and projected staffing levels. Such waiver 
shall be given only after good faith effort on the part of the State to 
meet staffing requirements and to process the reviews on a timely basis. 
Availability of independent medical resources may also be a factor. A 
waiver in this context refers to our administrative discretion to 
determine the appropriate number of cases to be reviewed on a State by 
State basis. Therefore, your continuing disability review may be delayed 
longer than 3 years following our original decision or other review 
under certain circumstances. Such a delay would be based on our need to 
ensure that backlogs, reviews required to be performed by the Social 
Security Disability Benefits Reform Act (Pub. L. 98-460), and new 
disability claims workloads are accomplished within available medical 
and other resources in the State agency and that such reviews are done 
carefully and accurately.

[51 FR 16826, May 7, 1986, as amended at 62 FR 6430, Feb. 11, 1997]

    Effective Date Note:  At 62 FR 6430, Feb. 11, 1997, Sec. 416.990 was 
amended by revising paragraphs (b) (9) and (10), adding paragraph 
(b)(11), and revising the first and second sentences of the definition 
of Permanent impairment in paragraph (c), effective Apr. 14, 1997. For 
the convenience of the user, the superseded text is set forth as 
follows:

Sec. 416.990  When and how often we will conduct a continuing disability 
          review.

                                * * * * *

    (b) * * *
    (9) Evidence we receive raises a question as to whether your 
disability or blindness continues; or

[[Page 780]]

    (10) You have been scheduled for a vocational reexamination diary 
review.

                                * * * * *

    (c) * * *
    Permanent impairment--medical improvement not expected--refers to a 
case in which any medical improvement in a person's impairment(s) is not 
expected. This means an extremely severe condition determined on the 
basis of our experience in administering the disability programs to be 
at least static, but more likely to be progressively disabling either by 
itself or by reason of impairment complications, and unlikely to improve 
so as to permit the individual to engage in substantial gainful 
activity. * * *

                                * * * * *



Sec. 416.991  If your medical recovery was expected and you returned to work.

    If your impairment was expected to improve and you returned to full-
time work with no significant medical limitations and acknowledge that 
medical improvement has occurred, we may find that your disability ended 
in the month you returned to work. Unless there is evidence showing that 
your disability has not ended, we will use the medical and other 
evidence already in your file and the fact that you returned to full-
time work without significant limitations to determine that you are no 
longer disabled. (If your impairment is not expected to improve, we will 
not ordinarily review your claim until the end of the trial work period, 
as described in Sec. 416.992).
    Example:  Evidence obtained during the processing of your claim 
showed that you had an impairment that was expected to improve about 18 
months after your disability began. We, therefore, told you that your 
claim would be reviewed again at that time. However, before the time 
arrived for your scheduled medical re-examination, you told us that you 
had returned to work and your impairment had improved. We reviewed your 
claim immediately and found that, in the 16th month after your 
disability began, you returned to full-time work without any significant 
medical restrictions. Therefore, we would find that your disability 
ended in the first month you returned to full-time work.

[50 FR 50137, Dec. 6, 1985]



Sec. 416.992  The trial work period.

    (a) Definition of the trial work period. The trial work period is a 
period during which you may test your ability to work and still be 
considered disabled. It begins and ends as described in paragraph (e) of 
this section. During this period, you may perform services (see 
paragraph (b) of this section) in as many as 9 months, but these months 
do not have to be consecutive. We will not consider those services as 
showing that your disability has ended until you have performed services 
in at least 9 months. However, during this trial work period we will 
evaluate your earnings under the income and resources rules in subparts 
K and L of this part. This means that if your income or resources exceed 
the limitations, you will not be eligible for payments even though you 
have not worked a full 9 months. (See paragraph (e) of this section.) 
After the trial work period has ended we will consider the work you did 
during the trial work period in determining whether your disability 
ended at any time after the trial work period.
    (b) What we mean by services. When used in this section, services 
means any activity, even though it is not substantial gainful activity, 
which is done by a person in employment or self-employment for pay or 
profit, or is the kind normally done for pay or profit. If you are an 
employee, we will consider your work to be services if in any calendar 
year after 1978 you earn more than $75 a month ($50 a month is the 
figure for earnings in any calendar year before 1979). If you are self-
employed, we will consider your activities services if in any calendar 
year after 1978 your net earnings are more than $75 a month ($50 a month 
is the figure for earning in any calendar year before 1979), or you work 
more than 15 hours a month in the business. We generally do not consider 
work to be services when it is done without remuneration or merely as 
therapy or training, or when it is work usually done in a daily routine 
around the house or in self-care.
    (c) Limitations on the number of trial work periods. You may have 
only one trial work period during a period of entitlement to cash 
payments.
    (d) When the trial work period begins and ends. The trial work 
period begins with the month in which you become

[[Page 781]]

entitled to benefits. It cannot begin before the month in which you file 
your application for benefits. It ends with the close of whichever of 
the following calendar months is the earlier:
    (1) The 9th month (whether or not the months have been consecutive) 
in which you have performed services; or
    (2) The month in which new evidence, other than evidence relating to 
any work you did during the trial work period, shows that you are not 
disabled, even though you have not worked a full 9 months. We may find 
that your disability has ended at any time during the trial work period 
if the medical or other evidence shows that you are no longer disabled 
(see Sec. 416.994).
    (e) If you fail to meet other eligibility factors. We will count the 
services you do while disabled towards your period of trial work even 
though you may be ineligible for payments for other reasons. The months 
in which you are eligible for payments will be evaluated for trial work 
purposes upon reestablishment of your eligibility for payments under 
this part as though your eligibility had not been interrupted.

[45 FR 55621, Aug. 20, 1980, as amended at 50 FR 50137, Dec. 6, 1985; 51 
FR 16015, Apr. 30, 1986]



Sec. 416.992a  The reentitlement period.

    (a) General. The reentitlement period is an additional period after 
9 months of trial work during which you may continue to test you ability 
to work if you have a disabling impairment.

Generally, you will not be paid benefits for any month, after the third 
month, in this period in which you do substantial gainful activity 
unless you qualify for the special benefits explained in Sec. 416.261. 
You will be paid benefits for months in which you do not do substantial 
gainful activity and you meet all the other eligibility requirements. 
(See Sec. 416.1331.) If your benefits are stopped because you do 
substantial gainful activity they may be started again without a new 
application and a new determination of disability if you discontinue 
doing substantial gainful activity during this period. In determining, 
for reentitlement benefit purposes, whether you do SGA in a month during 
the reentitlement period we only consider your work in or earnings for 
that month; we do not consider the average amount of your work or 
earnings over a period of months.
    (b) When the reentitlement period begins and ends. The reentitlement 
period begins with the first month following completion of 9 months of 
trial work but cannot begin earlier than December 1, 1980. It ends with 
whichever is earlier--
    (1) The month before the first month in which your impairment is 
determined to no longer exist or not to be disabling; or
    (2) The last day of the 15th month following the end of your trial 
work period. (See Sec. 416.1331 for when your benefits end.)

[49 FR 22274, May 29, 1984]



Sec. 416.993  Medical evidence in continuing disability review cases.

    (a) General. If you are entitled to benefits because you are 
disabled, we will have your case file with the supporting medical 
evidence previously used to establish or continue your entitlement. 
Generally, therefore, the medical evidence we will need for a continuing 
disability review will be that required to make a current determination 
or decision as to whether you are still disabled, as defined under the 
medical improvement review standard. See Secs. 416.979 and 416.994.
    (b) Obtaining evidence from your medical sources. You must provide 
us with reports from your physician, psychologist, or others who have 
treated or evaluated you, as well as any other evidence that will help 
us determine if you are still disabled. See Sec. 416.912. You must have 
a good reason for not giving us this information or we may find that 
your disability has ended. See Sec. 416.994(e)(2). lf we ask you, you 
must contact your medical sources to help us get the medical reports. We 
will make every reasonable effort to help you in getting medical reports 
when you give us permission to request them from your physician, 
psychologist, or other medical sources. See Sec. 416.912(d)(1) 
concerning what we mean by every reasonable effort. In some instances, 
such as when a source is known to be unable to provide certain tests or 
procedures or is known to be

[[Page 782]]

nonproductive or uncooperative, we may order a consultative examination 
while awaiting receipt of medical source evidence. Before deciding that 
your disability has ended, we will develop a complete medical history 
covering at least the 12 months preceding the date you sign a report 
about your continuing disability status. See Sec. 416.912(c).
    (c) When we will purchase a consultative examination. A consultative 
examination may be purchased when we need additional evidence to 
determine whether or not your disability continues. As a result, we may 
ask you, upon our request and reasonable notice, to undergo consultative 
examinations and tests to help us determine if you are still disabled. 
See Sec. 416.917. We will decide whether or not to purchase a 
consultative examination in accordance with the standards in 
Secs. 416.919a through 416.919b.

[56 FR 36970, Aug. 1, 1991]



Sec. 416.994  How we will determine whether your disability continues or ends.

    (a) General. There is a statutory requirement that, if you are 
entitled to disability benefits, your continued entitlement to such 
benefits must be reviewed periodically. Our rules for deciding whether 
your disability continues are set forth in paragraph (b) of this 
section. Additional rules apply if you were found disabled under a State 
plan, as set forth in paragraph (c) of this section.
    (b) Disabled persons age 18 or over (adults). If you are entitled to 
disability benefits as a disabled person age 18 or over (adult) there 
are a number of factors we consider in deciding whether your disability 
continues. We must determine if there has been any medical improvement 
in your impairment(s) and, if so, whether this medical improvement is 
related to your ability to work. If your impairment(s) has not so 
medically improved, we must consider whether one or more of the 
exceptions to medical improvement applies. If medical improvement 
related to your ability to work has not occurred and no exception 
applies, your benefits will continue. Even where medical improvement 
related to your ability to work has occurred or an exception applies, in 
most cases, (see paragraph (b)(4) of this section for exceptions) we 
must also show that you are currently able to engage in substantial 
gainful activity before we can find that you are no longer disabled.
    (1) Terms and definitions. There are several terms and definitions 
which are important to know in order to understand how we review whether 
your disability continues.
    (i) Medical improvement. Medical improvement is any decrease in the 
medical severity of your impairment(s) which was present at the time of 
the most recent favorable medical decision that you were disabled or 
continued to be disabled. A determination that there has been a decrease 
in medical severity must be based on changes (improvement) in the 
symptoms, signs and/or laboratory findings associated with your 
impairment(s) (see Sec. 416.928).
    Example 1:  You were awarded disability benefits due to a herniated 
nucleus pulposus. At the time of our prior decision granting you 
benefits you had had a laminectomy. Postoperatively, a myelogram still 
shows evidence of a persistent deficit in your lumbar spine. You had 
pain in your back, and pain and a burning sensation in your right foot 
and leg. There were no muscle weakness or neurological changes and a 
modest decrease in motion in your back and leg. When we reviewed your 
claim your treating physician reported that he had seen you regularly 
every 2 to 3 months for the past 2 years. No further myelograms had been 
done, complaints of pain in the back and right leg continued especially 
on sitting or standing for more than a short period of time. Your doctor 
further reported a moderately decreased range of motion in your back and 
right leg, but again no muscle atrophy or neurological changes were 
reported. Medical improvement has not occurred because there has been no 
decrease in the severity of your back impairment as shown by changes in 
symptoms, signs or laboratory findings.
    Example 2:  You were awarded disability benefits due to rheumatoid 
arthritis. At the time, laboratory findings were positive for this 
condition. Your doctor reported persistent swelling and tenderness of 
your fingers and wrists and that you complained of joint pain. Current 
medical evidence shows that while laboratory tests are still positive 
for rheumatoid arthritis, your impairment has responded favorably to 
therapy so that for the last year your fingers and wrists have not been 
significantly swollen or painful. Medical improvement has occurred 
because there has been a decrease in the severity of

[[Page 783]]

your impairment as documented by the current symptoms and signs reported 
by your physician. Although your impairment is subject to temporary 
remissions and exacerbations, the improvement that has occurred has been 
sustained long enough to permit a finding of medical improvement. We 
would then determine if this medical improvement is related to your 
ability to work.
    (ii) Medical improvement not related to ability to do work. Medical 
improvement is not related to your ability to work if there has been a 
decrease in the severity of the impairment(s) as defined in paragraph 
(b)(1)(i) of this section, present at the time of the most recent 
favorable medical decision, but no increase in your functional capacity 
to do basic work activities as defined in paragraph (b)(1)(iv) of this 
section. If there has been any medical improvement in your 
impairment(s), but it is not related to your ability to do work and none 
of the exceptions applies, your benefits will be continued.
    Example:  You are 65 inches tall and weighed 246 pounds at the time 
your disability was established. You had venous insufficiency and 
persistent edema in your legs. At the time, your ability to do basic 
work activities was affected because you were able to sit for 6 hours, 
but were able to stand or walk only occasionally. At the time of our 
continuing disability review, you had undergone a vein stripping 
operation. You now weigh 220 pounds and have intermittent edema. You are 
still able to sit for 6 hours at a time and to stand or work only 
occasionally although you report less discomfort on walking. Medical 
improvement has occurred because there has been a decrease in the 
severity of the existing impairment as shown by your weight loss and the 
improvement in your edema. This medical improvement is not related to 
your ability to work, however, because your functional capacity to do 
basic work activities (i.e., the ability to sit, stand and walk) has not 
increased.
    (iii) Medical improvement that is related to ability to do work. 
Medical improvement is related to your ability to work if there has been 
a decrease in the severity, as defined in paragraph (b)(1)(i) of this 
section, of the impairment(s) present at the time of the most recent 
favorable medical decision and an increase in your functional capacity 
to do basic work activities as discussed in paragraph (b)(1)(iv) of this 
section. A determination that medical improvement related to your 
ability to do work has occurred does not, necessarily, mean that your 
disability will be found to have ended unless it is also shown that you 
are currently able to engage in substantial gainful activity as 
discussed in paragraph (b)(1)(v) of this section.
    Example 1:  You have a back impairment and had a laminectomy to 
relieve the nerve root impingement and weakness in your left leg. At the 
time of our prior decision, basic work activities were affected because 
you were able to stand less than 6 hours, and sit no more than \1/2\ 
hour at a time. You had a successful fusion operation on your back about 
1 year before our review of your entitlement. At the time of our review, 
the weakness in your leg has decreased. Your functional capacity to 
perform basic work activities now is unimpaired because you now have no 
limitation on your ability to sit, walk, or stand. Medical improvement 
has occurred because there has been a decrease in the severity of your 
impairment as demonstrated by the decreased weakness in your leg. This 
medical improvement is related to your ability to work because there has 
also been an increase in your functional capacity to perform basic work 
activities (or residual functional capacity) as shown by the absence of 
limitation on your ability to sit, walk, or stand. Whether or not your 
disability is found to have ended, however, will depend on our 
determination as to whether you can currently engage in substantial 
gainful activity.
    Example 2:  You were injured in an automobile accident receiving a 
compound fracture to your right femur and a fractured pelvis. When you 
applied for disability benefits 10 months after the accident your doctor 
reported that neither fracture had yet achieved solid union based on his 
clinical examination. X-rays supported this finding. Your doctor 
estimated that solid union and a subsequent return to full weight 
bearing would not occur for at least 3 more months. At the time of our 
review 6 months later, solid union had occurred and you had been 
returned to weight-bearing for over a month. Your doctor reported this 
and the fact that your prior fractures no longer placed any limitation 
on your ability to walk, stand, lift, etc., and, that in fact, you could 
return to fulltime work if you so desired.
    Medical improvement has occurred because there has been a decrease 
in the severity of your impairments as shown by X-ray and clinical 
evidence of solid union and your return to full weight-bearing. This 
medical improvement is related to your ability to work because you no 
longer meet the same listed impairment in appendix 1 of subpart P of 
part 404 of this chapter (see paragraph (b)(2)(iii)(A) of this section). 
In fact, you no longer have an impairment which is severe (see 
Sec. 416.921) and your disability will be found to have ended.

[[Page 784]]

    (iv) Functional capacity to do basic work activities. Under the law, 
disability is defined, in part, as the inability to do any substantial 
gainful activity by reason of any medically determinable physical or 
mental impairment(s). In determining whether you are disabled under the 
law, we must measure, therefore, how and to what extent your 
impairment(s) has affected your ability to do work. We do this by 
looking at how your functional capacity for doing basic work activities 
has been affected. Basic work activities means the abilities and 
aptitudes necessary to do most jobs. Included are exertional abilities 
such as walking, standing, pushing, pulling, reaching and carrying, and 
nonexertional abilities and aptitudes such as seeing, hearing, speaking, 
remembering, using judgment, dealing with changes and dealing with both 
supervisors and fellow workers. A person who has no impairment(s) would 
be able to do all basic work activities at normal levels; he or she 
would have an unlimited functional capacity to do basic work activities. 
Depending on its nature and severity, an impairment will result in some 
limitation to the functional capacity to do one or more of these basic 
work activities. Diabetes, for example, can result in circulatory 
problems which could limit the length of time a person could stand or 
walk and damage to his or her eyes as well, so that the person also had 
limited vision. What a person can still do despite an impairment, is 
called his or her residual functional capacity. How the residual 
functional capacity is assessed is discussed in more detail in 
Sec. 416.945. Unless an impairment is so severe that it is deemed to 
prevent you from doing substantial gainful activity (see Secs. 416.925 
and 416.926) it is this residual functional capacity that is used to 
determine whether you can still do your past work or, in conjunction 
with your age, education and work experience, any other work.
    (A) A decrease in the severity of an impairment as measured by 
changes (improvement) in symptoms, signs or laboratory findings can, if 
great enough, result in an increase in the functional capacity to do 
work activities. Vascular surgery (e.g., femoropopliteal bypass) may 
sometimes reduce the severity of the circulatory complications of 
diabetes so that better circulation results and the person can stand or 
walk for longer periods. When new evidence showing a change in symptoms, 
signs and laboratory findings establishes that both medical improvement 
has occurred and your functional capacity to perform basic work 
activities, or residual functional capacity, has increased, we say that 
medical improvement which is related to your ability to do work has 
occurred. A residual functional capacity assessment is also used to 
determine whether you can engage in substantial gainful activity and, 
thus, whether you continue to be disabled (see paragraph (b)(1)(vi) of 
this section).
    (B) Many impairment-related factors must be considered in assessing 
your functional capacity for basic work activities. Age is one key 
factor. Medical literature shows that there is a gradual decrease in 
organ function with age; that major losses and deficits become 
irreversible over time and that maximum exercise performance diminishes 
with age. Other changes related to sustained periods of inactivity and 
the aging process include muscle atrophy, degenerative joint changes, 
decrease in range of motion, and changes in the cardiac and respiratory 
systems which limit the exertional range.
    (C) Studies have also shown that the longer an individual is away 
from the workplace and is inactive, the more difficult it becomes to 
return to ongoing gainful employment. In addition, a gradual change 
occurs in most jobs so that after about 15 years, it is no longer 
realistic to expect that skills and abilities acquired in these jobs 
will continue to apply to the current workplace. Thus, if you are age 50 
or over and have been receiving disability benefits for a considerable 
period of time, we will consider this factor along with your age in 
assessing your residual functional capacity. This will ensure that the 
disadvantages resulting from inactivity and the aging process during a 
long period of disability will be considered. In some instances where 
available evidence does not resolve what you can or cannot do on a 
sustained basis, we will provide special work

[[Page 785]]

evaluations or other appropriate testing.
    (v) Ability to engage in substantial gainful activity. In most 
instances, we must show that you are able to engage in substantial 
gainful activity before your benefits are stopped. When doing this, we 
will consider all your current impairments not just that impairment(s) 
present at the time of the most recent favorable determination. If we 
cannot determine that you are still disabled based on medical 
consideration alone (as discussed in Secs. 416.925 and 416.926), we will 
use the new symptoms, signs and laboratory findings to make an objective 
assessment of your functional capacity to do basic work activities or 
residual functional capacity and we will consider your vocational 
factors. See Secs. 416.945 through 416.969.
    (vi) Evidence and basis for our decision. Our decisions under this 
section will be made on a neutral basis without any initial inference as 
to the presence or absence of disability being drawn from the fact that 
you have previously been determined to be disabled. We will consider all 
evidence you submit, as well as all evidence we obtain from your 
treating physician(s) and other medical or nonmedical sources. What 
constitutes ``evidence'' and our procedures for obtaining it are set out 
in Secs. 416.912 through 416.918. Our determination regarding whether 
your disability continues will be made on the basis of the weight of the 
evidence.
    (vii) Point of comparison. For purpose of determining whether 
medical improvement has occurred, we will compare the current medical 
severity of that impairment(s) which was present at the time of the most 
recent favorable medical decision that you were disabled or continued to 
be disabled to the medical severity of that impairment(s) at that time. 
If medical improvement has occurred, we will compare your current 
functional capacity to do basic work activities (i.e., your residual 
functional capacity) based on the previously existing impairments with 
your prior residual functional capacity in order to determine whether 
the medical improvement is related to your ability to do work. The most 
recent favorable medical decision is the latest decision involving a 
consideration of the medical evidence and the issue of whether you were 
disabled or continued to be disabled which became final.
    (2) Determining medical improvement and its relationship to your 
abilities to do work. Paragraphs (b)(1)(i) through (b)(1)(iii) of this 
section discuss what we mean by medical improvement, medical improvement 
not related to your ability to work, and medical improvement that is 
related to your ability to work. How we will arrive at the decision that 
medical improvement has occurred and its relationship to the ability to 
do work, is discussed below.
    (i) Medical improvement. Medical improvement is any decrease in the 
medical severity of impairment(s) present at the time of the most recent 
favorable medical decision that you were disabled or continued to be 
disabled and is determined by a comparison of prior and current medical 
evidence which must show that there have been changes (improvement) in 
the symptoms, signs or laboratory findings associated with that 
impairment(s).
    (ii) Determining if medical improvement is related to ability to 
work. If there is a decrease in medical severity as shown by the 
symptoms, signs and laboratory findings, we then must determine if it is 
related to your ability to do work. In paragraph (b)(1)(iv) of this 
section, we explain the relationship between medical severity and 
limitation on functional capacity to do basic work activities (or 
residual functional capacity) and how changes in medical severity can 
affect your residual functional capacity. In determining whether medical 
improvement that has occurred is related to your ability to do work, we 
will assess your residual functional capacity (in accordance with 
paragraph (b)(1)(iv) of this section) based on the current severity of 
the impairment(s) which was present at your last favorable medical 
decision.
    (iii) Your new residual functional capacity will then be compared to 
your residual functional capacity at the time of our most recent 
favorable medical decision. Unless an increase in the current residual 
functional capacity is based on actual changes in the signs, symptoms, 
or laboratory findings any

[[Page 786]]

medical improvement that has occurred will not be considered to be 
related to your ability to do work.
    (iv) Following are some additional factors and considerations which 
we will apply in making these determinations.
    (A) Previous impairment met or equaled listings. If our most recent 
favorable decision was based on the fact that your impairment(s) at the 
time met or equaled the severity contemplated by the Listing of 
Impairments in appendix 1 of subpart P of part 404 of this chapter, an 
assessment of your residual functional capacity would not have been 
made. If medical improvement has occurred and the severity of the prior 
impairment(s) no longer meets or equals the same listing section used to 
make our most recent favorable decision, we will find that the medical 
improvement was related to your ability to work. Appendix 1 of subpart P 
of part 404 of this chapter describes impairments which, if severe 
enough, affect a person's ability to work. If the appendix level 
severity is met or equaled the individual is deemed, in the absence of 
evidence to the contrary, to be unable to engage in gainful activity. If 
there has been medical improvement to the degree that the requirement of 
the listing section is no longer met or equaled, then the medical 
improvement is related to your ability to work. We must, of course, also 
establish that you can currently engage in substantial gainful activity 
before finding that your disability has ended.
    (B) Prior residual functional capacity assessment made. The residual 
functional capacity assessment used in making the most recent favorable 
medical decision will be compared to the residual functional capacity 
assessment based on current evidence in order to determine if your 
functional capacity for basic work activities has increased. There will 
be no attempt made to reassess the prior residual functional capacity.
    (C) Prior residual functional capacity assessment should have been 
made, but was not. If the most recent favorable medical decision should 
have contained an assessment of your residual functional capacity (i.e., 
your impairments did not meet or equal the level of severity 
contemplated by the Listing of Impairments in appendix 1 of subpart P of 
part 404 of this chapter) but does not, either because this assessment 
is missing from your file or because it was not done, we will 
reconstruct the residual functional capacity. This reconstructed 
residual functional capacity will accurately and objectively assess your 
functional capacity to do basic work activities. We will assign the 
maximum functional capacity consistent with a decision of allowance.
    Example:  You were previously found to be disabled on the basis that 
``while your impairment did not meet or equal a listing, it did prevent 
you from doing your past or any other work.'' The prior adjudicator did 
not, however, include a residual functional capacity assessment in the 
rationale of this decision and a review of the prior evidence does not 
show that such an assessment was ever made. If a decrease in medical 
severity, i.e., medical improvement, has occurred, the residual 
functional capacity based on the current level of severity of your 
impairment will have to be compared with your residual functional 
capacity based on its prior severity in order to determine if the 
medical improvement is related to your ability to do work. In order to 
make this comparison, we will review the prior evidence and make an 
objective assessment of your residual functional capacity at the time of 
our most recent favorable medical determination, based on the symptoms, 
signs and laboratory findings as they then existed.
    (D) Impairment subject to temporary remission. In some cases the 
evidence shows that an individual's impairments are subject to temporary 
remission. In assessing whether medical improvement has occurred in 
persons with this type of impairment, we will be careful to consider the 
longitudinal history of the impairment, including the occurrence of 
prior remission, and prospects for future worsenings. Improvement in 
such impairments that is only temporary will not warrant a finding of 
medical improvement.
    (E) Prior file cannot be located. If the prior file cannot be 
located, we will first determine whether you are able to now engage in 
substantial gainful activity based on all your current impairments. (In 
this way, we will be able to determine that your disability continues at 
the earliest point without addressing the often lengthy process of 
reconstructing prior evidence.) If you

[[Page 787]]

cannot engage in substantial gainful activity currently, your benefits 
will continue unless one of the second group of exceptions applies (see 
paragraph (b)(4) of this section). If you are able to engage in 
substantial gainful activity, we will determine whether an attempt 
should be made to reconstruct those portions of the missing file that 
were relevant to our most recent favorable medical decision (e.g., work 
history, medical evidence from treating sources and the results of 
consultative examinations). This determination will consider the 
potential availability of old records in light of their age, whether the 
source of the evidence is still in operation , and whether 
reconstruction efforts will yield a complete record of the basis for the 
most recent favorable medical decision. If relevant parts of the prior 
record are not reconstructed either because it is determined not to 
attempt reconstruction or because such efforts fail, medical improvement 
cannot be found. The documentation of your current impairments will 
provide a basis for any future reviews. If the missing file is later 
found, it may serve as a basis for reopening any decision under this 
section in accordance with Sec. 416.988.
    (3) First group of exceptions to medical improvement. The law 
provides for certain limited situations when your disability can be 
found to have ended even though medical improvement has not occurred, if 
you can engage in substantial gainful activity. These exceptions to 
medical improvement are intended to provide a way of finding that a 
person is no longer disabled in those limited situations where, even 
though there has been no decrease in severity of the impairment(s), 
evidence shows that the person should no longer be considered disabled 
or never should have been considered disabled. If one of these 
exceptions applies, we must also show that, taking all your current 
impairment(s) into account, not just those that existed at the time of 
our most recent favorable medical decision, you are now able to engage 
in substantial gainful activity before your disability can be found to 
have ended. As part of the review process, you will be asked about any 
medical or vocational therapy you received or are receiving. Your 
answers and the evidence gathered as a result as well as all other 
evidence, will serve as the basis for the finding that an exception 
applies.
    (i) Substantial evidence shows that you are the beneficiary of 
advances in medical or vocational therapy or technology (related to your 
ability to work). Advances in medical or vocational therapy or 
technology are improvements in treatment or rehabilitative methods which 
have increased your ability to do basic work activities. We will apply 
this exception when substantial evidence shows that you have been the 
beneficiary of services which reflect these advances and they have 
favorably affected the severity of your impairment or your ability to do 
basic work activities. This decision will be based on new medical 
evidence and a new residual functional capacity assessment. (See 
Sec. 416.945.) This exception does not apply if you are eligible to 
receive special Supplemental Security Income cash benefits as explained 
in Sec. 416.261. In many instances, an advanced medical therapy or 
technology will result in a decrease in severity as shown by symptoms, 
signs and laboratory findings which will meet the definition of medical 
improvement. This exception will, therefore, see very limited 
application.
    (ii) Substantial evidence shows that you have undergone vocational 
therapy (related to your ability to work). Vocational therapy (related 
to your ability to work) may include, but is not limited to, additional 
education, training, or work experience that improves your ability to 
meet the vocational requirements of more jobs. This decision will be 
based on substantial evidence which includes new medical evidence and a 
new residual functional capacity assessment. (See Sec. 416.945.) This 
exception does not apply if you are eligible to receive special 
Supplemental Security Income cash benefits as explained in Sec. 416.261. 
If, at the time of our review, you have not completed vocational therapy 
which could affect the continuance of your disability, we will review 
your claim upon completion of the therapy.
    Example 1:  You were found to be disabled because the limitations 
imposed on you by your impairment allowed you to only do work that was 
at a sedentary level of exertion. Your prior work experience was work

[[Page 788]]

that required a medium level of exertion. Your age and education at the 
time would not have qualified you for work that was below this medium 
level of exertion. You enrolled in and completed a specialized training 
course which qualifies you for a job in data processing as a computer 
programmer in the period since you were awarded benefits. On review of 
your claim, current evidence shows that there is no medical improvement 
and that you can still do only sedentary work. As the work of a computer 
programmer is sedentary in nature, you are now able to engage in 
substantial gainful activity when your new skills are considered.
    Example 2:  You were previously entitled to benefits because the 
medical evidence and assessment of your residual functional capacity 
showed you could only do light work. Your prior work was considered to 
be heavy in nature and your age, education and the nature of your prior 
work qualified you for work which was no less than medium in exertion. 
The current evidence and residual functional capacity show there has 
been no medical improvement and that you can still do only light work. 
Since you were originally entitled to benefits, your vocational 
rehabilitation agency enrolled you in and you successfully completed a 
trade school course so that you are now qualified to do small appliance 
repair. This work is light in nature, so when your new skills are 
considered, you are now able to engage in substantial gainful activity 
even though there has been no change in your residual functional 
capacity.
    (iii) Substantial evidence shows that based on new or improved 
diagnostic or evaluative techniques your impairment(s) is not as 
disabling as it was considered to be at the time of the most recent 
favorable decision. Changing methodologies and advances in medical and 
other diagnostic or evaluative techniques have given, and will continue 
to give, rise to improved methods for measuring and documenting the 
effect of various impairments on the ability to do work. Where, by such 
new or improved methods, substantial evidence shows that your 
impairment(s) is not as severe as was determined at the time of our most 
recent favorable medical decision, such evidence may serve as a basis 
for finding that you are no longer disabled, if you can currently engage 
in substantial gainful activity. In order to be used under this 
exception, however, the new or improved techniques must have become 
generally available after the date of our most recent favorable medical 
decision.
    (A) How we will determine which methods are new or improved 
techniques and when they become generally available. New or improved 
diagnostic techniques or evaluations will come to our attention by 
several methods. In reviewing cases, we often become aware of new 
techniques when their results are presented as evidence. Such techniques 
and evaluations are also discussed and acknowledged in medical 
literature by medical professional groups and other governmental 
entities. Through these sources, we develop listings of new techniques 
and when they become generally available. For example, we will consult 
the Health Care Financing Administration for its experience regarding 
when a technique is recognized for payment under Medicare and when they 
began paying for the technique.
    (B) How you will know which methods are new or improved techniques 
and when they become generally available. We will let you know which 
methods we consider to be new or improved techniques and when they 
become available through two vehicles.
    (1) Some of the future changes in the Listing of Impairments in 
appendix 1 of subpart P of part 404 of this chapter will be based on new 
or improved diagnostic or evaluation techniques. Such listings changes 
will clearly state this fact as they are published as Notices of 
Proposed Rulemaking and the new or improved techniques will be 
considered generally available as of the date of the final publication 
of that particular listing in the Federal Register.
    (2) A cumulative list since 1970 of new or approved diagnostic 
techniques or evaluations, how they changed the evaluation of the 
applicable impairment and the month and year they became generally 
available, will be published in the Notices section of the Federal 
Register. Included will be any changes in the Listing of Impairments 
published in the Code of Federal Regulations since 1970 which are 
reflective of new or improved techniques. No cases will be processed 
under this exception until this cumulative listing is so published. 
Subsequent changes to the list will be published periodically. The 
period will be determined by the volume of changes needed.

[[Page 789]]

    Example:  The electrocardiographic exercise test has replaced the 
Master's 2-step test as a measurement of heart function since the time 
of your last favorable medical decision. Current evidence could show 
that your condition, which was previously evaluated based on the 
Master's 2-step test, is not now as disabling as was previously thought. 
If, taking all your current impairments into account, you are now able 
to engage in substantial gainful activity, this exception would be used 
to find that you are no longer disabled even if medical improvement has 
not occurred.
    (iv) Substantial evidence demonstrates that any prior disability 
decision was in error. We will apply the exception to medical 
improvement based on error if substantial evidence (which may be 
evidence on the record at the time any prior determination of the 
entitlement to benefits based on disability was made, or newly obtained 
evidence which relates to that determination) demonstrates that a prior 
determination was in error. A prior determination will be found in error 
only if:
    (A) Substantial evidence shows on its face that the decision in 
question should not have been made (e.g., the evidence in your file such 
as pulmonary function study values was misread or an adjudicative 
standard such as a listing in appendix 1 of subpart P of part 404 of 
this chapter or a medical/vocational rule in appendix 2 of subpart P of 
part 404 of this chapter was misapplied).
    Example 1:  You were granted benefits when it was determined that 
your epilepsy met Listing 11.02. This listing calls for a finding of 
major motor seizures more frequently than once a month as documented by 
electroencephalogram evidence and by a detailed description of a typical 
seizure pattern. A history of either diurnal episodes or nocturnal 
episodes with residuals interfering with daily activities is also 
required. On review, it is found that a history of the frequency of your 
seizures showed that they occurred only once or twice a year. The prior 
decision would be found to be in error, and whether you were still 
considered to be disabled would be based on whether you could currently 
engage in substantial gainful activity.
    Example 2: Your prior award of benefits was based on vocational rule 
201.12 in appendix 2 of subpart P of part 404 of this chapter. This rule 
applies to a person age 50-54 who has at least a high school education, 
whose previous work was entirely at a semiskilled level, and who can do 
only sedentary work. On review, it is found that at the time of the 
prior determination you were actually only age 46 and vocational rule 
201.21 should have been used. This rule would have called for a denial 
of your claim and the prior decision is found to have been in error. 
Continuation of your disability would depend on a finding of your 
current ability to engage in substantial gainful activity.
    (B) At the time of the prior evaluation, required and material 
evidence of the severity of your impairment(s) was missing. That 
evidence becomes available upon review, and substantial evidence 
demonstrates that had such evidence been present at the time of the 
prior determination, disability would not have been found.
    Example:  You were found disabled on the basis of chronic 
obstructive pulmonary disease. The severity of your impairment was 
documented primarily by pulmonary function testing results. The evidence 
showed that you could do only light work. Spirometric tracings of this 
testing, although required, were not obtained, however. On review, the 
original report is resubmitted by the consultative examining physician 
along with the corresponding spirometric tracings. A review of the 
tracings shows that the test was invalid. Current pulmonary function 
testing supported by spirometric tracings reveals that your impairment 
does not limit your ability to perform basic work activities in any way. 
Error is found based on the fact that required, material evidence which 
was originally missing now becomes available and shows that if it had 
been available at the time of the prior determination, disability would 
not have been found.
    (C) Substantial evidence which is new evidence which relates to the 
prior determination (of allowance or continuance) refutes the 
conclusions that were based upon the prior evidence (e.g., a tumor 
thought to be malignant was later shown to have actually been benign). 
Substantial evidence must show that had the new evidence, (which relates 
to the prior determination) been considered at the time of the prior 
decision, the claim would not have been allowed or continued. A 
substitution of current judgment for that used in the prior favorable 
decision will not be the basis for applying this exception.
    Example:  You were previously found entitled to benefits on the 
basis of diabetes mellitus which the prior adjudicator believed was 
equivalent to the level of severity contemplated in the Listing of 
Impairments.

[[Page 790]]

The prior record shows that you had ``brittle'' diabetes for which you 
were taking insulin. Your urine was 3+ for sugar, and you alleged 
occasional hypoglycemic attacks caused by exertion. On review, symptoms, 
signs and laboratory findings are unchanged. The current adjudicator 
feels, however, that your impairment clearly does not equal the severity 
contemplated by the listings. Error cannot be found because it would 
represent a substitution of current judgment for that of the prior 
adjudicator that your impairment equaled a listing.
    (D) The exception for error will not be applied retroactively under 
the conditions set out above unless the conditions for reopening the 
prior decision (see Secs. 416.1488 through 416.1489) are met.
    (v) You are currently engaging in substantial gainful activity. If 
you are currently engaging in substantial gainful activity before we 
determine whether you are no longer disabled because of your work 
activity, we will consider whether you are entitled to a trial work 
period as set out in Sec. 416.992. We will find that your disability has 
ended in the month in which you demonstrated your ability to engage in 
substantial gainful activity (following completion of a trial work 
period, where it applies). This exception does not apply if you are 
eligible to receive special Supplemental Security Income cash benefits 
as explained in Sec. 416.261. This exception also does not apply in 
determining whether you continue to have a disabling impairment(s) 
(Sec. 416.911) for purposes of deciding your eligibility for a 
reentitlement period (Sec. 416.992a).
    (4) Second group of exceptions to medical improvement. In addition 
to the first group of exceptions to medical improvement, the following 
exceptions may result in a determination that you are no longer 
disabled. In these situations the decision will be made without a 
determination that you have medically improved or can engage in 
substantial gainful activity.
    (i) A prior determination or decision was fraudulently obtained. If 
we find that any prior favorable determination or decision was obtained 
by fraud, we may find that you are not disabled. In addition, we may 
reopen your claim under the rules in Sec. 416.1488. In determining 
whether a prior favorable determination or decision was fraudulently 
obtained, we will take into account any physical, mental, educational, 
or linguistic limitations (including any lack of facility with the 
English language) which you may have had at the time.
    (ii) You do not cooperate with us. If there is a question about 
whether you continue to be disabled and we ask you to give us medical or 
other evidence or to go for a physical or mental examination by a 
certain date, we will find that your disability has ended if you fail, 
without good cause, to do what we ask. Section 416.1411 explains the 
factors we consider and how we will determine generally whether you have 
good cause for failure to cooperate. In addition, Sec. 416.918 discusses 
how we determine whether you have good cause for failing to attend a 
consultative examination. The month in which your disability ends will 
be the first month in which you failed to do what we asked.
    (iii) We are unable to find you. If there is a question about 
whether you continue to be disabled and we are unable to find you to 
resolve the question, we will suspend your payments. The month your 
payments are suspended will be the first month in which the question 
arose and we could not find you.
    (iv) You fail to follow prescribed treatment which would be expected 
to restore your ability to engage in substantial gainful activity. If 
treatment has been prescribed for you which would be expected to restore 
your ability to work, you must follow that treatment in order to be paid 
benefits. If you are not following that treatment and you do not have 
good cause for failing to follow that treatment, we will find that your 
disability has ended (see Sec. 416.930(c)). The month your disability 
ends will be the first month in which you failed to follow the 
prescribed treatment.
    (5) Evaluation steps. To assure that disability reviews are carried 
out in a uniform manner, that a decision of continuing disability can be 
made in the most expeditious and administratively efficent way, and that 
any decisions to stop disability benefits are made objectively, 
neutrally and are fully documented, we will follow specific steps in 
reviewing the question of

[[Page 791]]

whether your disability continues. Our review may cease and benefits may 
be continued at any point if we determine there is sufficient evidence 
to find that you are still unable to engage in substantial gainful 
activity. The steps are:
    (i) Are you engaging in substantial gainful activity? If you are 
(and any applicable trial work period has been completed), we will find 
disability to have ended (see paragraph (b)(3)(v) of this section).
    (ii) If you are not, do you have an impairment or combination of 
impairments which meets or equals the severity of an impairment listed 
in appendix 1 of subpart P of part 404 of this chapter? If you do, your 
disability will be found to continue.
    (iii) If you do not, has there been medical improvement as defined 
in paragraph (b)(1)(i) of this section? If there has been medical 
improvement as shown by a decrease in medical severity, see step (iv). 
If there has been no decrease in medical severity, there has been no 
medical improvement. (See step (v).)
    (iv) If there has been medical improvement, we must determine 
whether it is related to your ability to do work in accordance with 
paragraphs (b)(1)(i) through (b)(1)(iv) of this section; i.e., whether 
or not there has been an increase in the residual functional capacity 
based on the impairment(s) that was present at the time of the most 
recent favorable medical determination. If medical improvement is not 
related to your ability to work, see step (v). If medical improvement is 
related to your ability to do work, see step (vi).
    (v) If we found at step (iii) that there has been no medical 
improvement or if we found at step (iv) that the medical improvement is 
not related to your ability to work, we consider whether any of the 
exceptions in paragraphs (b)(3) and (b)(4) of this section apply. If 
none of them apply, your disability will be found to continue. If one of 
the first group of exceptions to medical improvement applies, see step 
(vi). If an exception from the second group of exceptions to medical 
improvement applies, your disability will be found to have ended. The 
second group of exceptions to medical improvement may be considered at 
any point in this process.
    (vi) If medical improvement is shown to be related to your ability 
to do work or if one of the first group of exceptions to medical 
improvement applies, we will determine whether all your current 
impairments (in combination) are severe (see Sec. 416.921). This 
determination will consider all your current impairments and the impact 
of the combination of these impairments on your ability to function. If 
the residual functional capacity assessment in step (iv) above shows 
significant limitaton of your ability to do basic work activities, see 
step (vii). When the evidence shows that all your current impairments in 
combination do not significantly limit your physical or mental abilities 
to do basic work activities, these impairments will not be considered 
severe in nature. If so, you will no longer be considered to be 
disabled.
    (vii) If your impairment(s) is severe, we will assess your current 
ability to engage in substantial gainful activity in accordance with 
Sec. 416.961. That is we will assess your residual functional capacity 
based on all your current impairments and consider whether you can still 
do work you have done in the past. If you can do such work, disability 
will be found to have ended.
    (viii) If you are not able to do work you have done in the past, we 
will consider one final step. Given the residual functional capacity 
assessment and considering your age, education and past work experience, 
can you do other work? If you can, disability will be found to have 
ended. If you cannot, disability will be found to continue.
    (6) The month in which we will find you are no longer disabled. If 
the evidence shows that you are no longer disabled, we will find that 
your disability ended in the following month--
    (i) For purposes of Sec. 416.1331 (under which benefits can be paid 
for the month in which disability ends and the two following months) the 
earliest of the following months--
    (A) The month the evidence shows that you are no longer disabled 
under the rules set out in this section, and you were disabled only for 
a specified period of time in the past;

[[Page 792]]

    (B) The month the evidence shows that you are no longer disabled 
under the rules set out in this section, but not earlier than the month 
in which we mail you a notice saying that the information we have shows 
that you are not disabled;
    (C) The month in which you return to full-time work, with no 
significant medical restrictions and acknowledge that medical 
improvement has occurred, and we expected your impairment(s) to improve 
(see Sec. 416.991);
    (D) The first month following completion of your trial work period 
for which it is determined that you have demonstrated the ability to do 
substantial gainful activity;
    (E) The first month in which you fail without good cause to follow 
prescribed treatment, when the rule set out in paragraph (b)(4)(iv) of 
this section applies;
    (F) The first month in which you were told by your physician that 
you could return to work provided there is no substantial conflict 
between your physkcian's and your statements regarding your awareness of 
your capacity for work and the earlier date is supported by substantial 
evidence; or
    (G) The first month in which you failed without good cause to do 
what we asked, when the rule set out in paragraph (b)(4)(ii) of this 
section applies.
    (ii) For all other purposes, the month preceding the termination 
month. The termination month, as that term is used in this paragraph, is 
the first month after the 15-month reentitlement period (described in 
Sec. 416.992a, in which you engage in or are determined able to engage 
in substantial gainful activity or, if earlier, the first month after a 
trial work period in which your impairment is determined, based on 
medical or other evidence, to no longer exist or not be a disabling 
impairment as described in Sec. 416.911.
    (7) Before we stop your benefits. If we find you are no longer 
disabled, before we stop your benefits, we will give you a chance to 
explain why we should not do so. Subparts M and N of this part describe 
your rights and the procedures we will follow.
    (c) Persons who were found disabled under a State plan. If you 
became entitled to benefits because you were found to be disabled under 
a State plan, we will first evaluate your impairment(s) under the rules 
explained in paragraph (b) of this section. We will apply the same steps 
as described in paragraph (b) of this section to the last decision 
granting or affirming entitlement to benefits under the State plan. If 
we are not able to find that your disability continues on the basis of 
these rules, we will then evaluate your impairment(s) under the 
appropriate State plan. If we are not able to find that your disability 
continues under these State plan criteria, we will find that your 
disability ends. Disability will be found to end the month the evidence 
shows that you are no longer disabled under the criteria in paragraph 
(b) of this section (or appropriate State plan criteria), subject to the 
rules set out in paragraph (b)(6) of this section.

[50 FR 50137, Dec. 6, 1985; 51 FR 7063, Feb. 28, 1986; 51 FR 16015, Apr. 
30, 1986, as amended at 52 FR 44971, Nov. 24, 1987; 56 FR 5562, Feb. 11, 
1991; 59 FR 1636, Jan. 12, 1994]



Sec. 416.994a  How we will determine whether your disability continues or ends, and whether you are and have been receiving treatment that is medically 
          necessary and available, disabled children.

    (a) Evaluation of continuing disability, in general. There is a 
statutory requirement that, if you are eligible for disability benefits 
as a disabled child, your continued eligibility for such benefits must 
be reviewed periodically. There are a number of factors we consider when 
we decide whether your disability continues.
    (1) We will first consider whether there has been medical 
improvement in your impairment(s). We define ``medical improvement'' in 
paragraph (c) of this section. If there has been no medical improvement, 
we will find you are still disabled unless one of the exceptions in 
paragraphs (e) or (f) of this section applies. If there has been medical 
improvement, we will consider whether the impairments(s) you had at the 
time of our most recent favorable determination or decision now meets or 
medically or functionally equals the severity of the listing it met or 
equalled at that time. If so, we will find you are still disabled, 
unless one of

[[Page 793]]

the exceptions in paragraphs (e) or (f) of this section applies. If not, 
we will consider whether your current impairment(s) are disabling under 
the rules in Sec. 416.924. These steps are described in more detail in 
paragraph (b) of this section. Even where medical improvement or an 
exception applies, in most cases, we will find that your disability has 
ended only if we also find that you are not currently disabled.
    (2) Our determinations and decisions under this section will be made 
on a neutral basis, without any initial inference as to the presence or 
absence of disability being drawn from the fact that you have been 
previously found disabled. We will consider all evidence you submit, as 
well as all evidence we obtain from your treating physician(s) and other 
medical and nonmedical sources. What constitutes ``evidence'' and our 
procedures for obtaining it are set out in Secs. 416.912 through 
416.918. Our determination regarding whether your disability continues 
will be made on the basis of the weight of the evidence.
    (b) Sequence of evaluation. To ensure that disability reviews are 
carried out in a uniform manner, that decisions of continuing disability 
can be made in the most expeditious and administratively efficient way, 
and that any decisions to stop disability benefits are made objectively, 
neutrally, and are fully documented, we follow specific steps in 
determining whether your disability continues. However, we may skip 
steps in the sequence if it is clear this would lead to a more prompt 
finding that your disability continues. For example, we might not 
consider the issue of medical improvement if it is obvious on the face 
of the evidence that a current impairment meets the severity of a listed 
impairment. If we can make a favorable determination or decision at any 
point in the sequence, we do not review further. The steps are:
    (1) Has there been medical improvement in your condition(s)? We will 
determine whether there has been medical improvement in the 
impairment(s) you had at the time of our most recent favorable 
determination or decision. (The term medical improvement is defined in 
paragraph (c) of this section.) If there has been no medical 
improvement, we will find that your disability continues, unless one of 
the exceptions to medical improvement described in paragraph (e) or (f) 
of this section applies.
    (i) If one of the first group of exceptions to medical improvement 
applies, we will proceed to step 3.
    (ii) If one of the second group of exceptions to medical improvement 
applies, we may find that your disability has ended.
    (2) Does your impairment(s) still meet or equal the severity of the 
listed impairment that it met or equaled before? If there has been 
medical improvement, we will consider whether the impairment(s) that we 
considered at the time of our most recent favorable determination or 
decision still meets or equals the severity of the listed impairment it 
met or equaled at that time. In making this decision, we will consider 
the current severity of the impairment(s) present and documented at the 
time of our most recent favorable determination or decision, and the 
same listing section used to make that determination or decision as it 
was written at that time, even if it has since been revised or removed 
from the Listing of Impairments. If that impairment(s) does not still 
meet or equal the severity of that listed impairment, we will proceed to 
the next step. If that impairment(s) still meets or equals the severity 
of that listed impairment as it was written at that time, we will find 
that you are still disabled, unless one of the exceptions to medical 
improvement described in paragraphs (e) or (f) of this section applies.
    (i) If one of the first group of exceptions to medical improvement 
applies, we will proceed to step 3.
    (ii) If one of the second group of exceptions to medical improvement 
applies, we may find that your disability has ended.
    (3) Are you currently disabled? If there has been medical 
improvement in the impairment(s) that we considered at the time of our 
most recent favorable determination or decision, and if that 
impairment(s) no longer meets or equals the severity of the listed 
impairment that it met or equaled at that time, we will consider whether 
you are disabled under the rules in Secs. 416.924(c)

[[Page 794]]

and (d). In determining whether you are currently disabled, we will 
consider all impairments you now have, including any you did not have at 
the time of our most recent favorable determination or decision, or that 
we did not consider at that time. The steps in determining current 
disability are summarized as follows:
    (i) Do you have a severe impairment or combination of impairment? If 
there has been medical improvement in your impairment(s), or if one of 
the first group of exceptions applies, we will determine whether your 
current impairment(s) is severe, as defined in Sec. 416.924(c). If your 
impairment(s) is not severe, we will find that your disability has 
ended. If your impairment(s) is severe, we will then consider whether it 
meets or medically equals the severity of a listed impairment.
    (ii) Does your impairment(s) meet or medically equal the severity of 
any impairment listed in appendix 1 of subpart P of part 404 of this 
chapter? If your current impairment(s) meets or medically equals the 
severity of any listed impairment, as described in Secs. 416.925 and 
416.926, we will find that your disability continues. If not, we will 
consider whether it functionally equals the severity of a listed 
impairment.
    (iii) Does your impairment(s) functionally equal the severity of any 
listed impairment? If your current impairment(s) functionally equals the 
severity of any listed impairment, as described in Sec. 416.926a, we 
will find that your disability continues. If not, we will find that your 
disability has ended.
    (c) What we mean by medical improvement. Medical improvement is any 
decrease in the medical severity of your impairment(s) which was present 
at the time of the most recent favorable decision that you were disabled 
or continued to be disabled. Although the decrease in severity may be of 
any quantity or degree, we will disregard minor changes in your signs, 
symptoms, and laboratory findings that obviously do not represent 
medical improvement and could not result in a finding that your 
disability has ended. A determination that there has been a decrease in 
medical severity must be based on changes (improvement) in the symptoms, 
signs, or laboratory findings associated with your impairment(s).
    (1) The most recent favorable decision is the latest final 
determination or decision involving a consideration of the medical 
evidence and whether you were disabled or continued to be disabled.
    (2) The terms symptoms, signs, and laboratory findings are defined 
in Sec. 416.928. For children, our definitions of the terms symptoms, 
signs, and laboratory findings may include any abnormalities of physical 
and mental functioning that we used in making our most recent favorable 
decision.
    (3) Some impairments are subject to temporary remissions, which can 
give the appearance of medical improvement when in fact there has been 
none. If you have the kind of impairment that is subject to temporary 
remissions, we will be careful to consider the longitudinal history of 
the impairment, including the occurrence of prior remissions and 
prospects for future worsenings, when we decide whether there has been 
medical improvement. Improvements that are only temporary will not 
warrant a finding of medical improvement.
    (d) Prior file cannot be located. If we cannot locate your prior 
file, we will first determine whether you are currently disabled under 
the sequence set forth in Sec. 416.924. (In this way, we will determine 
that your benefits continue at the earliest time without reconstructing 
prior evidence.) If so, your benefits will continue unless one of the 
second group of exceptions applies (see paragraph (f) of this section). 
If not, we will determine whether an attempt should be made to 
reconstruct those portions of the missing file that were relevant to our 
most recent favorable determination or decision (e.g., school records, 
medical evidence from treating sources, and the results of consultative 
examination). This determination will consider the potential 
availability of old records in light of their age, whether the source of 
the evidence is still in operation, and whether reconstruction efforts 
will yield a complete record of the basis for the most recent favorable 
decision. If relevant parts of the prior record are not reconstructed, 
either because we decide not

[[Page 795]]

to attempt reconstruction or because our efforts failed, we will not 
find that you have medically improved. The documentation of your current 
impairment(s) will provide a basis for any future reviews. If the 
missing file is later found, it may serve as a basis for reopening any 
determination or decision under this section, in accordance with 
Sec. 416.1488.
    (e) First group of exceptions to medical improvement. The law 
provides certain limited situations when your disability can be found to 
have ended even though medical improvement has not occurred, if your 
impairment(s) no longer results in marked and severe functional 
limitations. These exceptions to medical improvement are intended to 
provide a way of finding that a person is no longer disabled in those 
situations where, even though there has been no decrease in severity of 
the impairment(s), evidence shows that the person should no longer be 
considered disabled or never should have been considered disabled. If 
one of these exceptions applies, we must also show that your 
impairment(s) does not now result in marked and severe functional 
limitations, before we can find you are no longer disabled, taking all 
your current impairments into account, not just those that existed at 
the time of our most recent favorable determination or decision. The 
evidence we gather will serve as the basis for the finding that an 
exception applies.
    (1) Substantial evidence shows that, based on new or improved 
diagnostic techniques or evaluations, your impairment(s) is not as 
disabling as it was considered to be at the time of the most recent 
favorable decision. Changing methodologies and advances in medical and 
other diagnostic techniques or evaluations have given rise to, and will 
continue to give rise to, improved methods for determining the causes of 
(i.e., diagnosing) and measuring and documenting the effects of various 
impairment on children and their functioning. Where, by such new or 
improved methods, substantial evidence shows that your impairment(s) is 
not as severe as was determined at the time of our most recent favorable 
decision, such evidence may serve as a basis for a finding that you are 
no longer disabled, provided that you do not currently have an 
impairment(s) that meets or equals the severity of any listed 
impairment, and therefore results in marked and severe functional 
limitations.
    (2) Substantial evidence demonstrates that any prior disability 
decision was in error. We will apply the exception to medical 
improvement based on error if substantial evidence (which may be 
evidence on the record at the time any prior determination or decision 
of the entitlement to benefits based on disability was made, or newly 
obtained evidence which relates to that determination or decision) 
demonstrates that a prior determination or decision (of allowance or 
continuance) was in error. A prior determination or decision will be 
found in error only if:
    (i) Substantial evidence shows on its face that the determination or 
decision in question should not have been made (e.g., the evidence in 
your file, such as pulmonary function study values, was misread, or an 
adjudicative standard, such as a listing in appendix 1 of subpart P of 
part 404 of this chapter, was misapplied).
    (ii) At the time of the prior evaluation, required and material 
evidence of the severity of your impairment(s) was missing. That 
evidence becomes available upon review, and substantial evidence 
demonstrates that, had such evidence been present at the time of the 
prior determination or decision, disability would not have been found.
    (iii) New substantial evidence that relates to the prior 
determination or decision refutes the conclusions that were based upon 
the prior evidence at the time of that determination or decision (e.g., 
a tumor thought to be malignant was later shown to have actually been 
benign). Substantial evidence must show that, had the new evidence 
(which relates to the prior determination or decision) been considered 
at the time of the prior determination or decision, the claim would not 
have been allowed or continued. A substitution of current judgment for 
that used in the prior favorable determination or decision will not be 
the basis for applying this exception.

[[Page 796]]

    (iv) The exception for error will not be applied retroactively under 
the conditions set out above unless the conditions for reopening the 
prior decision (see Secs. 416.1488 and 416.1489) are met.
    (f) Second group of exceptions to medical improvement. In addition 
to the first group of exceptions to medical improvement, the following 
exceptions may result in a determination or decision that you are no 
longer disabled. In these situations, the determination or decision will 
be made without a finding that you have demonstrated medical improvement 
or that you are currently not disabled under the rules in Sec. 416.924. 
There is no set point in the continuing disability review sequence 
described in paragraph (b) of this section at which we must consider 
these exceptions; exceptions in the second group may be considered at 
any point in the process.
    (1) A prior determination or decision was fraudulently obtained. If 
we find that any prior favorable determination or decision was obtained 
by fraud, we may find that you are not disabled. In addition, we may 
reopen your claim under the rules in Sec. 416.1488. In determining 
whether a prior favorable determination or decision was fraudulently 
obtained, we will take into account any physical, mental, educational, 
or linguistic limitations (including any lack of facility with the 
English language) which you may have had at the time.
    (2) You do not cooperate with us. If there is a question about 
whether you continue to be disabled and we ask you to give us medical or 
other evidence or to go for a physical or mental examination by a 
certain date, we will find that your disability has ended if you fail, 
without good cause, to do what we ask. Section 416.1411 explains the 
factors we consider and how we will determine generally whether you have 
good cause for failure to cooperate. In addition, Sec. 416.918 discusses 
how we determine whether you have good cause for failing to attend a 
consultative examination. The month in which your disability ends will 
be the first month in which you failed to do what we asked.
    (3) We are unable to find you. If there is a question about whether 
you continue to be disabled and we are unable to find you to resolve the 
question, we will suspend your payments. The month your payments are 
suspended will be the first month in which the question arose and we 
could not find you.
    (4) You fail to follow prescribed treatment which would be expected 
to improve your impairment(s) so that it no longer results in marked and 
severe functional limitations. If treatment has been prescribed for you 
which would be expected to improve your impairment(s) so that it no 
longer results in marked and severe functional limitations, you must 
follow that treatment in order to be paid benefits.
    (g) The month in which we will find you are no longer disabled. If 
the evidence shows that you are no longer disabled, we will find that 
your disability ended in the following month--
    (1) The month the evidence shows that you are no longer disabled 
under the rules set out in this section, and you were disabled only for 
a specified period of time in the past;
    (2) The month the evidence shows that you are no longer disabled 
under the rules set out in this section, but not earlier than the month 
in which we mail you a notice saying that the information we have shows 
that you are not disabled;
    (3) The month in which you return to, or begin, full-time work with 
no significant medical restrictions, and acknowledge that medical 
improvement has occurred, and we expected your impairment(s) to improve 
(see Sec. 416.991);
    (4) The first month in which you fail without good cause to follow 
prescribed treatment, when the rule set out in paragraph (g)(4) of this 
section applies;
    (5) The first month in which you were told by your physician that 
you could return to normal activities, provided there is no substantial 
conflict between your physician's and your statements regarding your 
awareness of your capacity, and the earlier date is supported by 
substantial evidence; or
    (6) The first month in which you failed without good cause to do 
what we asked, when the rule set out in paragraph (g)(2) of this section 
applies.
    (h) Before we stop your benefits. If we find you are no longer 
disabled, before we stop your benefits, we will give you

[[Page 797]]

a chance to explain why we should not do so. Subparts M and N of this 
part describe your rights and the procedures we will follow.
    (i) Requirement for treatment that is medically necessary and 
available. If you have a representative payee, the representative payee 
must, at the time of the continuing disability review, present evidence 
demonstrating that you are and have been receiving treatment, to the 
extent considered medically necessary and available, for the 
condition(s) that was the basis for providing you with SSI benefits, 
unless we determine that requiring your representative payee to provide 
such evidence would be inappropriate or unnecessary considering the 
nature of your impairment(s). If your representative payee refuses 
without good cause to comply with this requirement, and if we decide 
that it is in your best interests, we may pay your benefits to another 
representative payee or to you directly.
    (1) What we mean by treatment that is medically necessary. Treatment 
that is medically necessary means treatment that is expected to improve 
or restore your functioning and that was prescribed by a treating 
source, as defined in Sec. 416.902. If you do not have a treating 
source, we will decide whether there is treatment that is medically 
necessary that could have been prescribed by a treating source. The 
treatment may include (but is not limited to)--
    (i) Medical management;
    (ii) Psychiatric, psychological, or psychosocial counseling;
    (iii) Physical therapy; and
    (iv) Home therapy, such as administering oxygen or giving 
injections.
    (2) How we will consider whether medically necessary treatment is 
available. When we decide whether medically necessary treatment is 
available, we will consider such things as (but not limited)--
    (i) The location of an institution or facility or place where 
treatment, services, or resources could be provided to you in 
relationship to where you reside;
    (ii) The availability and cost of transportation for you and your 
payee to the place of treatment;
    (iii) Your general health, including your ability to travel for the 
treatment;
    (iv) The capacity of an institution or facility to accept you for 
appropriate treatment;
    (v) The cost of any necessary medications or treatments that are not 
paid for by Medicaid or another insurer or source; and
    (vi) The availability of local community resources (e.g., clinics, 
charitable organizations, public assistance agencies) that would provide 
free treatment or funds to cover treatment.
    (3) When we will not require evidence of treatment that is medically 
necessary and available. We will not require your representative payee 
to present evidence that you are and have been receiving treatment if we 
find that the condition(s) that was the basis for providing you benefits 
is not amenable to treatment.
    (4) Removal of a payee who does not provide evidence that a child is 
and has been receiving treatment that is medically necessary and 
available. If your representative payee refuses without good cause to 
provide evidence that you are and have been receiving treatment that is 
medically necessary and available, we may, if it is in your best 
interests, suspend payment of benefits to the representative payee, and 
pay benefits to another payee or to you. When we decide whether your 
representative payee had good cause, we will consider factors such as 
the acceptable reasons for failure to follow prescribed treatment in 
Sec. 416.930(c) and other factors similar to those describing good cause 
for missing deadlines in Sec. 416.1411.
    (5) If you do not have a representative payee. If you do not have a 
representative payee and we make your payments directly to you, the 
provisions of this paragraph do not apply to you. However, we may still 
decide that you are failing to follow prescribed treatment under the 
provisions of Sec. 416.930, if the requirements of that section are met.

[56 FR 5562, Feb. 11, 1991; 56 FR 13266, 13365, Apr. 1, 1991, as amended 
at 58 FR 47586, Sept. 9, 1993; 59 FR 1637, Jan. 12, 1994; 62 FR 6430, 
Feb. 11, 1997; 62 FR 13538, 13733, Mar. 21, 1997]

    Effective Date Note 1:  At 62 FR 6430, Feb. 11, 1997, Sec. 416.994a 
was amended by removing paragraphs (b)(4), (b)(5), (c)(4), (d) (f)(1), 
and

[[Page 798]]

(f)(2), redesignating paragraphs (e) through (i) as paragraphs (d) 
through (h), redesignating paragraphs (f)(3) and (f)(4) as paragraphs 
(e)(1) and (e)(2), adding paragraph (i), revising the section heading 
and paragraphs (a)(1), revising the first sentence of the introductory 
text to paragraph (b), adding two sentences between the first and second 
sentences of the introductory text to paragraph (b), revising paragraphs 
(b)(1) through (b)(3), adding one sentence between the first and second 
sentences of the introductory text to paragraph (c), revising the third 
and fourth sentences of redesignated paragraph (d), revising the 
introductory text to redesignated paragraph (e), revising paragraph 
(e)(1), revising the second sentence of the introductory text to 
redesignated paragraph (f), and revising paragraphs (f)(4) and (g)(5), 
effective Apr. 14, 1997. For the convenience of the user, the superseded 
text is set forth as follows:

Sec. 416.994a  How we will determine whether your disability continues 
          or ends, disabled children.

    (a) * * *
    (1) If your current impairment(s) does not meet or equal any current 
listing, we determine whether there has been any medical improvement in 
your impairment(s) that is ``related to the ability to work,'' i.e., 
your ability to function independently, appropriately, and effectively 
in an age-appropriate manner. (We define the term ``medical 
improvement'' in paragraph (c). We define the term ``related to the 
ability to work'' as it applies to children in paragraph (d).) If there 
has not been any medical improvement in your impairment(s), or if the 
medical improvement is not related to the ability to work, we will 
generally find that your disability continues; there are exceptions to 
this general rule, which we describe in paragraphs (f) and (g). If there 
has been medical improvement related to the ability to work, or when 
certain exceptions apply, we will determine whether you are currently 
disabled under the rules in Secs. 416.924 through 416.924e. Even where 
medical improvement related to your ability to work or an exception 
applies, in most cases, we will find that your disability has ended only 
if we also find that you are not currently disabled.

                                * * * * *

    (b) Sequence of evaluation. To assure that disability reviews are 
carried out in a uniform manner, that decisions of continuing disability 
can be made in the most expeditious and administratively efficient way, 
and that any decisions to stop disability benefits are made objectively, 
neutrally, and are fully documented, we follow specific steps in 
determining whether your disability continues. * * *
    (1) Do you have an impairment(s) that meets or equals the severity 
of any impairment listed in appendix 1 of subpart P of part 404 of this 
chapter? If you have an impairment that meets a current listing, or an 
impairment or combination of impairments that is of equivalent severity 
to a current listing, we will find that your disability continues. For 
our rules on how we determine whether impairments meet or are equivalent 
to listings, see Secs. 416.925 and 416.926a.
    (2) Has there been medical improvement in your condition(s)? If you 
do not have an impairment(s) that meets or is equivalent to any current 
listing we will determine whether there has been medical improvement in 
your impairment(s) since our most recent favorable determination or 
decision. (The term medical improvement is defined in paragraph (c).) If 
there has been medical improvement, as shown by a decrease in the 
medical severity of your impairment(s), we will proceed to the next 
step. If there has been no decrease in the medical severity of your 
impairment(s), we will find that your disability continues, unless one 
of the exceptions to medical improvement described in (f) or (g) 
applies.
    (i) If one of the first group of exceptions to medical improvement 
applies, we will proceed to step 4.
    (ii) If one of the second group of exceptions to medical improvement 
applies, we may find that your disability has ended.
    (3) If there has been medical improvement, is it related to the 
ability to work? If there has been medical improvement in your 
impairment(s), we will determine whether your medical improvement is 
related to the ability to work, as defined for children in (d). If it 
is, we will proceed to the next step. If the medical improvement of your 
impairment(s) is not related to the ability to work, we will find that 
your disability continues, unless one of the exceptions to medical 
improvement described in (f) or (g) applies.
    (i) If one of the first group of exceptions to medical improvement 
applies, we will proceed to the next step.
    (ii) If one of the second group of exceptions to medical improvement 
applies, we may find that your disability has ended.
    (b)(4) Do you have a severe impairment or combination of 
impairments? If there has been medical improvement in your impairment(s) 
related to the ability to work, or if one of the first group of 
exceptions applies, we will determine whether your current impairment(s) 
is severe, as defined in Sec. 416.924(d). If your impairment(s) is not 
severe, we will find that your disability has ended. If your 
impairment(s) is severe, we will proceed to the last step.
    (b)(5) Are you currently disabled? In connection with our 
determination that there has been medical improvement in your 
impairment(s) related to the ability to work, or if

[[Page 799]]

one of the first group of exceptions applies, and you have a severe 
impairment or combination of impairments, we will do an individualized 
functional assessment of the impact of your impairment(s) on your 
overall ability to function independently, appropriately, and 
effectively in an age-appropriate manner. (See Secs. 416.924d and 
416.924e.) We will use this individualized functional assessment to 
decide whether you are currently disabled; that is, whether you have an 
impairment(s) of comparable severity to an impairment that would prevent 
an adult from engaging in substantial gainful activity. We will apply 
the rules and guidelines governing the last step of the childhood 
sequential evaluation process for initial claims in Sec. Sec. 416.924 
through 416.924e. If you are currently disabled, your eligibility will 
continue. If you are not currently disabled, your eligibility for 
disability benefits will end.

                                * * * * *

    (c) * * *
    (c)(4) If we find that there has been improvement in your symptoms, 
signs, or laboratory findings, we will find that medical improvement has 
occurred and proceed to determine whether the medical improvement is 
related to your ability to work.
    (d) What we mean by medical improvement related to the ability to 
work. For a child, we say that medical improvement is related to the 
ability to work when there has been an increase in the ability to 
function independently, appropriately, and effectively in an age-
appropriate manner. Hence, if your impairment(s) has medically improved 
as defined in (c), but your ability to function in an age-appropriate 
manner has not increased, we will find that your medical improvement is 
not related to your ability to work. A determination that there has been 
medical improvement related to your ability to work does not necessarily 
mean that we will find that your disability has ended. We must also show 
that you are not currently disabled using rules governing severity and 
the last step of the childhood sequential evaluation process for initial 
claims in Sec. Sec. 416.924 through 416.924e. We determine whether 
medical improvement is related to the ability to work as follows:
    (1) Previous decision based on a finding that your impairment(s) met 
or equaled a listing. (i) We do not consider whether your impairment(s) 
has medically improved until we have decided that you do not have an 
impairment(s) that meets or equals a current listing. If our most recent 
favorable decision was based on a finding that your impairment(s) met or 
equaled in severity a listing that is in our current Listing of 
Impairments and your impairment(s) no longer meets or equals that 
listing, we will find at this step that your medical improvement was 
related to your ability to work. We will do an individualized functional 
assessment and proceed to determine whether you are currently disabled 
or whether one of the exceptions applies, as set forth in paragraph 
(b)(5) of this section.
    (ii) If our most recent favorable decision was based on a finding 
that your impairment(s) met or equaled a listing that is no longer in 
the Listing of Impairments or that has since been revised, we will 
consider whether your impairment(s) continues to meet or equal that 
prior listing at this step. If your impairment(s) continues to meet or 
equal the prior listing, we will find that your disability continues, 
even though your impairment(s) does not meet or equal any current 
listing. If your impairment does not meet or equal the prior listing, we 
will find that your medical improvement was related to your ability to 
work. We will do an individualized functional assessment and proceed to 
determine whether you are currently disabled or whether one of the 
exceptions applies, as set forth in paragraph (b)(5) of this section.
    (2) Previous decision based on an individualized functional 
assessment. If our most recent favorable decision was based on an 
individualized functional assessment, we will do a new individualized 
functional assessment based on the previously existing impairments. 
However, the new individualized functional assessment will take into 
consideration any current medical findings or functional limitations 
related to the previously existing impairments, and will be based on 
those functions that are appropriate to your current age.
    (i) We will use this assessment to determine whether there has been 
an increase in your ability to function in an age-appropriate manner 
since our most recent favorable decision by comparing our current 
assessment with the assessment we made at the time of the most recent 
favorable decision.
    (ii) We will not generally do a new individualized functional 
assessment for the time of the most recent favorable decision; we will 
use the assessment we made at the time of the last decision. However, if 
the most recent favorable decision was based on an individualized 
functional assessment and we do not have that assessment (for example, 
because it is missing from your file), we will have to reconstruct the 
assessment. We will do this by assuming that you had the maximum 
functional abilities consistent with a decision of allowance or 
continuance at the time of the most recent favorable decision.
    (iii) If there has been improvement in your age-appropriate 
functioning, we will find that your medical improvement is related to 
the ability to work, and proceed to determine whether you are currently 
disabled or

[[Page 800]]

whether one of the exceptions applies, as set forth in paragraph (b)(5) 
of this section.
    (e) * * * If so, your benefits will continue unless one of the 
second group of exceptions applies (see paragraph (g) of this section). 
If not, we will determine whether an attempt should be made to 
reconstruct those portins of the missing file that were relevant to our 
most recent favorable decision (e.g., school records, medical evidence 
from treating sources, and the results of consultative examinations). * 
* *
    (f) First group of exceptions to medical improvement. The law 
provides certain limited situations when your disability can be found to 
have ended even though medical improvement has not occurred, if your 
impairment(s) is no longer of comparable severity to any impairment(s) 
that would make an adult disabled. These exceptions to medical 
improvement are intended to provide a way of finding that a person is no 
longer disabled in those limited situations where, even though there has 
been no decrease in severity of the impairment(s), evidence shows that 
the person should no longer be considered disabled or never should have 
been considered disabled. If one of these exceptions applies, we must 
also show that your impairment(s) is now no longer of comparable 
severity to any impairment(s) that would disable an adult before we can 
find you are no longer disabled, taking all your current impairments 
into account, not just those that existed at the time of our most recent 
favorable decision. As part of the review process, you will be asked 
about any medical or vocational therapy you received or are receiving. 
Your answers and the evidence gathered as a result, as well as all other 
evidence, will serve as the basis for the finding that an exception 
applies.
    (1) Substantial evidence shows that you are the beneficiary of 
advances in medical or vocational therapy or technology (related to your 
ability to work). Advances in medical or vocational therapy or 
technology are improvements in treatment or rehabilitative methods which 
have reduced the severity of your impairment(s). We will apply this 
exception when substantial evidence shows that you have been the 
beneficiary of services which reflect these advances and they have 
favorably affected the severity of your impairment or your ability to 
function in an age-appropriate manner. This decision will be based on 
substantial evidence which includes new medical evidence and a new 
individualized functional assessment. (See Secs. 416.924d and 416.924e.) 
This exception does not apply if you are eligible to receive special 
Supplemental Security Income cash benefits, as explained in 
Sec. 416.261. In many instances, an advanced medical therapy or 
technology will result in a decrease in severity as shown by symptoms, 
signs, and laboratory findings which will meet the definition of medical 
improvement. This exception should, therefore, have limited application.
    (2) Substantial evidence shows that you have undergone vocational 
therapy (related to your ability to work). Vocational therapy (related 
to your ability to work) may include, but is not limited to, education, 
training, or work experience that improves your ability to meet the 
vocational requirements of jobs. This decision will be based on 
substantial evidence which includes new medical evidence and a new 
individualized functional assessment. (See Secs. 416.924d and 416.924e.) 
This exception does not apply if you are eligible to receive special 
Supplemental Security Income cash benefits, as explained in 
Sec. 416.261. If at the time of our review, you have not completed 
vocational therapy which could affect the continuance of your 
disability, we will review your claim upon completion of the therapy.
    (3) Substantial evidence shows that, based on new or improved 
diagnostic or evaluative techniques, your impairment(s) is not as 
disabling as it was considered to be at the time of the most recent 
favorable decision. Changing methodologies and advances in medical and 
other diagnostic or evaluative techniques have given rise to, and will 
continue to give rise to, improved methods for determining the causes of 
(i.e., diagnosing) and measuring and documenting the effects of various 
impairments on children and their functioning. Where, by such new or 
improved methods, substantial evidence shows that your impairment(s) is 
not as severe as was determined at the time of our most recent favorable 
decision, such evidence may serve as a basis for a finding that you are 
no longer disabled, provided that you do not currently have an 
impairment(s) that is of comparable severity to an impairment(s) that 
would disable an adult. In order to be used under this exception, 
however, the new or improved techniques must have become generally 
available after the date of our most recent favorable decision.
    (i) How we will determine which methods are new or improved 
techniques and when they become generally available. New or improved 
diagnostic techniques or evaluations will come to our attention by 
several methods. In reviewing cases, we often become aware of new 
techniques when their results are presented as evidence. Such techniques 
and evaluations are also discussed and acknowledged in medical 
literature by medical professional groups and other governmental 
entities. Through these sources, we develop listings of new techniques 
and when they become generally available. For example, we will consult 
the Health Care Financing Administration for its experience regarding 
when a technique is recognized for payment under Medicare and when they 
began paying for the technique.

[[Page 801]]

    (ii) How you will know which methods are new or improved techniques 
and when they become generally available. We will let you know which 
methods we consider to be new or improved techniques and when they 
become available through two vehicles.
    (A) Some of the future changes in the Listing of Impairments in 
appendix 1 of subpart P of part 404 of this chapter will be based on new 
or improved diagnostic or evaluative techniques. Such listings changes 
will clearly state this fact as they are published as Notices of 
Proposed Rulemaking and the new or improved technique will be considered 
generally available as of the date of the final publication of that 
particular listing in the Federal Register.
    (B) From time to time, we will publish in the Federal Register 
cumulative lists of new or approved diagnostic techniques or evaluations 
that have been in use since 1970, how they changed the evaluation of the 
applicable impairment and the month and year they became generally 
available. We will include any changes in the Listing of Impairments 
published in the Code of Federal Regulations since 1970 that are 
reflective of new or improved techniques. We will not process any cases 
under this exception using a new or improved diagnostic technique that 
we have not included in a published notice until we have published an 
updated cumulative list. The period between publications will be 
determined by the volume of changes needed.

                                * * * * *

    (g) * * *  In these situations, the determination or decision will 
be made without a finding that you have demonstrated medical improvement 
related to the ability to work or that you are currently not disabled 
under the rules in Secs. 416.924 through 416.924e. * * * 

                                * * * * *

    (4) You fail to follow prescribed treatment which would be expected 
to restore your ability to function independently, appropriately, and 
effectively in an age-appropriate manner. If treatment has been 
prescribed for you which would be expected to restore your ability to 
function independently, appropriately, and effectively in an age-
appropriate manner, you must follow that treatment in order to be paid 
benefits. If you are not following that treatment and you do not have 
good cause for failing to follow that treatment, we will find that your 
disability has ended (see Sec. 416.930(c)). The month your disability 
ends will be the first month in which you failed to follow the 
prescribed treatment.

                                * * * * *

    (h) * * *
    (5) The first month in which you were told by your physician that 
you could return to age-appropriate activities, provided there is no 
substantial conflict between your physician's and your statements 
regarding your awareness of your capacity, and the earlier date is 
supported by substantial evidence; or

                                * * * * *

    Effective Date Note 2: At 62 FR 13538, Mar. 21, 1997, Sec. 416.994a 
was amended by correcting the spelling of ``equaled'' in paragraph 
(b)(2), effective Apr. 14, 1997.

    Effective Date Note 3: At 62 FR 13733, Mar. 21, 1997, a number of 
word corrections were made to Sec. 416.994a, effective Apr. 14, 1997. 
The corrections have been incorporated into the text as printed above.



Sec. 416.995  If we make a determination that your physical or mental impairment(s) has ceased, did not exist or is no longer disabling (Medical Cessation 
          Determination).

    If we make a determination that the physical or mental impairment(s) 
on the basis of which disability or blindness benefits were payable has 
ceased, did not exist or is no longer disabling (a medical cessation 
determination), your benefits will stop. You will receive a written 
notice explaining this determination and the month your benefits will 
stop. The written notice will also explain your right to appeal if you 
disagree with our determination and your right to request that your 
disability or blindness benefits be continued under Sec. 416.996. The 
continued benefit provisions of this section do not apply to an initial 
determination on an application for disability or blindness benefits or 
to a determination that you were disabled or blind only for a specified 
period of time.

[53 FR 29023, Aug. 2, 1988]



Sec. 416.996  Continued disability or blindness benefits pending appeal of a medical cessation determination.

    (a) General. If we determine that you are not eligible for 
disability or blindness benefits because the physical or mental 
impairment(s) on the basis of which such benefits were payable is found 
to have ceased, not to have existed, or to no longer be disabling, and 
you appeal that determination, you may choose to have your disability or

[[Page 802]]

blindness benefits, including special cash benefits or special SSI 
eligibility status under Secs. 416.261 and 416.264, continued pending 
reconsideration and/or a hearing before an administrative law judge on 
the disability/blindness cessation determination. If you appeal a 
medical cessation under both title II and title XVI (a concurrent case), 
the title II claim will be handled in accordance with title II 
regulations while the title XVI claim will be handled in accordance with 
the title XVI regulations.
    (1) Benefits may be continued under this section only if the 
determination that your physical or mental impairment(s) has ceased, has 
never existed, or is no longer disabling is made after October 1984.
    (2) Continued benefits under this section will stop effective with 
the earlier of: (i) The month before the month in which an 
administrative law judge's hearing decision finds that your physical or 
mental impairment(s) has ceased, has never existed, or is no longer 
disabling or the month before the month of a new administrative law 
judge decision (or final action is taken by the Appeals Council on the 
administrative law judge's recommended decision) if your case was sent 
back to an administrative law judge for further action; or (ii) the 
month before the month in which no timely request for reconsideration or 
administrative law judge hearing is pending after notification of our 
initial or reconsideration cessation determination. These benefits may 
be stopped or adjusted because of certain events (such as, change in 
income or resources or your living arrangements) which may occur while 
you are receiving these continued benefits, in accordance with 
Sec. 416.1336(b).
    (b) Statement of choice. If you or another party (see 
Sec. 416.1432(a)) request reconsideration under Sec. 416.1409 or a 
hearing before an administrative law judge in accordance with 
Sec. 416.1433 on our determination that your physical or mental 
impairment(s) has ceased, has never existed, or is no longer disabling, 
or if your case is sent back (remanded) to an administrative law judge 
for further action, we will explain your right to receive continued 
benefits and ask you to complete a statement indicating that you wish to 
have benefits continued pending the outcome of the reconsideration or 
administrative law judge hearing. If you request reconsideration and/or 
hearing but you do not want to receive continued benefits, we will ask 
you to complete a statement declining continued benefits indicating that 
you do not want to have your benefits continued during the appeal. A 
separate election must be made at each level of appeal.
    (c) What you must do to receive continued benefits pending notice of 
our reconsideration determination. (1) If you want to receive continued 
benefits pending the outcome of your request for reconsideration, you 
must request reconsideration and continuation of benefits no later than 
10 days after the date you receive the notice of our initial 
determination that your physical or mental impairment(s) has ceased, has 
never existed, or is no longer disabling. Reconsideration must be 
requested as provided in Sec. 416.1409, and you must request continued 
benefits using a statement in accordance with paragraph (b) of this 
section.
    (2) If you fail to request reconsideration and continued benefits 
within the 10-day period required by paragraph (c)(1) of this section, 
but later ask that we continue your benefits pending a reconsidered 
determination, we will use the rules in Sec. 416.1411 to determine 
whether good cause exists for your failing to request benefit 
continuation within 10 days after receipt of the notice of the initial 
cessation determination. If you request continued benefits after the 10-
day period, we will consider the request to be timely and will pay 
continued benefits only if good cause for delay is established.
    (d) What you must do to receive continued benefits pending an 
administrative law judge's decision. (1) To receive continued benefits 
pending an administrative law judge's decision on our reconsideration 
determination, you must request a hearing and continuation of benefits 
no later than 10 days after the date you receive the notice of our 
reconsideration determination that your physical or mental impairment(s) 
has ceased, has never existed, or is no longer disabling. A hearing must 
be requested as provided in Sec. 416.1433, and

[[Page 803]]

you must request continued benefits using a statement in accordance with 
paragraph (b) of this section.
    (2) If you fail to request a hearing and continued benefits within 
the 10-day period required under paragraph (d)(1) of this section, but 
you later ask that we continue your benefits pending an administrative 
law judge's decision, we will use the rules as provided in Sec. 416.1411 
to determine whether good cause exists for your failing to request 
benefit continuation within 10 days after receipt of the reconsideration 
determination. If you request continued benefits after the 10-day 
period, we will consider the delayed request to be timely and will pay 
continued benefits only if good cause for delay is established.
    (e) What you must do when your case is remanded to an administrative 
law judge. If we send back (remand) your case to an administrative law 
judge for further action under the rules provided in Sec. 416.1477, and 
the administrative law judge's decision or dismissal order issued on 
your medical cessation appeal is vacated and is no longer in effect, you 
may be eligible for continued benefits pending a new decision by the 
administrative law judge or final action by the Appeals Council on the 
administrative law judge's recommended decision.
    (1) When your case is remanded to an administrative law judge, and 
you have elected to receive continued benefits, we will contact you to 
update our file to verify that you continue to meet the nonmedical 
requirements to receive benefits based on disability or blindness. To 
determine your correct payment amount, we will ask you to provide 
information about events such as changes in living arrangements, income, 
or resources since our last contact with you. If you have returned to 
work, we will request additional information about this work activity. 
Unless your earnings cause your income to be too much to receive 
benefits, your continued benefits will be paid while your appeal of the 
medical cessation of your disability/blindness is still pending, unless 
you have completed a trial work period and are engaging in substantial 
gainful activity. If you have completed a trial work period and 
previously received continued benefits you may still be eligible for 
special cash benefits under Sec. 416.261 or special SSI eligibility 
status under Sec. 416.264. (Effective July 1, 1987, a title XVI 
individual is no longer subject to a trial work period or cessation 
based on engaging in substantial gainful activity in order to be 
eligible for special benefits under Sec. 416.261 or special status under 
Sec. 416.264.) If we determine that you no longer meet a requirement to 
receive benefits, we will send you a written notice. The written notice 
will explain why your continued benefits will not be reinstated or will 
be for an amount less than you received before the prior administrative 
law judge's decision. The notice will also explain your right to 
reconsideration under Sec. 416.1407, if you disagree. If you request a 
reconsideration, you will have the chance to explain why you believe 
your benefits should be reinstated or should be at a higher amount. If 
the final decision on your appeal of your medical cessation is a 
favorable one, we will send you a written notice in which we will advise 
you of any right to reentitlement to benefits including special benefits 
under Sec. 416.261 or special status under Sec. 416.264. If you disagree 
with our determination on your appeal, you will have the right to appeal 
this decision.
    (2) After we verify that you meet all the nonmedical requirements to 
receive benefits as stated in paragraph (e)(1) of this section, and if 
you previously elected to receive continued benefits pending the 
administrative law judge's decision, we will start continued benefits 
again. We will send you a notice telling you this. You do not have to 
complete a request to have these same benefits continued through the 
month before the month the new decision or order of dismissal is issued 
by the administrative law judge or through the month before the month 
the Appeals Council takes final action on the administrative law judge's 
recommended decision. These continued benefits will begin again with the 
first month of nonpayment based on the prior administrative law judge 
hearing decision or dismissal order. Our notice explaining continued 
benefits will also tell you to report to us any changes or

[[Page 804]]

events that affect your receipt of benefits.
    (3) When your case is remanded to an administrative law judge, and 
if you did not previously elect to have benefits continued pending an 
administrative law judge decision, we will send you a notice telling you 
that if you want to change that election, you must request to do so no 
later than 10 days after you receive our notice. If you do make this new 
election, and after we verify that you meet all the nonmedical 
requirements as explained in paragraph (e)(1) of this section, benefits 
will begin with the month of the Appeals Council remand order and will 
continue as stated in paragraph (e)(2) of this section.
    (4) If a court orders that your case be sent back to us (remanded) 
and your case is sent to an administrative law judge for further action 
under the rules provided in Sec. 416.1483, the administrative law 
judge's decision or dismissal order on your medical cessation appeal is 
vacated and is no longer in effect. You may be eligible for continued 
benefits pending a new decision by the administrative law judge or final 
action by the Appeals Council on the administrative law judge's 
recommended decision. In these court-remanded cases reaching the 
administrative law judge, we will follow the same rules provided in 
paragraph (e) (1), (2), and (3) of this section.
    (f) What if your benefits are suspended, reduced or terminated for 
other reasons. If we determine that your payments should be reduced, 
suspended or terminated for reasons not connected with your medical 
condition (see subpart M of Regulations No. 16) benefits may be 
continued under the procedure described in Sec. 416.1336.
    (g) Responsibility to pay back continued benefits. (1) If the final 
decision of the Secretary affirms the determination that you are not 
entitled to benefits, you will be asked to pay back any continued 
benefits you receive. However, you will have the right to ask that you 
not be required to pay back the benefits as described in the overpayment 
recovery and waiver provisions of subpart E of this part.
    (2) Waiver of recovery of an overpayment resulting from continued 
benefits to you may be considered as long as the cessation determination 
was appealed in good faith. We will assume that your appeal was made in 
good faith and, therefore, you have the right to waiver consideration 
unless you fail to cooperate in connection with the appeal, e.g., if you 
fail (without good reason) to give us medical or other evidence we 
request, or to go for a physical or mental examination when requested, 
in connection with the appeal. In determining whether you have good 
cause for failure to cooperate and, thus, whether an appeal was made in 
good faith, we will take into account any physical, mental, educational, 
or linguistic limitations (including any lack of facility with the 
English language) you may have which may have caused your failure to 
cooperate.

[53 FR 29023, Aug. 2, 1988; 53 FR 39015, Oct. 4, 1988, as amended at 59 
FR 1637, Jan. 12, 1994]



Sec. 416.998  If you become disabled by another impairment(s).

    If a new severe impairment(s) begins in or before the month in which 
your last impairment(s) ends, we will find that your disability is 
continuing. The new impairment(s) need not be expected to last 12 months 
or to result in death, but it must be severe enough to keep you from 
doing substantial gainful activity, or severe enough so that you are 
still disabled under Sec. 416.994, or, if you are a child, to result in 
marked and severe functional limitations.

[62 FR 6432, Feb. 11, 1997]

    Effective Date Note:  At 62 FR 6432, Feb. 11, 1997, Sec. 416.998 was 
revised, effective Apr. 14, 1997. For the convenience of the user, the 
superseded text is set forth as follows:

Sec. 416.998  If you become disabled by another impairment(s).

    If a new severe impairment(s) begins in or before the month in which 
your last impairment(s) ends, we will find that your disability is 
continuing. The new impairment(s) need not be expected to last 12 months 
or to result in death, but it must be severe enough to keep you from 
doing substantial gainful activity, or severe enough so that you are 
still disabled under Sec. 416.994.

[50 FR 50147, Dec. 6, 1985; 51 FR 16015, Apr. 30, 1986]

[[Page 805]]



                 Subpart J--Determinations of Disability

    Authority:  Secs. 702(a)(5), 1614, 1631, and 1633 of the Social 
Security Act (42 U.S.C. 902(a)(5), 1382c, 1383, and 1383b).

    Source:  46 FR 29211, May 29, 1981, unless otherwise noted.

                           General Provisions



Sec. 416.1001  Purpose and scope.

    This subpart describes the standards of performance and 
administrative requirements and procedures for States making 
determinations of disability for the Secretary under title XVI of the 
Act. It also establishes the Secretary's responsibilities in carrying 
out the disability determination function.
    (a) Sections 416.1001 through 416.1003 describe the purpose of the 
regulations and the meaning of terms frequently used in the regulations. 
They also briefly set forth the responsibilities of the Secretary and 
the States covered in detail in other sections.
    (b) Sections 416.1010 through 416.1018 describe the Secretary's and 
the State's responsibilities in performing the disability determination 
function.
    (c) Sections 416.1020 through 416.1033 describe the administrative 
responsibilities and requirements of the States. The corresponding role 
of the Secretary is also set out.
    (d) Sections 416.1040 through 416.1050 describe the performance 
accuracy and processing time standards for measuring State agency 
performance.
    (e) Sections 416.1060 through 416.1061 describe when and what kind 
of assistance the Secretary will provide State agencies to help them 
improve performance.
    (f) Sections 416.1070 through 416.1075 describe the level of 
performance below which the Secretary will consider a State agency to be 
substantially failing to make disability determinations consistent with 
the regulations and other written guidelines and the resulting action 
the Secretary will take.
    (g) Sections 416.1080 through 416.1083 describe the rules for 
resolving disputes concerning fiscal issues and providing hearings when 
we propose to find that a State is in substantial failure.
    (h) Sections 416.1090 through 416.1094 describe when and what action 
the Secretary will take and what action the State will be expected to 
take if the Secretary assumes the disability determination function from 
a State agency.



Sec. 416.1002  Definitions.

    For purposes of this subpart:
    Act means the Social Security Act, as amended.
    Class or classes of cases means the categories into which disability 
claims are divided according to their characteristics.
    Determination of disability or disability determination means one or 
more of the following decisions:
    (a) Whether or not a person is under a disability;
    (b) The date a person's disability began; or
    (c) The date a person's disability ended.
    Disability means disability or blindness as defined in sections 
1614(a)(2) and (3) of the Act.
    Disability determination function means making determinations as to 
disability or blindness and carrying out related administrative and 
other responsibilities.
    Disability program means the Federal program for providing 
supplemental security income benefits for the blind and disabled under 
title XVI of the Act, as amended.
    Initial means the first level of disability or blindness 
adjudication.
    Other written guidelines means written issuances such as Social 
Security Rulings and memoranda by the Commissioner of Social Security, 
the Deputy Commissioner for Programs, or the Associate Commissioner for 
Disability and the procedures, guides, and operating instructions in the 
Disability Insurance sections of the Program Operations Manual System 
that are instructive, interpretive, clarifying, and/or administrative 
and not designated as advisory or discretionary. The purpose of 
including the foregoing material in the definition is to assure uniform 
national application of program standards and service delivery to the 
public.

[[Page 806]]

    Regulations means regulations in this subpart issued under sections 
1102, 1631(c) and 1633(a) of the Act, unless otherwise indicated.
    Secretary means the Secretary of the Department of Health and Human 
Services or the Secretary's delegate.
    State means any of the 50 States of the United States and the 
District of Columbia. It includes the State agency.
    State agency means that agency of a State which has been designated 
by the State to carry out the disability determination function.
    We, us, and our refers to the Social Security Administration (SSA) 
or the Secretary, as appropriate.

[46 FR 29211, May 29, 1981, as amended at 56 FR 11021, Mar. 14, 1991]



Sec. 416.1003  Basic responsibilities for us and the State.

    (a) General. We will work with the State to provide and maintain an 
effective system for processing claims of those who apply for and who 
are receiving benefits under the disability program. We will provide 
program standards, leadership, and oversight. We do not intend to become 
involved in the State's ongoing management of the program except as is 
necessary and in accordance with these regulations. The State will 
comply with our regulations and other written guidelines.
    (b) Our responsibilities. We will:
    (1) Periodically review the regulations and other written guidelines 
to determine whether they insure effective and uniform administration of 
the disability program. To the extent feasible, we will consult with and 
take into consideration the experience of the States in issuing 
regulations and guidelines necessary to insure effective and uniform 
administration of the disability program;
    (2) Provide training materials or in some instances conduct or 
specify training (see Sec. 416.1022);
    (3) Provide funds to the State agency for the necessary cost of 
performing the disability determination function (see Sec. 416.1026);
    (4) Monitor and evaluate the performance of the State agency under 
the established standards (see Secs. 416.1044 and 416.1045); and
    (5) Maintain liaison with the medical profession nationally and with 
national organizations and agencies whose interests or activities may 
affect the disability program.
    (c) Responsibilities of the State. The State will:
    (1) Provide management needed to insure that the State agency 
carries out the disability determination function so that disability 
determinations are made accurately and promptly;
    (2) Provide an organizational structure, adequate facilities, 
qualified personnel, medical consultant services, and a quality 
assurance function (Secs. 416.1020 through 416.1024);
    (3) Furnish reports and records relating to the administration of 
the disability program (Sec. 416.1025);
    (4) Submit budgets (Sec. 416.1026);
    (5) Cooperate with audits (Sec. 416.1027);
    (6) Insure that all applicants for and recipients of disability 
benefits are treated equally and courteously;
    (7) Be responsible for property used for disability program purposes 
(Sec. 416.1028);
    (8) Take part in the research and demonstration projects 
(Sec. 416.1029);
    (9) Coordinate with other agencies (Sec. 416.1030);
    (10) Safeguard the records created by the State in performing the 
disability determination function (Sec. 416.1031);
    (11) Comply with other provisions of the Federal law and regulations 
that apply to the State in performing the disability determination 
function;
    (12) Comply with other written guidelines (Sec. 416.1033);
    (13) Maintain liaison with the medical profession and organizations 
that may facilitate performing the disability determination function; 
and
    (14) Assist us in other ways that we determine may promote the 
objectives of effective and uniform administration.

  Responsibilities for Performing the Disability Determination Function



Sec. 416.1010  How a State notifies us that it wishes to perform the disability determination function.

    (a) Deemed notice. Any State that has in effect as of June 1, 1981, 
an agreement with us to make disability determinations will be deemed to 
have given

[[Page 807]]

us notice that it wishes to perform the disability determination 
function, in lieu of continuing the agreement in effect after June 1, 
1981.
    (b) Written notice. After June 1, 1981, a State not making 
disability determinations that wishes to perform the disability 
determination function under these regulations must notify us in 
writing. The notice must be from an official authorized to act for the 
State for this purpose. The State will provide an opinion from the 
State's Attorney General verifying the authority of the official who 
sent the notice to act for the State.



Sec. 416.1011  How we notify a State whether it may perform the disability determination function.

    (a) If a State notifies us in writing that it wishes to perform the 
disability determination function, we will notify the State in writing 
whether or not it may perform the function. The State will begin 
performing the disability determination function beginning with the 
month we and the State agree upon.
    (b) If we have previously found that a State agency has 
substantially failed to make disability determinations in accordance 
with the law or these regulations and other written guidelines or if the 
State has previously notified us in writing that it does not wish to 
make disability determinations, the notice will advise the State whether 
the State agency may again make the disability determinations and, if 
so, the date and the conditions under which the State may again make 
them.



Sec. 416.1013  Disability determinations the State makes.

    (a) General rule. A State agency will make determinations of 
disability with respect to all persons in the State except those 
individuals whose cases are in a class specifically excluded by our 
written guidelines. A determination of disability made by the State is 
the determination of the Secretary, except as described in 
Sec. 416.903(d)(1).
    (b) New classes of cases. Where any new class or classes of cases 
arise requiring determinations of disability, we will determine the 
conditions under which a State may choose not to make the disability 
determinations. We will provide the State with the necessary funding to 
do the additional work.
    (c) Temporary transfer of classes of cases. We will make disability 
determinations for classes of cases temporarily transferred to us by the 
State agency if the State agency asks us to do so and we agree. The 
State agency will make written arrangements with us which will specify 
the period of time and the class or classes of cases we will do.



Sec. 416.1014  Responsibilities for obtaining evidence to make disability determinations.

    (a) The State agency will secure from the claimant, or other 
sources, any evidence it needs to make a disability determination.
    (b) We will secure from the claimant or other special arrangement 
sources, any evidence we can obtain as adequately and more readily than 
the State agency. We will furnish the evidence to the State agency for 
use in making a disability determination
    (c) At our request, the State agency will obtain and furnish medical 
or other evidence and provide assistance as may be necessary for us to 
carry out our responsibility for making disability determinations in 
those classes of cases described in the written guidelines for which the 
State agency does not make the determination.



Sec. 416.1015  Making disability determinations.

    (a) When making a disability determination, the State agency will 
apply subpart I, part 416, of our regulations.
    (b) The State agency will make disability determinations based only 
on the medical and nonmedical evidence in its files.
    (c) Disability determinations will be made by either:
    (1) A State agency medical or psychological consultant and a State 
agency disability examiner;
    (2) A State agency disability examiner alone when there is no 
medical evidence to be evaluated (i.e., no medical evidence exists or we 
are unable, despite making every reasonable effort, to obtain any 
medical evidence that may exist) and the individual fails or

[[Page 808]]

refuses, without a good reason, to attend a consultative examination 
(see Sec. 416.918); or
    (3) A State agency disability hearing officer.

See Sec. 416.1016 for the definition of medical or psychological 
consultant and Sec. 416.1415 for the definition of disability hearing 
officer. The State agency disability examiner and disability hearing 
officer must be qualified to interpret and evaluate medical reports and 
other evidence relating to the claimant's physical or mental impairments 
and as necessary to determine the capacities of the claimant to perform 
substantial gainful activity. See Sec. 416.972 for what we mean by 
substantial gainful activity.
    (d) An initial determination by the State agency that an individual 
is not disabled, in any case where there is evidence which indicates the 
existence of a mental impairment, will be made only after every 
reasonable effort has been made to ensure that a qualified psychiatrist 
or psychologist has completed the medical portion of the case review and 
any applicable residual functional capacity assessment. (See 
Sec. 416.1016 for the qualifications we consider necessary for a 
psychologist to be a psychological consultant and Sec. 416.1017 for what 
we mean by reasonable effort.) If the services of qualified 
psychiatrists or psychologists cannot be obtained because of impediments 
at the State level, the Secretary may contract directly for the 
services. In a case where there is evidence of mental and nonmental 
impairments and a qualified psychologist serves as a psychological 
consultant, the psychologist will evaluate only the mental impairment, 
and a physician will evaluate the nonmental impairment. The overall 
determination of impairment severity in combined mental and nonmental 
impairment cases will be made by a medical consultant and not a 
psychological consultant unless the mental impairment alone would 
justify a finding of disability.
    (e) In making a determination under title XVI with respect to the 
disability of a child to whom paragraph (d) of this section does not 
apply, we will make reasonable efforts to ensure that a qualified 
pediatrician or other individual who specializes in a field of medicine 
appropriate to the child's impairment(s) evaluates the case of the 
child.
    (f) The State agency will certify each determination of disability 
to us on forms we provide.
    (g) The State agency will furnish us with all the evidence it 
considered in making its determination.
    (h) The State agency will not be responsible for defending in court 
any determination made, or any procedure for making determinations, 
under these regulations.

[52 FR 23928, Sept. 9, 1987, as amended at 56 FR 11021, Mar. 14, 1991; 
58 FR 47587, Sept. 9, 1993; 61 FR 11136, Mar. 19, 1996]



Sec. 416.1016  Medical or psychological consultant.

    A medical consultant must be a physician. A psychological consultant 
used in cases where there is evidence of a mental impairment must be a 
qualified psychologist. For disability program purposes, a psychologist 
will not be considered qualified unless he or she:
    (a) Is licensed or certified as a psychologist at the independent 
practice level of psychology by the State in which he or she practices; 
and
    (b)(1) Possesses a doctorate degree in psychology from a program in 
clinical psychology of an educational institution accredited by an 
organization recognized by the Council on Post-Secondary Accreditation; 
or
    (2) Is listed in a national register of health service providers in 
psychology which the Secretary of Health and Human Services deems 
appropriate; and
    (c) Possesses 2 years of supervised clinical experience as a 
psychologist in health service, at least 1 year of which is post masters 
degree.

[52 FR 23928, Sept. 9, 1987]



Sec. 416.1017  Reasonable efforts to obtain review by a qualified psychiatrist or psychologist.

    (a) The State agency must determine if additional qualified 
psychiatrists and psychologists are needed to make the necessary reviews 
(see Sec. 416.1015(d)). Where it does not have sufficient resources to 
make the necessary reviews, the State agency must attempt to obtain the 
resources needed. If the State

[[Page 809]]

agency is unable to obtain additional psychiatrists and psychologists 
because of low salary rates or fee schedules it should attempt to raise 
the State agency's levels of compensation to meet the prevailing rates 
for psychiatrists' and psychologists' services. If these efforts are 
unsuccessful, the State agency will seek assistance from us. We will 
assist the State agency as necessary. We will also monitor the State 
agency's efforts and where the State agency is unable to obtain the 
necessary services, we will make every reasonable effort to provide the 
services using Federal resources.
    (b) Federal resources may include the use of Federal contracts for 
the services of qualified psychiatrists and psychologists to review 
mental impairment cases. Where Federal resources are required to perform 
these reviews, which are a basic State agency responsibility, and where 
appropriate, the State agency's budget will be reduced accordingly.
    (c) Where every reasonable effort is made to obtain the services of 
a qualified psychiatrist or psychologist to review a mental impairment 
case, but the professional services are not obtained, a physician who is 
not a psychiatrist will review the mental impairment case. For these 
purposes, every reasonable effort to ensure that a qualified 
psychiatrist or psychologist review mental impairment cases will be 
considered to have been made only after efforts by both State and 
Federal agencies as set forth in paragraphs (a) and (b) of this section 
are made.

[52 FR 23928, Sept. 9, 1987]



Sec. 416.1018  Notifying claimant of the disability determination.

    The State agency will prepare denial notices in accordance with 
subpart N of this part whenever it makes a disability determination 
which is wholly or partly unfavorable to the claimant.

            Administrative Responsibilities and Requirements



Sec. 416.1020  General administrative requirements.

    (a) The State will provide the organizational structure, qualified 
personnel, medical consultant services, and a quality assurance function 
sufficient to ensure that disability determinations are made accurately 
and promptly. We may impose specific administrative requirements in 
these areas and in those under ``Administrative Responsibilities and 
Requirements'' in order to establish uniform, national administrative 
practices or to correct the areas of deficiencies which may later cause 
the State to be substantially failing to comply with our regulations or 
other written guidelines. We will notify the State, in writing, of the 
administrative requirements being imposed and of any administrative 
deficiencies it is required to correct. We will allow the State 90 days 
from the date of this notice to make appropriate corrections. Once 
corrected, we will monitor the State's administrative practices for 180 
days. If the State does not meet the requirements or correct all of the 
deficiencies, or, if some of the deficiencies recur, we may initiate 
procedures to determine if the State is substantially failing to follow 
our regulations or other written guidelines.
    (b) The State is responsible for making accurate and prompt 
disability determinations.

[46 FR 29211, May 29, 1981, as amended at 56 FR 11021, Mar. 14, 1991; 56 
FR 13365, Apr. 1, 1991]



Sec. 416.1021  Personnel.

    (a) Equal Employment Opportunity. The State will comply with all 
applicable Federal statutes, executive orders and regulations concerned 
with equal employment opportunities.
    (b) Selection, tenure, and compensation. The State agency will, 
except as may be inconsistent with paragraph (a) of this section, adhere 
to applicable State approved personnel standards in the selection, 
tenure, and compensation of any individual employed in the disability 
program.
    (c) Travel. The State will make personnel available to attend 
meetings or workshops as may be sponsored or approved by us for 
furthering the purposes of the disability program.
    (d) Restrictions. Subject to appropriate Federal funding, the State 
will, to the best of its ability, facilitate the processing of 
disability claims by avoiding personnel freezes, restrictions

[[Page 810]]

against overtime work, or curtailment of facilities or activities.



Sec. 416.1022  Training.

    The State will insure that all employees have an acceptable level of 
competence. We will provide training and other instructional materials 
to facilitate basic and advanced technical proficiency of disability 
staff in order to insure uniformity and effectiveness in the 
administration of the disability program. We will conduct or specify 
training, as appropriate but only if:
    (a) A State agency's performance approaches unacceptable levels or
    (b) The material required for the training is complex or the 
capacity of the State to deliver the training is in doubt and uniformity 
of the training is essential.



Sec. 416.1023  Facilities.

    (a) Space, equipment, supplies, and other services. Subject to 
appropriate Federal funding, the State will provide adequate space, 
equipment, supplies, and other services to facilitate making accurate 
and prompt disability determinations.
    (b) Location of facilities. Subject to appropriate Federal funding, 
the State will determine the location where the disability determination 
function is to be performed so that disability determinations are made 
accurately and promptly.
    (c) Access. The State will permit us access to the premises where 
the disability determination function is performed and also where it is 
managed for the purposes of inspecting and obtaining information about 
the work and activities required by our regulations and assuring 
compliance with pertinent Federal statutes and regulations. Access 
includes personal onsite visits and other means, such as 
telecommunications, of contacting the State agency to obtain information 
about its functions. We will contact the State agency and give 
reasonable prior notice of the times and purposes of any visits.

[46 FR 29211, May 29, 1981, as amended at 56 FR 11022, Mar. 14, 1991]



Sec. 416.1024  Medical and other purchased services.

    The State will determine the rates of payment to be used for 
purchasing medical or other services necessary to make determinations of 
disability. The rates may not exceed the highest rate paid by Federal or 
other agencies in the State for the same or similar type of service. The 
State will maintain documentation to support the rates of payment it 
uses.



Sec. 416.1025  Records and reports.

    (a) The State will establish and maintain the records and furnish 
the schedules, financial, cost, and other reports relating to the 
administration of the disability programs as we may require.
    (b) The State will permit us and the Comptroller General of the 
United States (including duly authorized representatives) access to and 
the right to examine records relating to the work which the State 
performs under these regulations. These records will be retained by the 
State for the periods of time specified for retention of records in the 
Federal Procurement Regulations (41 CFR parts 1-20).



Sec. 416.1026  Fiscal.

    (a) We will give the State funds, in advance or by way of 
reimbursement, for necessary costs in making disability determinations 
under these regulations. Necessary costs are direct as well as indirect 
costs as defined in 41 CFR part 1-15, subpart 1-15.7 of the Federal 
Procurement Regulations System for costs incurred before April 1, 1984; 
and 48 CFR part 31, subpart 31.6 of the Federal Acquisition Regulations 
System and Federal Management Circular A-74-4 \1\ as amended or 
superseded for costs incurred after March 31, 1984.
---------------------------------------------------------------------------

    \1\ The circular is available from the Office of Administration, 
Publications Unit, Rm. G-236, New Executive Office Bldg., Washington, DC 
20503.
---------------------------------------------------------------------------

    (b) The State will submit estimates of anticipated costs in the form 
of a budget at the time and in the manner we require.
    (c) We will notify the State of the amount which will be made 
available

[[Page 811]]

to it as well as what anticipated costs are being approved.
    (d) The State may not incur or make expenditures for items of cost 
not approved by us or in excess of the amount we make available to the 
State.
    (e) After the close of a period for which funds have been made 
available to the State, the State will submit a report of its 
expenditures. Based on an audit arranged by the State under Pub. L. 98-
502, the Single Audit Act of 1984, or by the Inspector General of the 
Department of Health and Human Services or based on an audit or review 
by the Social Security Administration (see Sec. 416.1027), we will 
determine whether the expenditures were consistent with cost principles 
described in 41 CFR part 1-15, subpart 1-15.7 for costs incurred before 
April 1, 1984; and 48 CFR part 31, subpart 31.6 and Federal Management 
Circular A-74-4 for costs incurred after March 31, 1984; and in other 
applicable written guidelines in effect at the time the expenditures 
were made or incurred.
    (f) Any monies paid to the State which are used for purposes not 
within the scope of these regulations will be paid back to the Treasury 
of the United States.

[46 FR 29211, May 29, 1981, as amended at 56 FR 11022, Mar. 14, 1991]



Sec. 416.1027  Audits.

    (a) Audits performed by the State--(1) Generally. Audits of account 
and records pertaining to the administration of the disability program 
under the Act, will be performed by the States in accordance with the 
Single Audit Act of 1984 (Pub. L. 98-502) which establishes audit 
requirements for States receiving Federal assistance. If the audit 
performed by the State meets our program requirements, we will accept 
the findings and recommendations of the audit. The State will make every 
effort to act upon and resolve any items questioned in the audit.
    (2) Questioned items. Items questioned as a result of an audit under 
the Single Audit Act of 1984 of a cross-cutting nature will be resolved 
by the Department of Health and Human Services, Office of Grant and 
Contract Financial Management. A cross-cutting issue is one that 
involves more than one Federal awarding agency. Questioned items 
affecting only the disability program will be resolved by SSA in accord 
with paragraph (b)(2) of this section.
    (3) State appeal of audit determinations. The Office of Grant and 
Contract Financial Management will notify the State of its determination 
on questioned cross-cutting items. If the State disagrees with that 
determination, it may appeal in writing within 60 days of receiving the 
determination. State appeals of a cross-cutting issue as a result of an 
audit under the Single Audit Act of 1984 will be made to the Department 
of Health and Human Services' Departmental Appeals Board. The rules for 
hearings and appeals are provided in 45 CFR part 16.
    (b) Audits performed by the Secretary--(1) Generally. If the State 
does not perform an audit under the Single Audit Act of 1984 or the 
audit performed is not satisfactory for disability program purposes, the 
books of account and records in the State pertaining to the 
administration of the disability programs under the Act will be audited 
by the Department of Health and Human Services' Inspector General or 
audited or reviewed by SSA as appropriate. These audits or reviews will 
be conducted to determine whether the expenditures were made for the 
intended purposes and in amounts necessary for the proper and efficient 
administration of the disability programs. Audits or reviews will also 
be made to inspect the work and activities required by the regulations 
to ensure compliance with pertinent Federal statutes and regulations. 
The State will make every effort to act upon and resolve any items 
questioned in an audit or review.
    (2) Questioned items. Expenditures of State agencies will be audited 
or reviewed, as appropriate, on the basis of cost principles and written 
guidelines in effect at the time the expenditures were made or incurred. 
Both the State and the State agency will be informed and given a full 
explanation of any items questioned. They will be given reasonable time 
to explain items questioned. Any explanation furnished by the State or 
State agency will be given full consideration before a final 
determination is made on the audit or review report.

[[Page 812]]

    (3) State appeal of audit determinations. The appropriate Social 
Security Administration Regional Commissioner will notify the State of 
his or her determination on the audit or review report. If the State 
disagrees with that determination, the State may request reconsideration 
in writing within 60 days of the date of the Regional Commissioner's 
notice of the determination. The written request may be made, through 
the Associate Commissioner, Office of Disability, to the Commissioner of 
Social Security, Room 900, Altmeyer Building, 6401 Security Boulevard, 
Baltimore, MD 21235. The Commissioner will make a determination and 
notify the State of the decision in writing no later than 90 days from 
the date the Social Security Administration receives the State's appeal 
and all supporting documents. The decision by the Commissioner on other 
than monetary disallowances will be final and binding upon the State. 
The decision by the Commissioner on monetary disallowances will be final 
and binding upon the State unless the State appeals the decision in 
writing to the Department of Health and Human Services' Departmental 
Appeals Board within 30 days after receiving the Commissioner's 
decision. See Sec. 416.1083.

[56 FR 11022, Mar. 14, 1991]



Sec. 416.1028  Property.

    The State will have title to equipment purchased for disability 
program purposes. The State will be responsible for maintaining all 
property it acquires or which we furnish to it for performing the 
disability determination function. The State will identify the equipment 
by labeling and by inventory and will credit the SSA account with the 
fair market value of disposed property. In the event we assume the 
disability determination function from a State, ownership of all 
property and equipment acquired with SSA funds will be transferred to us 
effective on the date the State is notified that we are assuming the 
disability determination function or we are notified that the State is 
terminating the relationship.



Sec. 416.1029  Participation in research and demonstration projects.

    We will invite State participation in federally funded research and 
demonstration projects to assess the effectiveness of the disability 
program and to ascertain the effect of program policy changes. Where we 
determine that State participation is necessary for the project to be 
complete, for example, to provide national uniformity in a claims 
process, State participation is mandatory.



Sec. 416.1030  Coordination with other agencies.

    (a) The State will establish cooperative working relationships with 
other agencies concerned with serving the disabled and, insofar as 
practicable, use their services, facilities, and records to:
    (1) Assist the State in developing evidence and making 
determinations of disability; and
    (2) Insure that referral of disabled or blind persons for 
rehabilitation services will be carried out effectively.
    (b) The State may pay these agencies for the services, facilities, 
or records they provide. The State will include these costs in its 
estimates of anticipated costs and reports of actual expenditures.



Sec. 416.1031  Confidentiality of information and records.

    The State will comply with the confidentiality of information, 
including the security of systems, and records requirements described in 
20 CFR part 401 and pertinent written guidelines (see Sec. 416.1033).



Sec. 416.1032  Other Federal laws and regulations.

    The State will comply with the provisions of other Federal laws and 
regulations that directly affect its responsibilities in carrying out 
the disability determination function; for example, Treasury Department 
regulations on letters of credit (31 CFR part 205).



Sec. 416.1033  Policies and operating instructions.

    (a) We will provide the State agency with written guidelines 
necessary for it

[[Page 813]]

to carry out its responsibilities in performing the disability 
determination function.
    (b) The State agency making determinations of disability will comply 
with our written guidelines that are not designated as advisory or 
discretionary. (See Sec. 416.1002 for what we mean by written 
guidelines.)
    (c) A representative group of State agencies will be given an 
opportunity to participate in formulating disability program policies 
that have an effect on their role in carrying out the disability 
determination function. State agencies will also be given an opportunity 
to comment before changes are made in written guidelines unless delay in 
issuing a change may impair service to the public.

[46 FR 29211, May 29, 1981, as amended at 56 FR 11023, Mar. 14, 1991]

                          Performance Standards



Sec. 416.1040  General.

    The following sections provide the procedures and guidelines we use 
to determine whether the State agency is substantially complying with 
our regulations and other written guidelines, including meeting 
established national performance standards. We use performance standards 
to help assure effective and uniform administration of our disability 
program and to measure whether the performance of the disability 
determination function by each State agency is acceptable. Also, the 
standards are designed to improve overall State agency performance in 
the disability determination process and to ensure that benefits are 
made available to all eligible persons in an accurate and efficient 
manner. We measure the performance of a State agency in two areas--
processing time and quality of documentation and decisions on claims. 
State agency compliance is also judged by State agency adherence to 
other program requirements.

[56 FR 11023, Mar. 14, 1991]



Sec. 416.1041  Standards of performance.

    (a) General. The performance standards include both a target level 
of performance and a threshold level of performance for the State 
agency. The target level represents a level of performance that we and 
the States will work to attain in the future. The threshold level is the 
minimum acceptable level of performance. Performance below the threshold 
level will be the basis for the Secretary's taking from the State agency 
partial or complete responsibility for performing the disability 
determination function. Intermediate State agency goals are designed to 
help each State agency move from its current performance levels to the 
target levels.
    (b) The target level. The target level is the optimum level of 
performance. There are three targets--one for combined title II and 
title XVI initial performance accuracy, one for title II initial 
processing time, and one for title XVI initial processing time.
    (c) The threshold level. The threshold level is the minimum 
acceptable level of performance. There are three thresholds--one for 
combined title II and title XVI initial performance accuracy, one for 
title II initial processing time, and one for title XVI initial 
processing time.
    (d) Intermediate goals. Intermediate goals are levels of performance 
between the threshold levels and the target levels established by our 
appropriate Regional Commissioner after negotiation with each State 
agency. The intermediate goals are designed to help the State agencies 
reach the target levels. Failure to meet these goals is not a cause for 
considering the State agency to be substantially failing to comply with 
the performance standards. However, failure to meet the intermediate 
goals may result in consultation and an offer of optional performance 
support depending on the availability of our resources.

[46 FR 29211, May 29, 1981, as amended at 56 FR 11023, Mar. 14, 1991]



Sec. 416.1042  Processing time standards.

    (a) General. Title II processing time refers to the average number 
of days (including Saturdays, Sundays, and holidays) it takes a State 
agency to process an initial disability claim from the day the case 
folder is received in the State agency until the day it is released to 
us by the State agency. Title

[[Page 814]]

XVI processing time refers to the average number of days, including 
Saturdays, Sundays, and holidays, from the day of receipt of the initial 
disability claim in the State agency until systems input of a 
presumptive disability decision or the day the case folder is released 
to us by the State agency, whichever is earlier.
    (b) Target levels. The processing time target levels are:
    (1) 37 days for title II initial claims.
    (2) 43 days for title XVI initial claims.
    (c) Threshold levels. The processing time threshold levels are:
    (1) 49.5 days for title II initial claims.
    (2) 57.9 days for title XVI initial claims.

[46 FR 29211, May 29, 1981, as amended at 56 FR 11023, Mar. 14, 1991]



Sec. 416.1043  Performance accuracy standard.

    (a) General. Performance accuracy refers to the percentage of cases 
that do not have to be returned to State agencies for further 
development or correction of decisions based on evidence in the files 
and as such represents the reliability of State agency adjudication. The 
definition of performance accuracy includes the measurement of factors 
that have a potential for affecting a decision, as well as the 
correctness of the decision. For example, if a particular item of 
medical evidence should have been in the file but was not included, even 
though its inclusion does not change the result in the case, that is a 
performance error. Performance accuracy, therefore, is a higher standard 
than decisional accuracy. As a result, the percentage of correct 
decisions is significantly higher than what is reflected in the error 
rate established by SSA's quality assurance system.
    (b) Target level. The State agency initial performance accuracy 
target level for combined title II and title XVI cases is 97 percent 
with a corresponding decision accuracy rate of 99 percent.
    (c) Intermediate goals. These goals will be established annually by 
SSA's regional commissioner after negotiation with the State and should 
be used as stepping stones to progress towards our targeted level of 
performance.
    (d) Threshold levels. The State agency initial performance accuracy 
threshold level for combined title II and title XVI cases is 90.6 
percent.



Sec. 416.1044  How and when we determine whether the processing time standards are met.

    (a) How we determine processing times. For all initial title II 
cases, we calculate the mean number of days, including Saturdays, 
Sundays, and holidays, from the day the case folder is received in the 
State agency until the day it is released to us by the State agency. For 
initial title XVI cases, we calculate the mean number of days, including 
Saturdays, Sundays, and holidays, from the day the case folder is 
received in the State agency until the day there is systems input of a 
presumptive disability decision or the day the case folder is released 
to us by the State agency, whichever is earlier.
    (b) Frequency of review. Title II processing times and title XVI 
processing times are monitored separately on a quarterly basis. The 
determination as to whether or not the processing time thresholds have 
been met is made at the end of each quarter each year. Quarterly State-
by-State mean processing times are compared with the threshold levels 
for both title II and title XVI.

[46 FR 29211, May 29, 1981, as amended at 56 FR 11023, Mar. 14, 1991]



Sec. 416.1045  How and when we determine whether the performance accuracy standard is met.

    (a) How we determine performance accuracy. We determine a State 
agency's performance accuracy rate on the basis of decision and 
documentation errors identified in our review of the sample cases.
    (b) Frequency of review. Title II and title XVI initial performance 
accuracy are monitored together on a quarterly basis. The determinations 
as to whether the performance accuracy threshold has been met is made at 
the end of each quarter each year. Quarterly State-by-State combined 
initial performance accuracy rates are compared to the established 
threshold level.

[[Page 815]]



Sec. 416.1050  Action we will take if a State agency does not meet the standards.

    If a State agency does not meet two of the three established 
threshold levels (one of which must be performance accuracy) for two or 
more consecutive calendar quarters, we will notify the State agency in 
writing that it is not meeting the standards. Following our 
notification, we will provide the State agency appropriate performance 
support described in Secs. 416.1060, 416.1061 and 416.1062 for a period 
of up to 12 months.

[56 FR 11023, Mar. 14, 1991]

                   Performance Monitoring and Support



Sec. 416.1060  How we will monitor.

    We will regularly analyze State agency combined title II and title 
XVI initial performance accuracy rate, title II initial processing time, 
and title XVI initial processing time. Within budgeted resources, we 
will also routinely conduct fiscal and administrative management reviews 
and special onsite reviews. A fiscal and administrative management 
review is a fact-finding mission to review particular aspects of State 
agency operations. During these reviews we will also review the quality 
assurance function. This regular monitoring and review program will 
allow us to determine the progress each State is making and the type and 
extent of performance support we will provide to help the State progress 
toward threshold, intermediate, and/or target levels.

[56 FR 11023, Mar. 14, 1991]



Sec. 416.1061  When we will provide performance support.

    (a) Optional support. We may offer, or a State may request, 
performance support at any time that the regular monitoring and review 
process reveals that support could enhance performance. The State does 
not have to be below the initial performance accuracy rate of 90.6 
percent to receive performance support. Support will be offered, or 
granted upon request, based on available resources.
    (b) Mandatory support. (1) We will provide a State agency with 
performance support if regular monitoring and review reveal that two of 
three threshold levels (one of which must be performance accuracy) are 
not met for two consecutive calendar quarters.
    (2) We may also decide to provide a State agency with mandatory 
performance support if regular monitoring and review reveal that any one 
of the three threshold levels is not met for two consecutive calendar 
quarters. Support will be provided based on available resources.
    (3) The threshold levels are:
    (i) Combined title II and title XVI initial performance accuracy 
rate--90.6 percent,
    (ii) Title II initial processing time--49.5 days, and
    (iii) Title XVI initial processing time--57.9 days.

[56 FR 11023, Mar. 14, 1991]



Sec. 416.1062  What support we will provide.

    Performance support may include, but is not limited to, any or all 
of the following:
    (a) An onsite review of cases processed by the State agency 
emphasizing adherence to written guidelines.
    (b) A request that necessary administrative measures be implemented 
(e.g., filling staffing vacancies, using overtime, assisting with 
training activities, etc.).
    (c) Provisions for Federal personnel to perform onsite reviews, 
conduct training, or perform other functions needed to improve 
performance.
    (d) Provisions for fiscal aid to allow for overtime, temporary 
hiring of additional staff, etc., above the authorized budget.

[56 FR 11024, Mar. 14, 1991]

                           Substantial Failure



Sec. 416.1070  General.

    After a State agency falls below two of three established threshold 
levels, one being performance accuracy, for two consecutive quarters, 
and after the mandatory performance support period, we will give the 
State agency a 3-month adjustment period. During this 3-month period we 
will not require the State agency to meet the threshold

[[Page 816]]

levels. Following the adjustment period, if the State agency again falls 
below two of three threshold levels, one being performance accuracy, in 
two consecutive quarters during the next 12 months, we will notify the 
State that we propose to find that the State agency has substantially 
failed to comply with our standards and advise it that it may request a 
hearing on that issue. After giving the State notice and an opportunity 
for a hearing, if it is found that a State agency has substantially 
failed to make disability determinations consistent with the Act, our 
regulations, or other written guidelines, we will assume partial or 
complete responsibility for performing the disability determination 
function after we have complied with Secs. 416.1090 and 416.1092.

[56 FR 11024, Mar. 14, 1991]



Sec. 416.1071  Good cause for not following the Act, our regulations, or other written guidelines.

    If a State has good cause for not following the Act, our 
regulations, or other written guidelines, we will not find that the 
State agency has substantially failed to meet our standards. We will 
determine if good cause exists. Some of the factors relevant to good 
cause are:
    (a) Disasters such as fire, flood, or civil disorder, that--
    (1) Require the diversion of significant personnel normally assigned 
to the disability determination function, or
    (2) Destroyed or delayed access to significant records needed to 
make accurate disability determinations;
    (b) Strikes of State agency staff or other government or private 
personnel necessary to the performance of the disability determination 
function;
    (c) Sudden and unanticipated workload changes which result from 
changes in Federal law, regulations, or written guidelines, systems 
modification or systems malfunctions, or rapid, unpredictable caseload 
growth for a 6-month period or longer.

[56 FR 11024, Mar. 14, 1991]



Sec. 416.1075  Finding of substantial failure.

    A finding of substantial failure with respect to a State may not be 
made unless and until the State is afforded an opportunity for a 
hearing.

                          Hearings and Appeals



Sec. 416.1080  Notice of right to hearing on proposed finding of substantial failure.

    If, following the mandatory performance support period and the 3-
month adjustment period, a State agency again falls below two of three 
threshold levels (one being performance accuracy) in two consecutive 
quarters in the succeeding 12 months, we will notify the State in 
writing that we will find that the State agency has substantially failed 
to meet our standards unless the State submits a written request for a 
hearing with the Department of Health and Human Services' Departmental 
Appeals Board within 30 days after receiving the notice. The notice will 
identify the threshold levels that were not met by the State agency, the 
period during which the thresholds were not met, and the accuracy and 
processing time levels attained by the State agency during this period. 
If a hearing is not requested, the State agency will be found to have 
substantially failed to meet our standards, and we will implement our 
plans to assume the disability determination function.

[56 FR 11024, Mar. 14, 1991]



Sec. 416.1081  Disputes on matters other than substantial failure.

    Disputes concerning monetary disallowances will be resolved in 
proceedings before the Department of Health and Human Services, 
Departmental Appeals Board if the issue cannot be resolved between us 
and the State. Disputes other than monetary disallowances will be 
resolved through an appeal to the Commissioner of Social Security, who 
will make the final decision. (See Sec. 416.1027.)

[56 FR 11024, Mar. 14, 1991]

[[Page 817]]



Sec. 416.1082  Who conducts the hearings.

    If a hearing is required, it will be conducted by the Health and 
Human Services Departmental Grant Appeals Board (the Board).



Sec. 416.1083  Hearings and appeals process.

    The rules for hearings and appeals before the Board are provided in 
45 CFR part 16. A notice under Sec. 416.1080 of this subpart will be 
considered a ``final written decision'' for purposes of Board review.

             Assumption of Disability Determination Function



Sec. 416.1090  Assumption when we make a finding of substantial failure.

    (a) Notice to State. When we find that substantial failure exists, 
we will notify the State in writing that we will assume responsibility 
for performing the disability determination function from the State 
agency, whether the assumption will be partial or complete, and the date 
on which the assumption will be effective.
    (b) Effective date of assumption. The date of any partial or 
complete assumption of the disability determination function from a 
State agency may not be earlier than 180 days after our finding of 
substantial failure, and not before compliance with the requirements of 
Sec. 416.1092.



Sec. 416.1091  Assumption when State no longer wishes to perform the disability determination function.

    (a) Notice to the Secretary. If a State no longer wishes to perform 
the disability determination function, it will notify us in writing. The 
notice must be from an official authorized to act for the State for this 
purpose. The State will provide an opinion from the State's Attorney 
General verifying the authority of the official who gave the notice.
    (b) Effective date of assumption. The State agency will continue to 
perform whatever activities of the disability determination function it 
is performing at the time the notice referred to in paragraph (a) of 
this section is given for not less than 180 days or, if later, until we 
have complied with the requirements of Sec. 416.1092. For example, if 
the State is not making disability determinations (because we previously 
assumed responsibility for making them) but is performing other 
activities related to the disability determination function at the time 
it gives notice, the State will continue to do these activities until 
the requirements of this paragraph are met. Thereafter, we will assume 
complete responsibility for performing the disability determination 
function.



Sec. 416.1092  Protection of State employees.

    (a) Hiring preference. We will develop and initiate procedures to 
implement a plan to partially or completely assume the disability 
determination function from the State agency under Sec. 416.1090 or 
Sec. 416.1091, as appropriate. Except for the State agency's 
administrator, deputy administrator, or assistant administrator (or his 
equivalent), we will give employees of the State agency who are capable 
of performing duties in the disability determination function preference 
over any other persons in filling positions with us for which they are 
qualified. We may also give a preference in hiring to the State agency's 
administrator, deputy administrator, or assistant administrator (or his 
equivalent). We will establish a system for determining the hiring 
priority among the affected State agency employees in those instances 
where we are not hiring all of them.
    (b) Determination by Secretary of Labor. We will not assume 
responsibility for performing the disability determination function from 
a State until the Secretary of Labor determines that the State has made 
fair and equitable arrangements under applicable Federal, State and 
local law to protect the interests of employees who will be displaced 
from their employment because of the assumption and who we will not 
hire.



Sec. 416.1093  Limitation on State expenditures after notice.

    The State agency may not, after it receives the notice referred to 
in Sec. 416.1090, or gives the notice referred to in Sec. 416.1091, make 
any new commitments to spend funds allocated to it for

[[Page 818]]

performing the disability determination function without the approval of 
the appropriate SSA regional commissioner. The State will make every 
effort to close out as soon as possible all existing commitments that 
relate to performing the disability determination function.



Sec. 416.1094  Final accounting by the State.

    The State will submit its final claims to us as soon as possible, 
but in no event later than 1 year from the effective date of our 
assumption of the disability determination function unless we grant an 
extension of time. When the final claim(s) is submitted, a final 
accounting will be made by the State of any funds paid to the State 
under Sec. 416.1026 which have not been spent or committed prior to the 
effective date of our assumption of the disability determination 
function. Disputes concerning final accounting issues which cannot be 
resolved between the State and us will be resolved in proceedings before 
the Grant Appeals Board as described in 45 CFR part 416.



                            Subpart K--Income

    Authority:  Secs. 702(a)(5), 1602, 1611, 1612, 1613, 1614(f), 1621, 
and 1631 of the Social Security Act (42 U.S.C. 902(a)(5), 1381a, 1382, 
1382a, 1382b, 1382c(f), 1382j, and 1383); sec. 211, Pub. L. 93-66, 87 
Stat. 154 (42 U.S.C. 1382 note).

    Source:  45 FR 65547, Oct. 3, 1980, unless otherwise noted.

                                 General



Sec. 416.1100  Income and SSI eligibility.

    You are eligible for supplemental security income (SSI) benefits if 
you are an aged, blind, or disabled person who meets the requirements 
described in subpart B and who has limited income and resources. Thus, 
the amount of income you have is a major factor in deciding whether you 
are eligible for SSI benefits and the amount of your benefit. We count 
income on a monthly basis. Generally, the more income you have the less 
your benefit will be. If you have too much income, you are not eligible 
for a benefit. However, we do not count all of your income to determine 
your eligibility and benefit amount. We explain in the following 
sections how we treat your income for the SSI program. These rules apply 
to the Federal benefit and to any optional State supplement paid by us 
on behalf of a State (Sec. 416.2025) except as noted in subpart T and in 
the Federal-State agreements with individual States. While this subpart 
explains how we count income, subpart D of these regulations explains 
how we determine your benefits, including the provision that we 
generally use countable income in a prior month to determine how much 
your benefit amount will be for a month in which you are eligible 
(Sec. 416.420).

[50 FR 48573, Nov. 26, 1985]



Sec. 416.1101  Definition of terms.

    As used in this subpart--
    Calendar quarter means a period of three full calendar months 
beginning with January, April, July, or October.
    Child means someone who is not married, is not the head of a 
household, and is either under age 18 or is under age 22 and a student. 
(See Sec. 416.1856)
    Couple means an eligible individual and his or her eligible spouse.
    Current market value means the price of an item on the open market 
in your locality.
    Federal benefit rate means the monthly payment rate for an eligible 
individual or couple. It is the figure from which we substract countable 
income to find out how much your Federal SSI benefit should be. The 
Federal benefit rate does not include the rate for any State supplement 
paid by us on behalf of a State.
    Institution means an establishment which makes available some 
treatment or services beyond food and shelter to four or more persons 
who are not related to the proprietor. (See Sec. 416.201)
    Spouse means someone who lives with another person as that person's 
husband or wife. (See Sec. 416.1806)
    We, Us, or Our means the Social Security Administration.
    You or Your means a person who is applying for, or already 
receiving, SSI benefits.

[45 FR 65547, Oct. 3, 1980, as amended at 50 FR 48573, Nov. 26, 1985; 51 
FR 10616, Mar. 28, 1986; 60 FR 16375, Mar. 30, 1995]

[[Page 819]]



Sec. 416.1102  What is income.

    Income is anything you receive in cash or in kind that you can use 
to meet your needs for food, clothing, and shelter. Sometimes income 
also includes more or less than you actually receive (see Sec. 416.1110 
and Sec. 416.1123(b)). In-kind income is not cash, but is actually food, 
clothing, or shelter, or something you can use to get one of these.

[56 FR 3212, Jan. 29, 1991]



Sec. 416.1103  What is not income.

    Some things you receive are not income because you cannot use them 
as food, clothing, or shelter, or use them to obtain food, clothing, or 
shelter. In addition, what you receive from the sale or exchange of your 
own property is not income; it remains a resource. The following are 
some items that are not income:
    (a) Medical care and services. Medical care and services are not 
income if they are any of the following:
    (1) Given to you free of charge or paid for directly to the provider 
by someone else;
    (2) Room and board you receive during a medical confinement;
    (3) Assistance provided in cash or in kind (including food, 
clothing, or shelter) under a Federal, State, or local government 
program, whose purpose is to provide medical care or services (including 
vocational rehabilitation);
    (4) In-kind assistance (except food, clothing, or shelter) provided 
under a nongovernmental program whose purpose is to provide medical care 
or medical services;
    (5) Cash provided by any nongovernmental medical care or medical 
services program or under a health insurance policy (except cash to 
cover food, clothing, or shelter) if the cash is either:
    (i) Repayment for program-approved services you have already paid 
for; or
    (ii) A payment restricted to the future purchase of a program-
approved service.
    Example:  If you have paid for prescription drugs and get the money 
back from your health insurance, the money is not income.
    (6) Direct payment of your medical insurance premiums by anyone on 
your behalf.
    (7) Payments from the Department of Veterans Affairs resulting from 
unusual medical expenses.
    (b) Social services. Social services are not income if they are any 
of the following:
    (1) Assistance provided in cash or in kind (but not received in 
return for a service you perform) under any Federal, State, or local 
government program whose purpose is to provide social services including 
vocational rehabilitation (Example: Cash given you by the Department of 
Veterans Affairs to purchase aid and attendance);
    (2) In-kind assistance (except food, clothing, or shelter) provided 
under a nongovernmental program whose purpose is to provide social 
services; or
    (3) Cash provided by a nongovernmental social services program 
(except cash to cover food, clothing, or shelter) if the cash is either:
    (i) Repayment for program-approved services you already have paid 
for; or
    (ii) A payment restricted to the future purchase of a program-
approved service.
    Example:  If you are unable to do your own household chores and a 
private social services agency provides you with cash to pay a homemaker 
the cash is not income.
    (c) Receipts from the sale, exchange, or replacement of a resource. 
Receipts from the sale, exchange, or replacement of a resource are not 
income but are resources that have changed their form. This includes any 
cash or in-kind item that is provided to replace or repair a resource 
(see subpart L) that has been lost, damaged, or stolen. Sections 
416.1150 and 416.1151 discuss treatment of receipts to replace or repair 
a resource following a major disaster or following some other event 
causing damage or loss of a resource.
    Example:  If you sell your automobile, the money you receive is not 
income; it is another form of a resource.
    (d) Income tax refunds. Any amount refunded on income taxes you have 
already paid is not income.
    (e) Payments by credit life or credit disability insurance. Payments 
made under a credit life or credit disability insurance policy on your 
behalf are not income.

[[Page 820]]

    Example:  If a credit disability policy pays off the mortgage on 
your home after you become disabled in an accident, we do not consider 
either the payment or your increased equity in the home to be income.
    (f) Proceeds of a loan. Money you borrow or money you receive as 
repayment of a loan is not income. However, interest you receive on 
money you have lent is income. Buying on credit is treated as though you 
were borrowing money and what you purchase this way is not income.
    (g) Bills paid for you. Payment of your bills by someone else 
directly to the supplier is not income. However, we count the value of 
anything you receive because of the payment if it is in-kind income as 
defined in Sec. 416.1102.
    Examples:  If your daughter uses her own money to pay the grocer to 
provide you with food, the payment itself is not your income because you 
do not receive it. However, because of your daughter's payment, the 
grocer provides you with food; the food is in-kind income to you. 
Similarly, if you buy clothing on credit and your son later pays the 
bill, the payment to the store is not income to you but the clothing is 
in-kind income to you. In this example, if your son pays for the 
clothing in a quarter after the quarter of purchase, we will count the 
in-kind income to you in the quarter in which he pays the bill. On the 
other hand, if your brother pays a lawn service to mow your grass, the 
payment is not income to you because the mowing cannot be used to meet 
your needs for food, clothing, or shelter. Therefore, it is not in-kind 
income as defined in Sec. 416.1102.
    (h) Replacement of income you have already received. If income is 
lost, destroyed, or stolen and you receive a replacement, the 
replacement is not income.
    Example:  If your paycheck is stolen and you get a replacement 
check, we count the first check as income. The replacement check is not 
income.
    (i) Weatherization assistance. Weatherization assistance (Examples: 
Insulation, storm doors and windows) is not income.
    (j) Receipt of certain noncash items. Any item you receive (except 
shelter as defined in Sec. 416.1130, food, or clothing) which would be 
an excluded nonliquid resource (as described in subpart L of this part) 
if you kept it, is not income.
    Example 1:  A community takes up a collection to buy you a specially 
equipped van which is your only vehicle. The value of this gift is not 
income because the van does not provide you with food, clothing, or 
shelter and will become an excluded nonliquid resource under 
Sec. 416.1218 in the month following the month of receipt.
    Example 2:  You inherit a house which is your principal place of 
residence. The value of this inheritance is income because the house 
provides you with shelter and shelter is income. However, we value the 
house under the rule in Sec. 416.1140.

[45 FR 65547, Oct. 3, 1980, as amended at 49 FR 48038, Dec. 10, 1984; 57 
FR 53850, Nov. 13, 1992; 59 FR 33907, July 1, 1994]



Sec. 416.1104  Income we count.

    We have described generally what income is and is not for SSI 
purposes (Sec. 416.1103). There are different types of income, earned 
and unearned, and we have rules for counting each. The earned income 
rules are described in Secs. 416.1110 through 416.1112 and the unearned 
income rules are described in Secs. 416.1120 through 416.1124. One type 
of unearned income is in-kind support and maintenance (food, clothing, 
or shelter). The way we value it depends on your living arrangement. 
These rules are described in Secs. 416.1130 through 416.1146. In some 
situations we must consider the income of certain people with whom you 
live as available to you and part of your income. These rules are 
described in Secs. 416.1160 through 416.1169. We use all of these rules 
to determine the amount of your countable income--the amount that is 
left after we subtract what is not income or is not counted.

                              Earned Income



Sec. 416.1110  What is earned income.

    Earned income may be in cash or in kind. We may include more of your 
earned income than you actually receive. We include more than you 
actually receive if amounts are withheld from earned income because of a 
garnishment or to pay a debt or other legal obligation, or to make any 
other payments. Earned income consists of the following types of 
payments:
    (a) Wages. Wages are what you receive (before any deductions) for 
working as someone else's employee. Wages are the same for SSI purposes 
as for the earnings test in the social security retirement program. (See 
Sec. 404.429(c) of this chapter.) Wages include salaries, commissions, 
bonuses, severance pay,

[[Page 821]]

and any other special payments received because of your employment. They 
may also include the value of food, clothing, or shelter, or other items 
provided instead of cash. We refer to this as in-kind earned income. 
However, if you are a domestic or agricultural worker, the law requires 
us to treat your in-kind pay as unearned income.
    (b) Net earnings from self-employment. Net earnings from self-
employment are your gross income from any trade or business that you 
operate, less allowable deductions for that trade or business. Net 
earnings also include your share of profit or loss in any partnership to 
which you belong. These are the same net earnings that we would count 
under the social security retirement insurance program and that you 
would report on your Federal income tax return. (See Sec. 404.1080 of 
this chapter.)
    (c) Refunds of Federal income taxes and advance payments by 
employers made in accordance with the earned income credit provisions of 
the Internal Revenue Code. Refunds on account of earned income credits 
are payments made to you under the provisions of section 43 of the 
Internal Revenue Code of 1954, as amended. These refunds may be greater 
than taxes you have paid. You may receive earned income tax credit 
payments along with any other Federal income tax refund you receive 
because of overpayment of your income tax, (Federal income tax refunds 
made on the basis of taxes you have already paid are not income to you 
as stated in Sec. 416.1103(d).) Advance payments of earned income tax 
credits are made by your employer under the provisions of section 3507 
of the same code. You can receive earned income tax credit payments only 
if you meet certain requirements of family composition and income 
limits.
    (d) Payments for services performed in a sheltered workshop or work 
activities center. Payments for services performed in a sheltered 
workshop or work activities center are what you receive for 
participating in a program designed to help you become self-supporting.
    (e) Certain royalties and honoraria. Royalties that are earned 
income are payments to an individual in connection with any publication 
of the work of the individual. (See Sec. 416.1110(b) if you receive a 
royalty as part of your trade or business. See Sec. 416.1121(c) if you 
receive another type of royalty.) Honoraria that are earned income are 
those portions of payments, such as an honorary payment, reward, or 
donation, received in consideration of services rendered for which no 
payment can be enforced by law. (See Sec. 416.1120 if you receive 
another type of honorarium.)

[45 FR 65547, Oct. 3, 1980, as amended at 48 FR 23179, May 24, 1983; 50 
FR 48574, Nov. 26, 1985; 56 FR 3212, Jan. 29, 1991; 59 FR 43471, Aug. 
24, 1994]



Sec. 416.1111  How we count earned income.

    (a) Wages. We count wages at the earliest of the following points: 
when you receive them or when they are credited to your account or set 
aside for your use. We determine wages for each month.
    (b) Net earnings from self-employment. We count net earnings from 
self-employment on a taxable year basis. However, we divide the total of 
these earnings equally among the months in the taxable year to get your 
earnings for each month. For example, if your net earnings for a taxable 
year are $2,400, we consider that you received $200 in each month. If 
you have net losses from self-employment, we divide them over the 
taxable year in the same way, and we deduct them only from your other 
earned income.
    (c) Payments for services in a sheltered workshop or activities 
center. We count payments you receive for services performed in a 
sheltered workshop or work activities center when you receive them or 
when they are set aside for your use. We determine the amount of the 
payments for each calendar quarter.
    (d) In-kind earned income. We use the current market value of in-
kind earned income for SSI purposes. (See Sec. 416.1101 for a definition 
of current market value.) If you receive an item that is not fully paid 
for and are responsible for the unpaid balance, only the paid-up value 
is income to you. (See the example in Sec. 416.1123(c)).
    (e) Royalties and honoraria. We count payments of royalties to you 
in connection with any publication of your

[[Page 822]]

work, and honoraria, to the extent received for services rendered, at 
the earliest of the following points: when you receive them, when they 
are credited to your account, or when they are set aside for your use. 
(See Sec. 416.1111(b) if you receive royalties as part of your trade or 
business.)

[45 FR 65547, Oct. 3, 1980, as amended at 48 FR 23179, May 24, 1983; 48 
FR 30357, July 1, 1983; 50 FR 48574, Nov. 26, 1985; 58 FR 63889, Dec. 3, 
1993; 59 FR 43471, Aug. 24, 1994]



Sec. 416.1112  Earned income we do not count.

    (a) General. While we must know the source and amount of all of your 
earned income for SSI, we do not count all of it to determine your 
eligibility and benefit amount. We first exclude income as authorized by 
other Federal laws (see paragraph (b) of this section). Then we apply 
the other exclusions in the order listed in paragraph (c) of this 
section to the rest of your income in the month. We never reduce your 
earned income below zero or apply any unused earned income exclusion to 
unearned income.
    (b) Other Federal laws. Some Federal laws other than the Social 
Security Act provide that we cannot count some of your earned income for 
SSI purposes. We list the laws and exclusions in the appendix to this 
subpart which we update periodically.
    (c) Other earned income we do not count. We do not count as earned 
income--
    (1) Any refund of Federal income taxes you receive under section 32 
of the Internal Revenue Code (relating to earned income tax credit) and 
any payment you receive from an employer under section 3507 of the 
Internal Revenue Code (relating to advance payment of earned income tax 
credit);
    (2) Up to $10 of earned income in a month if it is infrequent or 
irregular; that is, if you receive it only once in a calendar quarter 
from a single source or if you cannot reasonably expect it. If the total 
amount of your infrequent or irregular earned income for a month exceeds 
$10, we cannot use this exclusion;
    (3) Up to $400 per month but not more than $1,620 in a calendar 
year, if you are a blind or disabled child who is a student regularly 
attending school as described in Sec. 416.1861;
    (4) Any portion of the $20 monthly exclusion in Sec. 416.1124(c)(10) 
which has not been excluded from your unearned income in that same 
month;
    (5) $65 of earned income in a month;
    (6) Earned income you use to pay impairment-related work expenses 
described in Sec. 416.976, if you are disabled (but not blind) and under 
age 65 or you are disabled (but not blind) and received SSI as a 
disabled individual (or received disability payments under a former 
State plan) for the month before you reached age 65.
    (i) For periods prior to December 1, 1990, you must be able, 
however, to establish your initial eligibility for Federal benefits 
without the use of the impairment-related work expense exclusion. Once 
you establish your initial eligibility without the use of the 
impairment-related work expense exclusion, the exclusion applies for 
determining your eligibility for all subsequent consecutive months for 
which you are eligible for regular SSI benefits, federally administered 
optional State supplementary payments, special SSI cash benefits or 
special SSI eligibility status. If, in a subsequent month, you are not 
eligible for any of these benefits, you cannot reestablish your 
eligibility for Federal SSI benefits or federally administered optional 
State supplementary payments before December 1, 1990, using the 
impairment-related work expense exclusion.
    (ii) For periods after November 30, 1990, you may also use the 
impairment-related work expense exclusion to establish initial 
eligibility and reeligibility following a month in which you were not 
eligible for regular SSI benefits, a federally administered optional 
State supplementary payment, special SSI cash benefits or special SSI 
eligibility status.
    (7) One-half of remaining earned income in a month;
    (8) Earned income used to meet any expenses reasonably attributable 
to the earning of the income if you are blind and under age 65 or if you 
receive SSI as a blind person for the month before you reach age 65. (We 
consider that you ``reach'' a certain age on the day before that 
particular birthday.); and

[[Page 823]]

    (9) Any earned income you receive and use to fulfill an approved 
plan to achieve self-support if you are blind or disabled and under age 
65 or blind or disabled and received SSI as a blind or disabled person 
for the month before you reached age 65. See Secs. 416.1180 through 
416.1182 for an explanation of plans to achieve self-support and for the 
rules on when this exclusion applies.

[45 FR 65547, Oct. 3, 1980, as amended at 48 FR 21943, May 16, 1983; 50 
FR 48574, Nov. 26, 1985; 58 FR 63889, Dec. 3, 1993; 59 FR 41405, Aug. 
12, 1994]

                             Unearned Income



Sec. 416.1120  What is unearned income.

    Unearned income is all income that is not earned income. We describe 
some of the types of unearned income in Sec. 416.1121. We consider all 
of these items as unearned income, whether you receive them in cash or 
in kind.



Sec. 416.1121  Types of unearned income.

    Some types of unearned income are--
    (a) Annuities, pensions, and other periodic payments. This unearned 
income is usually related to prior work or service. It includes, for 
example, private pensions, social security benefits, disability 
benefits, veterans benefits, worker's compensation, railroad retirement 
annuities and unemployment insurance benefits.
    (b) Alimony and support payments. For SSI purposes, alimony and 
support payments are cash or in-kind contributions to meet some or all 
of a person's needs for food, clothing, or shelter. Support payments may 
be made voluntarily or because of a court order. Alimony (sometimes 
called maintenance) is an allowance made by a court from the funds of 
one spouse to the other spouse in connection with a suit for separation 
or divorce.
    (c) Dividends, interest, and certain royalties. Dividends and 
interest are returns on capital investments, such as stocks, bonds, or 
savings accounts. Royalties are compensation paid to the owner for the 
use of property, usually copyrighted material or natural resources such 
as mines, oil wells, or timber tracts. Royalty compensation may be 
expressed as a percentage of receipts from using the property or as an 
amount per unit produced. (See Sec. 416.1110(b) if you receive royalties 
as part of your trade or business and Sec. 416.1110(e) if you receive 
royalties in connection with the publication of your work.)
    (d) Rents. Rents are payments you receive for the use of real or 
personal property such as land, housing, or machinery. We deduct from 
rental payments your ordinary and necessary expenses in the same taxable 
year. These include only those expenses necessary for the production or 
collection of the rental income and they must be deducted when paid, not 
when they are incurred. Some examples of deductible expenses are 
interest on debts, State and local taxes on real and personal property 
and on motor fuels, general sales taxes, and expenses of managing or 
maintaining the property. (Sections 163, 164, and 212 of the Internal 
Revenue Code of 1954 and related regulations explain this in more 
detail.) We do not consider depreciation or depletion of property a 
deductible expense. (See Sec. 416.1110(b) for rules on rental income 
that is earned from self-employment. For example, you may be in the 
business of renting properties.)
    (e) Death benefits. We count payments you get which were occasioned 
by the death of another person except for the amount of such payments 
that you spend on the deceased person's last illness and burial 
expenses. Last illness and burial expenses include related hospital and 
medical expenses, funeral, burial plot and interment expenses, and other 
related costs.
    Example:  If you receive $2,000 from your uncle's life insurance 
policy and you spend $900 on his last illness and burial expenses, the 
balance, $1,100, is unearned income. If you spend the entire $2,000 for 
the last illness and burial, there is no unearned income.
    (f) Prizes and awards. A prize is generally something you win in a 
contest, lottery or game of chance. An award is usually something you 
receive as the result of a decision by a court, board of arbitration, or 
the like.
    (g) Gifts and inheritances. A gift is something you receive which is 
not repayment to you for goods or services you provided and which is not 
given to you because of a legal obligation on the

[[Page 824]]

giver's part. An inheritance is something that comes to you as a result 
of someone's death. It can be in cash or in kind, including any right in 
real or personal property. Gifts and inheritances occasioned by the 
death of another person, to the extent that they are used to pay the 
expenses of the deceased's last illness and burial, as defined in 
paragraph (e) of this section, are not considered income.
    (h) Support and maintenance in kind. This is food, clothing, or 
shelter furnished to you. Our rules for valuing this income depend on 
your living arrangement. We use one rule if you are living in the 
household of a person who provides you with both food and shelter. We 
use different rules for other situations where you receive food, 
clothing, or shelter. We discuss all of the rules in Secs. 416.1130 
through 416.1147.

[45 FR 65547, Oct. 3, 1980, as amended at 56 FR 36000, July 30, 1991; 59 
FR 43471, Aug. 24, 1994]



Sec. 416.1123  How we count unearned income.

    (a) When we count unearned income. We count unearned income at the 
earliest of the following points: When you receive it or when it is 
credited to your account or set aside for your use. We determine your 
unearned income for each month. We describe an exception to the rule on 
how we count unearned income in paragraph (d) of this section.
    (b) Amount considered as income. We may include more or less of your 
unearned income than you actually receive.
    (1) We include more than you actually receive where another benefit 
payment (such as a social security insurance benefit) (see 
Sec. 416.1121) has been reduced to recover a previous overpayment. You 
are repaying a legal obligation through the withholding of portions of 
your benefit amount, and the amount of the debt reduction is also part 
of your unearned income. Exception: We do not include more than you 
actually receive if you received both SSI benefits and the other benefit 
at the time the overpayment of the other benefit occurred and the 
overpaid amount was included in figuring your SSI benefit at that time.
    Example:  Joe, an SSI beneficiary, is also entitled to social 
security insurance benefits in the amount of $200 per month. However, 
because of a prior overpayment of his social security insurance 
benefits, $20 per month is being withheld to recover the overpayment. In 
figuring the amount of his SSI benefits, the full monthly social 
security insurance benefit of $200 is included in Joe's unearned income. 
However, if Joe was receiving both benefits when the overpayment of the 
social security insurance benefit occurred and we then included the 
overpaid amount as income, we will compute his SSI benefit on the basis 
of receiving $180 as a social security insurance benefit. This is 
because we recognize that we computed his SSI benefit on the basis of 
the higher amount when he was overpaid.
    (2) We also include more than you actually receive if amounts are 
withheld from unearned income because of a garnishment, or to pay a debt 
or other legal obligaton, or to make any other payment such as payment 
of your Medicare premiums.
    (3) We include less than you actually receive if part of the payment 
is for an expense you had in getting the payment. For example, if you 
are paid for damages you receive in an accident, we subtract from the 
amount of the payment your medical, legal, or other expenses connected 
with the accident. If you receive a retroactive check from a benefit 
program other than SSI, legal fees connected with the claim are 
subtracted. We do not subtract from any taxable unearned income the part 
you have to use to pay personal income taxes. The payment of taxes is 
not an expense you have in getting income.
    (4) In certain situations, we may consider someone else's income to 
be available to you, whether or not it actually is. (For the rules on 
this process, called deeming, see Secs. 416.1160 through 416.1169.)
    (c) In-kind income. We use the current market value (defined in 
Sec. 416.1101) of in-kind unearned income to determine its value for SSI 
purposes. We describe some exceptions to this rule in Secs. 416.1131 
through 416.1147. If you receive an item that is not fully paid for and 
are responsible for the balance, only the paid-up value is income to 
you.
    Example:  You are given a $1500 automobile but must pay the $1000 
due on it. You are receiving income of $500.
    (d) Retroactive monthly social security benefits. We count 
retroactive monthly

[[Page 825]]

social security benefits according to the rule in paragraph (d)(1) of 
this section, unless the exception in paragraph (d)(2) of this section 
applies:
    (1) Periods for which SSI payments have been made. When you file an 
application for social security benefits and retroactive monthly social 
security benefits are payable on that application for a period for which 
you also received SSI payments (including federally-administered State 
supplementary payments), we count your retroactive monthly social 
security benefits as unearned income received in that period. Rather 
than reducing your SSI payments in months prior to your receipt of a 
retroactive monthly social security benefit, we will reduce the 
retroactive social security benefits by an amount equal to the amount of 
SSI payments (including federally-administered State supplementary 
payments) that we would not have paid to you if your social security 
benefits had been paid when regularly due rather than retroactively (see 
Sec. 404.408b(b)). If a balance is due you from your retroactive social 
security benefits after this reduction, for SSI purposes we will not 
count the balance as unearned income in a subsequent month in which you 
receive it. This is because your social security benefits were used to 
determine the amount of the reduction. This exception to the unearned 
income counting rule does not apply to any monthly social security 
benefits for a period for which you did not receive SSI.
    (2) Social security disability benefits where drug addiction or 
alcoholism is a contributing factor material to the determination of 
disability. If your retroactive social security benefits must be paid in 
installments because of the limitations on paying lump sum retroactive 
benefits to disabled recipients whose drug addiction or alcoholism is a 
contributing factor material to the determination of disability as 
described in Sec. 404.480, we will count the total of such retroactive 
social security benefits as unearned income in the first month such 
installments are paid, except to the extent the rule in paragraph (d)(1) 
of this section would provide that such benefits not be counted.
    (e) Certain veterans benefits. (1) If you receive a veterans benefit 
that includes an amount paid to you because of a dependent, we do not 
count as your unearned income the amount paid to you because of the 
dependent.
    (2) If you are a dependent of an individual who receives a veterans 
benefit and a portion of the benefit is attributable to you as a 
dependent, we count the amount attributable to you as your unearned cash 
income if--
    (i) You reside with the individual who receives the veterans 
benefit, or
    (ii) You receive your own separate payment from the Department of 
Veterans Affairs.

(Reporting and recordkeeping requirements in paragraph (b) have been 
approved by the Office of Management and Budget under control number 
0960-0128)


[45 FR 65547, Oct. 3, 1980, as amended at 47 FR 4988, Feb. 3, 1982; 47 
FR 13794, Apr. 1, 1982; 50 FR 48574, Nov. 26, 1985; 55 FR 20599, May 18, 
1990; 56 FR 3212, Jan. 29, 1991; 59 FR 59364, Nov. 17, 1994; 60 FR 8152, 
Feb. 10, 1995]



Sec. 416.1124  Unearned income we do not count.

    (a) General. While we must know the source and amount of all of your 
unearned income for SSI, we do not count all of it to determine your 
eligibility and benefit amount. We first exclude income as authorized by 
other Federal laws (see paragraph (b) of this section). Then we apply 
the other exclusions in the order listed in paragraph (c) of this 
section to the rest of your unearned income in the month. We never 
reduce your unearned income below zero or apply any unused unearned 
income exclusion to earned income except for the $20 general exclusion 
described in paragraph (c)(12) of this section.
    (b) Other Federal laws. Some Federal laws other than the Social 
Security Act provide that we cannot count some of your unearned income 
for SSI purposes. We list the laws and the exclusions in the appendix to 
this subpart which we update periodically.
    (c) Other unearned income we do not count. We do not count as 
unearned income--
    (1) Any public agency's refund of taxes on real property or food;
    (2) Assistance based on need which is wholly funded by a State or 
one of its political subdivisions. (For purposes of this rule, an Indian 
tribe is considered

[[Page 826]]

a political subdivision of a State.) Assistance is based on need when it 
is provided under a program which uses the amount of your income as one 
factor to determine your eligibility. Assistance based on need includes 
State supplementation of Federal SSI benefits as defined in subpart T of 
this part but does not include payments under a Federal/State grant 
program such as Aid to Families with Dependent Children under title IV-A 
of the Social Security Act;
    (3) Any portion of a grant, scholarship, or fellowship used for 
paying tuition, fees, or other necessary educational expenses. However, 
we do count any portion set aside or actually used for food, clothing, 
or shelter;
    (4) Food which you or your spouse raise if it is consumed by you or 
your household;
    (5) Assistance received under the Disaster Relief and Emergency 
Assistance Act and assistance provided under any Federal statute because 
of a catastrophe which the President of the United States declares to be 
a major disaster. See Sec. 416.1150 for a more detailed discussion of 
this assistance, particularly the treatment of in-kind support and 
maintenance received as the result of a major disaster;
    (6) Up to $20 of unearned income in a month if it is infrequent or 
irregular; that is, if you receive a type of income listed in 
Sec. 416.1121 only once during a calendar quarter from a single source 
or if you cannot reasonably expect it. If the total amount of infrequent 
or irregular unearned income in a month exceeds $20, we cannot use this 
exclusion;
    (7) Alaska Longevity Bonus payments made to an individual who is a 
resident of Alaska and who, prior to October 1, 1985: met the 25-year 
residency requirement for receipt of such payments in effect prior to 
January 1, 1983; and was eligible for SSI;
    (8) Payments for providing foster care to an ineligible child who 
was placed in your home by a public or private nonprofit child placement 
or child care agency;
    (9) Any interest earned on excluded burial funds and any 
appreciation in the value of an excluded burial arrangement which are 
left to accumulate and become a part of the separate burial fund. (See 
Sec. 416.1231 for an explanation of the exclusion of burial assets.) 
This exclusion from income applies to interest earned on burial funds or 
appreciation in the value of excluded burial arrangements which occur 
beginning November 1, 1982, or the date you first become eligible for 
SSI benefits, if later;
    (10) Certain support and maintenance assistance as described in 
Sec. 416.1157;
    (11) One-third of support payments made to or for you by an absent 
parent if you are a child;
    (12) The first $20 of any unearned income in a month other than 
income in the form of in-kind support and maintenance received in the 
household of another (see Sec. 416.1131) and income based on need. 
Income based on need is a benefit that uses financial need as measured 
by your income as a factor to determine your eligibility. The $20 
exclusion does not apply to a benefit based on need that is totally or 
partially funded by the Federal government or by a nongovernmental 
agency. However, assistance which is based on need and funded wholly by 
a State or one of its political subdivisions is excluded totally from 
income as described in Sec. 416.1124(c)(2). If you have less than $20 of 
unearned income in a month and you have earned income in that month, we 
will use the rest of the $20 exclusion to reduce the amount of your 
countable earned income;
    (13) Any unearned income you receive and use to fulfill an approved 
plan to achieve self-support if you are blind or disabled and under age 
65 or blind or disabled and received SSI as a blind or disabled person 
for the month before you reached age 65. See Secs. 416.1180 through 
416.1182 for an explanation of plans to achieve self-support and for the 
rules on when this exclusion applies;
    (14) The value of any assistance paid with respect to a dwelling 
unit under--
    (i) The United States Housing Act of 1937;
    (ii) The National Housing Act;
    (iii) Section 101 of the Housing and Urban Development Act of 1965;
    (iv) Title V of the Housing Act of 1949; or

[[Page 827]]

    (v) Section 202(h) of the Housing Act of 1959;
    (15) Any interest accrued on and left to accumulate as part of the 
value of an excluded burial space purchase agreement. This exclusion 
from income applies to interest accrued on or after April 1, 1990;
    (16) The value of any commercial transportation ticket, for travel 
by you or your spouse among the 50 States, the District of Columbia, the 
Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, 
and the Northern Mariana Islands, which is received as a gift by you or 
your spouse and is not converted to cash. If such a ticket is converted 
to cash, the cash you receive is income in the month you receive the 
cash;
    (17) Payments received by you from a fund established by a State to 
aid victims of crime;
    (18) Relocation assistance provided you by a State or local 
government that is comparable to assistance provided under title II of 
the Uniform Relocation Assistance and Real Property Acquisition Policies 
Act of 1970 that is subject to the treatment required by section 216 of 
that Act;
    (19) Hostile fire pay received from one of the uniformed services 
pursuant to 37 U.S.C. 310; and
    (20) Interest or other earnings on a dedicated account which is 
excluded from resources. (See Sec. 416.1247).

[45 FR 65547, Oct. 3, 1980, as amended at 47 FR 55213, Dec. 8, 1982; 48 
FR 21943, May 16, 1983; 48 FR 33258, July 21, 1983; 48 FR 57127, Dec. 
28, 1983; 50 FR 48574, Nov. 26, 1985; 51 FR 39523, Oct. 29, 1986; 54 FR 
19164, May 4, 1989; 55 FR 28378, July 11, 1990; 57 FR 1384, Jan. 14, 
1992; 57 FR 53850, Nov. 13, 1992; 58 FR 63888, Dec. 3, 1993; 61 FR 1712, 
Jan. 23, 1996; 61 FR 49964, Sept. 24, 1996; 61 FR 67207, Dec. 20, 1996]

                     In-Kind Support and Maintenance



Sec. 416.1130  Introduction.

    (a) General. Both earned income and unearned income include items 
received in kind (Sec. 416.1102). Generally we value in-kind items at 
their current market value and we apply the various exclusions for both 
earned and unearned income. However, we have special rules for valuing 
food, clothing, or shelter that is received as unearned income (in-kind 
support and maintenance). This section and the ones that follow discuss 
these rules. In these sections (Secs. 416.1130 through 416.1148) the 
Federal benefit rate that applies for the purpose of valuing in-kind 
support and maintenance is the rate for the month in which you receive 
the in-kind support and maintenance.
    Example:  Joe receives an SSI benefit which is computed by 
subtracting one-third from the Federal benefit rate. This one-third 
represents the value of the income he receives by reason of the fact 
that he lives in the household of a son who provides both food and 
shelter (in-kind support and maintenance). When the SSI benefit rate is 
increased in January, his SSI benefit for that month is based on the 
value of the in-kind support and maintenance he received in November 
(measured as one-third of the Federal benefit rate for November).
    (b) How we define in-kind support and maintenance. In-kind support 
and maintenance means any food, clothing, or shelter that is given to 
you or that you receive because someone else pays for it. Shelter 
includes room, rent, mortgage payments, real property taxes, heating 
fuel, gas, electricity, water, sewerage, and garbage collection 
services. You are not receiving in-kind support and maintenance in the 
form of room or rent if you are paying the amount charged under a 
business arrangement. A business arrangement exists when the amount of 
monthly rent required to be paid equals the current market rental value 
(see Sec. 416.1101). Exception: In the States in the Seventh Circuit 
(Illinois, Indiana, and Wisconsin), a business arrangement exists when 
the amount of monthly rent required to be paid equals or exceeds the 
presumed maximum value described in Sec. 416.1140(a)(1). In those 
States, if the required amount of rent is less than the presumed maximum 
value, we will impute as in-kind support and maintenance, the difference 
between the required amount of rent and either the presumed maximum 
value or the current market value, whichever is less.
    (c) How we value in-kind support and maintenance. Essentially, we 
have two rules for valuing the in-kind support and maintenance which we 
must count. The one-third reduction rule applies if you are living in 
the household of a person who provides you with both food and shelter 
(Secs. 416.1131 through 416.1133). The presumed value rule applies in 
all

[[Page 828]]

other situations where you are receiving countable in-kind support and 
maintenance (Secs. 416.1140 through 416.1145). If certain conditions 
exist, we do not count in-kind support and maintenance. These are 
discussed in Secs. 416.1141 through 416.1145.

[45 FR 65547, Oct. 3, 1980, as amended at 50 FR 48574, Nov. 26, 1985; 51 
FR 13488, Apr. 21, 1986; 60 FR 16375, Mar. 30, 1995]



Sec. 416.1131  The one-third reduction rule.

    (a) What the rule is. Instead of determining the actual dollar value 
of in-kind support and maintenance, we count one-third of the Federal 
benefit rate as additional income if you (or you and your eligible 
spouse)--
    (1) Live in another person's household (see Sec. 416.1132) for a 
full calendar month except for temporary absences (see Sec. 416.1149), 
and
    (2) Receive both food and shelter from the person in whose household 
you are living. (If you do not receive both food and shelter from this 
person, see Sec. 416.1140.)
    (b) How we apply the one-third reduction rule. The one-third 
reduction applies in full or not at all. When you are living in another 
person's household, and the one-third reduction rule applies, we do not 
apply any income exclusions to the reduction amount. However, we do 
apply appropriate exclusions to any other earned or unearned income you 
receive. If you have an eligible spouse we apply the rules described in 
Sec. 416.1147.
    (c) If you receive other support and maintenance. If the one-third 
reduction rule applies to you, we do not count any other in-kind support 
and maintenance you receive.

[45 FR 65547, Oct. 3, 1980, as amended at 50 FR 48574, Nov. 26, 1985]



Sec. 416.1132  What we mean by ``living in another person's household''.

    (a) Household. For purposes of this subpart, we consider a household 
to be a personal place of residence. A commercial establishment such as 
a hotel or boarding house is not a household but a household can exist 
within a commercial establishment. If you live in a commercial 
establishment, we do not automatically consider you to be a member of 
the household of the proprietor. You may, however, live in the household 
of a roomer or boarder within the hotel or boarding house. An 
institution is not a household and a household cannot exist within an 
institution. (Institution is defined in Sec. 416.1101.)
    (b) Another person's household. You live in another person's 
household if paragraph (c) of this section does not apply and if the 
person who supplies the support and maintenance lives in the same 
household and is not--
    (1) Your spouse (as defined in Sec. 416.1806);
    (2) A minor child; or
    (3) An ineligible person (your spouse, parent, or essential person) 
whose income may be deemed to you as described in Secs. 416.1160 through 
416.1169.
    (c) Your own household--not another person's household. You are not 
living in another person's household (you live in your own household) 
if--
    (1) You (or your spouse who lives with you or any person whose 
income is deemed to you) have an ownership interest or a life estate 
interest in the home;
    (2) You (or your spouse who lives with you or any person whose 
income is deemed to you) are liable to the landlord for payment of any 
part of the rental charges;
    (3) You live in a noninstitutional care situation as described in 
Sec. 416.1143;
    (4) You pay at least a pro rata share of household and operating 
expenses (see Sec. 416.1133); or
    (5) All members of the household receive public income--maintenance 
payments (Sec. 416.1142).

[45 FR 65547, Oct. 3, 1980, as amended at 50 FR 48574, Nov. 26, 1985]



Sec. 416.1133  What is a pro rata share of household operating expenses.

    (a) General. If you pay your pro rata share toward monthly household 
operating expenses, you are living in your own household and are not 
receiving in-kind support and maintenance from anyone else in the 
household. The one-third reduction, therefore, does not apply to you. 
(If you are receiving food, clothing, or shelter from someone outside 
the household, we value it under the rule in Sec. 416.1140.)

[[Page 829]]

    (b) How we determine a pro rata share. Your pro rata share of 
household operating expenses is the average monthly household operating 
expenses (based on a reasonable estimate if exact figures are not 
available) divided by the number of people in the household, regardless 
of age.
    (c) Average household operating expenses. Household operating 
expenses are the household's total monthly expenditures for food, rent, 
mortgage, property taxes, heating fuel, gas, electricity, water, 
sewerage, and garbage collection service. (The term does not include the 
cost of these items if someone outside the household pays for them.) 
Generally, we average household operating expenses over the past 12 
months to determine a pro rata share.



Sec. 416.1140  The presumed value rule.

    (a) How we apply the presumed value rule. (1) When you receive in-
kind support and maintenance and the one-third reduction rule does not 
apply, we use the presumed value rule. Instead of determining the actual 
dollar value of any food, clothing, or shelter you receive, we presume 
that it is worth a maximum value. This maximum value is one-third of 
your Federal benefit rate plus the amount of the general income 
exclusion described in Sec. 416.1124(c)(12).
    (2) The presumed value rule allows you to show that your in-kind 
support and maintenance is not equal to the presumed value. We will not 
use the presumed value if you show us that--
    (i) The current market value of any food, clothing, or shelter you 
receive, minus any payment you make for them, is lower than the presumed 
value; or
    (ii) The actual amount someone else pays for your food, clothing, or 
shelter is lower than the presumed value.
    (b) How we determine the amount of your unearned income under the 
presumed value rule. (1) If you choose not to question the use of the 
presumed value, or if the presumed value is less than the actual value 
of the food, clothing, or shelter you receive, we use the presumed value 
to figure your unearned income.
    (2) If you show us, as provided in paragraph (a)(2) of this section, 
that the presumed value is higher than the actual value of the food, 
clothing, or shelter you receive, we use the actual amount to figure 
your unearned income.

[45 FR 65547, Oct. 3, 1980, as amended at 50 FR 48575, Nov. 26, 1985; 58 
FR 63888, Dec. 3, 1993]



Sec. 416.1141  When the presumed value rule applies.

    The presumed value rule applies whenever we must count in-kind 
support and maintenance as unearned income and the one-third reduction 
rule does not apply. This means that the presumed value rule applies if 
you are living--
    (a) In another person's household (as described in Sec. 416.1132(b)) 
but not receiving both food and shelter from that person;
    (b) In your own household (as described in Sec. 416.1132(c)). For 
exceptions, see Sec. 416.1142 if you are in a public assistance 
household and Sec. 416.1143 if you are in a noninstitutional care 
situation;
    (c) In a nonmedical institution including any--
    (1) Public nonmedical institution if you are there for less than a 
full calendar month;
    (2) Public or private nonprofit educational or vocational training 
insitution;
    (3) Private nonprofit retirement home or similar institution where 
there is an express obligation to provide your full support and 
maintenance or where someone else pays for your support and maintenance. 
For exceptions, see Sec. 416.1144; and
    (4) For-profit institution where someone else pays for your support 
and maintenance. If you or the institution pay for it, see 
Sec. 416.1145.



Sec. 416.1142  If you live in a public assistance household.

    (a) Definition. A public assistance household is one in which every 
member receives some kind of public income-maintenance payments. These 
are payments made under--
    (1) Title IV-A of the Social Security Act (Aid to Families with 
Dependent Children);

[[Page 830]]

    (2) Title XVI of the Social Security Act (SSI, including federally 
administered State supplements and State administered mandatory 
supplements);
    (3) The Refugee Act of 1980 (Those payments based on need);
    (4) The Disaster Relief and Emergency Assistance Act;
    (5) General assistance programs of the Bureau of Indian Affairs;
    (6) State or local government assistance programs based on need (tax 
credits or refunds are not assistance based on need); and
    (7) U.S. Department of Veterans Affairs programs (those payments 
based on need).
    (b) How the presumed value rule applies. If you live in a public 
assistance household, we consider that you are not receiving in-kind 
support and maintenance from members of the household. In this 
situation, we use the presumed value rule only if you receive food, 
clothing, or shelter from someone outside the household.

[45 FR 65547, Oct. 3, 1980, as amended at 57 FR 53850, Nov. 13, 1992]



Sec. 416.1143  If you live in a noninstitutional care situation.

    (a) Definitions. For purposes of this subpart you live in a 
noninstitutional care situation if all the following conditions exist:
    (1) You are placed by a public or private agency under a specific 
program such as foster or family care;
    (2) The placing agency is responsible for your care;
    (3) You are in a private household (not an institution) which is 
licensed or approved by the placing agency to provide care; and
    (4) You, a public agency, or someone else pays for your care.
    (b) How the presumed value rule applies. You are not receiving in-
kind support and maintenance and the presumed value rule does not apply 
if you pay the rate the placing agency establishes. We consider this 
established rate to be the current market value for the in-kind support 
and maintenance you are receiving. The presumed value rule applies if 
you pay less than the established rate and the difference is paid by 
someone else other than a public or private agency providing social 
services described in Sec. 416.1103(b) or assistance based on need 
described in Sec. 416.1124(c)(2).



Sec. 416.1144  If you live in a nonprofit retirement home or similar institution.

    (a) Definitions. For purposes of this section the following 
definitions apply:
    (1) Nonprofit retirement home or similar institution means a 
nongovernmental institution as defined under Sec. 416.1101, which is, or 
is controlled by, a private nonprofit organization and which does not 
provide you with--
    (i) Services which are (or could be) covered under Medicaid, or
    (ii) Education or vocational training.
    (2) Nonprofit organization means a private organization which is tax 
exempt under section 501(a) of the Internal Revenue Code of 1954 and is 
of the kind described in section 501(c) or (d) of that code.
    (3) An express obligation to provide your full support and 
maintenance means there is either a legally enforceable written contract 
or set of membership rules providing that the home, institution, or 
organization--
    (i) Will provide at least all of your food and shelter needs; and
    (ii) Does not require any current or future payment for that food 
and shelter. (For purposes of this paragraph, a lump sum prepayment for 
lifetime care is not a current payment.)
    (b) How the presumed value rule applies. The presumed value rule 
applies if you are living in a nonprofit retirement home or similar 
institution where there is an express obligation to provide your full 
support and maintenance or where someone else pays for your support and 
maintenance. The rule does not apply to the extent that--
    (1) The home, institution, or nonprofit organization does not have 
an express obligation to provide your full support and maintenance; and
    (2) The home, institution, or nonprofit organization receives no 
payment for your food, clothing, or shelter, or receives payment from 
another nonprofit organization.

[45 FR 65547, Oct. 3, 1980, as amended at 51 FR 34464, Sept. 29, 1986]

[[Page 831]]



Sec. 416.1145  How the presumed value rule applies in a nonmedical for-profit institution.

    If you live in a nonmedical for-profit institution, we consider the 
amount accepted by that institution as payment in full to be the current 
market value of whatever food, clothing, or shelter the institution 
provides. If you are paying or are legally indebted for that amount, you 
are not receiving in-kind support and maintenance. We do not use the 
presumed value rule unless someone else pays for you.

        In-Kind Support and Maintenance in Special Circumstances



Sec. 416.1147  How we value in-kind support and maintenance for a couple.

    (a) Both members of a couple live in another person's household and 
receive food and shelter from that person. When both of you live in 
another person's household throughout a month and receive food and 
shelter from that person, we apply the one-third reduction to the 
Federal benefit rate for a couple (Sec. 416.1131).
    (b) One member of a couple lives in another person's household and 
receives food and shelter from that person and the other member of the 
couple is in a medical institution. (1) If one of you is living in the 
household of another person who provides you with both food and shelter, 
and the other is temporarily absent from the household as provided in 
Sec. 416.1149(c)(1) (in a medical institution that receives substantial 
Medicaid payments for his or her care (Sec. 416.211(b))), and is 
ineligible in the month for either benefit payable under Sec. 416.212, 
we compute your benefits as if you were separately eligible individuals 
(see Sec. 416.414(b)(3)). This begins with the first full calendar month 
that one of you is in the medical institution. The one living in another 
person's household is eligible at an eligible individual's Federal 
benefit rate and one-third of that rate is counted as income not subject 
to any income exclusions. The one in the medical institution cannot 
receive more than the reduced benefit described in 
Sec. 416.414(b)(3)(i).
    (2) If the one member of the couple in the institution is eligible 
for one of the benefits payable under the Sec. 416.212 provisions, we 
compute benefits as a couple at the rate specified under Sec. 416.412. 
However, if that one member remains in the institution for a full month 
after expiration of the period benefits based on Sec. 416.212 can be 
paid, benefits will be computed as if each person were separately 
eligible as described under paragraph (c)(1) of this section. This 
begins with the first calendar month after expiration of the period 
benefits based on Sec. 416.212 can be paid.
    (c) Both members of a couple are subject to the presumed value rule. 
If the presumed value rule applies to both of you, we value any food, 
clothing, or shelter you and your spouse receive at one-third of the 
Federal benefit rate for a couple plus the amount of the general income 
exclusion (Sec. 416.1124(c)(12)), unless you can show that their value 
is less as described in Sec. 416.1140(a)(2).
    (d) One member of a couple is subject to the presumed value rule and 
the other member is in a medical institution. (1) If one of you is 
subject to the presumed value rule and the other is temporarily absent 
from the household as provided in Sec. 416.1149(c)(1) (in a medical 
institution that receives substantial Medicaid payments for his or her 
care (Sec. 416.211(b))), and is ineligible in that month for either 
benefit payable under Sec. 416.212, we compute your benefits as if both 
members of the couple are separately eligible individuals (see 
Sec. 416.414(b)(3)). This begins with the first full calendar month that 
one of you is in the medical institution (see Sec. 416.211(b)). We value 
any food, clothing, or shelter received by the one outside of the 
medical institution at one-third of an eligible individual's Federal 
benefit rate, plus the amount of the general income exclusion 
(Sec. 416.1124(c)(12)), unless you can show that their value is less as 
described in Sec. 416.1140(a)(2). The member of the couple in the 
medical institution cannot receive more than the reduced benefit 
described in Sec. 416.414(b)(3)(i).
    (2) If one of you is subject to the presumed value rule and the 
other in the institution is eligible for one of the benefits payable 
under Sec. 416.212, we compute the benefits as a couple at the rate 
specified under Sec. 416.412. However, if the one in the institution 
remains in

[[Page 832]]

the institution after the period benefits based on Sec. 416.212 can be 
paid, we will compute benefits as if each member of the couple were 
separately eligible as described in paragraph (d)(1) of this section.

[60 FR 16375, Mar. 30, 1995, as amended at 61 FR 10279, Mar. 13, 1996]



Sec. 416.1147a  Income rules in change-of-status situations involving in-kind support and maintenance.

    (a) General. This section explains the rules for determining 
countable income, including in-kind support and maintenance, when 
eligible individuals become an eligible couple or when an eligible 
couple becomes eligible individuals. Generally, under retrospective 
monthly accounting, income in a prior month, including in-kind support 
and maintenance, affects benefit amounts for a current month. The prior 
month may be the first or second month prior to the current month (as 
explained in Sec. 416.420(a)) and the rules in this section apply when a 
change-of-status becomes effective between the prior month and the 
current month.
    (b) Eligible individuals become an eligible couple. If you and your 
spouse have been eligible individuals and become an eligible couple, we 
combine the earned and unearned income each of you had as an eligible 
individual in the prior month. If either or both of you received in-kind 
support and maintenance, we include its value as income. This may be 
one-third of the Federal benefit rate that applied in the prior month 
for one or both of you who lived in the household of another. It may be 
the presumed maximum value (one-third of the Federal benefit rate plus 
$20 as explained in Sec. 416.1140) for one or both of you as 
appropriate. It may also be a combination of the two if each of you 
received income in one of these forms. We also include income deemed to 
either or both of you in the prior month.
    (c) Eligible couple becomes one or two eligible individuals. If you 
are an eligible individual in the current month but were a member of an 
eligible couple in the prior month, we determine your countable income 
in the prior month separately from that of your spouse. We determine the 
value of any in-kind support and maintenance you and your spouse 
received in the prior month using the rules contained in Sec. 416.1147. 
For example, if both of you lived in the household of another and the 
one-third reduction applied, each of you would have income equal to one-
sixth of the Federal benefit rate fov a couple. Also, for example, if 
you received in-kind support and maintenance and the presumed maximum 
value applied, you would have income equal to one-sixth of the Federal 
benefit rate for a couple, plus $10. We divide any other income you had 
as an eligible couple according to who owned the income. If ownership of 
jointly owned income cannot be determined, we allocate one-half of it to 
you.

[50 FR 48575, Nov. 26, 1985]



Sec. 416.1148  If you have both in-kind support and maintenance and income that is deemed to you.

    (a) The one-third reduction and deeming of income. If you live in 
the household of your spouse, parent, essential person, or sponsor whose 
income can be deemed to you, or the household of a parent whose income 
is not deemed to you because of the provisions of Sec. 416.1165(i), the 
one-third reduction does not apply to you. The rules on deeming income 
are in Secs. 416.1160 through 416.1169. However, if you live in another 
person's household as described in Sec. 416.1131, and someone whose 
income can be deemed to you lives in the same household, we must apply 
both the one-third reduction and the deeming rules to you.
    (b) The presumed value rule and deeming of income. (1) If you live 
in the same household with someone whose income can be deemed to you 
(Secs. 416.1160 through 416.1169), or with a parent whose income is not 
deemed to you because of the provisions of Sec. 416.1165(i), any food, 
clothing, or shelter that person provides is not income to you. However, 
if you receive any food, clothing, or shelter from another source, it is 
income and we value it under the presumed value rule (Sec. 416.1140). We 
also apply the deeming rules.
    (2) If you are a child under age 18 who lives in the same household 
with an ineligible parent whose income may be

[[Page 833]]

deemed to you, and you are temporarily absent from the household to 
attend school (Sec. 416.1167(b)), any food, clothing, or shelter you 
receive at school is income to you unless your parent purchases it. 
Unless otherwise excluded, we value this income under the presumed value 
rule (Sec. 416.1140). We also apply the deeming rules to you 
(Sec. 416.1165).

[60 FR 361, Jan. 4, 1995]

                            Temporary Absence



Sec. 416.1149  What is a temporary absence from your living arrangement.

    (a) General. A temporary absence may be due to employment, 
hospitalization, vacations, or visits. The length of time an absence can 
be temporary varies depending on the reason for your absence. For 
purposes of valuing in-kind support and maintenance under Secs. 416.1130 
through 416.1148, we apply the rules in this section. In general, we 
will find a temporary absence from your permanent living arrangement if 
you (or you and your eligible spouse)-
    (1) Become a resident of a public institution, or a public or 
private medical care facility where you otherwise would be subject to 
the reduced benefit rate described in Sec. 416.414, and you are eligible 
for the benefits payable under Sec. 416.212; or
    (2) Were in your permanent living arrangement for at least 1 full 
calendar month prior to the absence and intend to, and do, return to 
your permanent living arrangement in the same calendar month in which 
you (or you and your spouse) leave, or in the next month.
    (b) Rules we apply during a temporary absence. During a temporary 
absence, we continue to value your support and maintenance the same way 
that we did in your permanent living arrangement. For example, if the 
one-third reduction applies in your permanent living arrangement, we 
continue to apply the same rule during a temporary absence. However, if 
you receive in-kind support and maintenance only during a temporary 
absence we do not count it since you are still responsible for 
maintaining your permanent quarters during the absence.
    (c) Rules for temporary absence in certain circumstances. (1)(i) If 
you enter a medical care facility where you are eligible for the reduced 
benefits payable under Sec. 416.414 for full months in the facility, and 
you are not eligible for either benefit payable under Sec. 416.212 (and 
you have not received such benefits during your current period of 
confinement) and you intend to return to your prior living arrangement, 
we consider this a temporary absence regardless of the length of your 
stay in the facility. We use the rules that apply to your permanent 
living arrangement to value any food, clothing, or shelter you receive 
during the month (for which reduced benefits under Sec. 416.414 are not 
payable) you enter or leave the facility. During any full calendar month 
you are in the medical care facility, you cannot receive more than the 
Federal benefit rate described in Sec. 416.414(b)(1). We do not consider 
food or shelter provided during a medical confinement to be income.
    (ii) If you enter a medical care facility and you are eligible for 
either benefit payable under Sec. 416.212, we also consider this a 
temporary absence from your permanent living arrangement. We use the 
rules that apply to your permanent living arrangement to value any food, 
clothing, or shelter you receive during the month you enter the facility 
and throughout the period you are eligible for these benefits. We 
consider your absence to be temporary through the last month benefits 
under Sec. 416.212 are paid unless you are discharged from the facility 
in the following month. In that case, we consider your absence to be 
temporary through the date of discharge.
    (2)(i) Generally, if you are a child under age 22, you are 
temporarily absent while you are away at school, regardless of how long 
you are away, if you come home on some weekends, lengthy holidays, and 
vacations (or for extended visits as provided in school regulations).
    (ii) However, if you are a child under age 18, and your permanent 
living arrangement is with an ineligible parent or essential person 
(Sec. 416.222), we follow the rules in Sec. 416.1148(b)(2). When you

[[Page 834]]

reach age 18, or if you are under age 18 and deeming does not apply, we 
consider the circumstances of your permanent living arrangement to value 
any in-kind support and maintenance you receive.

[45 FR 65547, Oct. 3, 1980, as amended at 50 FR 48575, Nov. 26, 1985; 52 
FR 8882, Mar. 20, 1987; 61 FR 10279, Mar. 13, 1996; 62 FR 1056, Jan. 8, 
1997]

                                Disasters



Sec. 416.1150  How we treat income received because of a major disaster.

    (a) General. The Disaster Relief and Emergency Assistance Act and 
other Federal statutes provide assistance to victims of major disasters. 
In this section we describe when we do not count certain kinds of 
assistance you receive under these statutes.
    (b) Support and maintenance. (1) We do not count the value of 
support and maintenance (in cash or in kind) received from a Federal, 
State, or local government source, or from a disaster assistance 
organization, and the one-third reduction rule does not apply if--
    (i) You live in a household which you or you and another person 
maintain as your home when a catastrophe occurs in the area;
    (ii) The President of the United States declares the catastrophe to 
be a major disaster for purposes of the Disaster Relief and Emergency 
Assistance Act;
    (iii) You stop living in the home because of the catastrophe and 
within 30 days after the catastrophe you begin to receive support and 
maintenance; and
    (iv) You receive the support and maintenance while living in a 
residential facility maintained by another person.
    (2) We do not count the value of support and maintenance (in cash or 
in kind) received from any other source, such as from a private 
household, and the one-third reduction rule does not apply for up to 18 
months after you begin to receive it if--
    (i) You live in a household which you or you and another person 
maintain as your home when a catastrophe occurs in the area;
    (ii) The President of the United States declares the catastrophe to 
be a major disaster for purposes of the Disaster Relief and Emergency 
Assistance Act;
    (iii) You stop living in the home because of the catastrophe and 
within 30 days after the catastrophe you begin to receive support and 
maintenance; and
    (iv) You receive the support and maintenance while living in a 
residential facility (including a private household) maintained by 
another person.
    (c) Other assistance you receive. We do not consider other 
assistance to be income if you receive it under the Disaster Relief and 
Emergency Assistance Act or under another Federal statute because of a 
catastrophe which the President declares to be a major disaster or if 
you receive it from a State or local government or from a disaster 
assistance organization. For example, you may receive payments to repair 
or replace your home or other property.
    (d) Interest payments. We do not count any interest earned on the 
assistance payments described in paragraph (c) of this section.

[57 FR 53850, Nov. 13, 1992]



Sec. 416.1151  How we treat the repair or replacement of lost, damaged, or stolen resources.

    (a) General rule. If a resource is lost, damaged, or stolen, you may 
receive cash to repair or replace it or the resource may be repaired or 
replaced for you. We do not count the cash or the repair or replacement 
of the resource as your income.
    (b) Interest on cash for repair or replacement of a noncash 
resource. We do not count any interest earned on the cash you receive 
for repair or replacement of a noncash resource if the interest is 
earned within 9 months of the date you receive the cash. We can extend 
the 9-month period for up to an additional 9 months if we find you have 
good cause for not repairing or replacing the resource within the 
initial period. Good cause exists, for example, if you show that 
circumstances beyond your control prevent the repair or replacement, or 
contracting for the repair or replacement, of the resource within the 
first 9-month period.
    (c) Temporary replacement of a damaged or destroyed home. In 
determining the amount of in-kind support and

[[Page 835]]

maintenance you receive (Secs. 416.1130 through 416.1140), we do not 
count temporary housing if--
    (1) Your excluded home is damaged or destroyed, and
    (2) You receive the temporary housing only until your home is 
repaired or replaced.

                         Home Energy Assistance



Sec. 416.1157  Support and maintenance assistance.

    (a) General. Section 2639 of Pub. L. 98-369, effective October 1, 
1984, amended section 1612(b)(13) to provide that certain support and 
maintenance assistance, which includes home energy assistance, be 
excluded from countable income for SSI purposes. This section discusses 
how we apply section 1612(b)(13).
    (b) Definitions. For support and maintenance assistance purposes--
    Appropriate State agency means the agency designated by the chief 
executive officer of the State to handle the State's responsibilities as 
set out in paragraph (c) of this section.
    Based on need means that the provider of the assistance: (1) Does 
not have an express obligation to provide the assistance; (2) States 
that the aid is given for the purpose of support or maintenance 
assistance or for home energy assistance (e.g., vouchers for heating or 
cooling bills, storm doors); and (3) Provides the aid for an SSI 
claimant, a member of the household in which an SSI claimant lives or an 
SSI claimant's ineligible spouse, parent, sponsor (or the sponsor's 
spouse) of an alien, or essential person.
    Private nonprofit agency means a religious, charitable, educational, 
or other organization such as described in section 501(c) of the 
Internal Revenue Code of 1954. (Actual tax exempt certification by IRS 
is not necessary.)
    Rate-of-return entity means an entity whose revenues are primarily 
received from the entity's charges to the public for goods or services 
and such charges are based on rates regulated by a State or Federal 
governmental body.
    Support and maintenance assistance means cash provided for the 
purpose of meeting food, clothing, or shelter needs or in-kind support 
and maintenance as defined in Sec. 416.1121(h). Support and maintenance 
assistance includes home energy assistance. Home energy assistance means 
any assistance related to meeting the costs of heating or cooling a 
home. Home energy assistance includes such items as payments for utility 
service or bulk fuels; assistance in kind such as portable heaters, 
fans, blankets, storm doors, or other items which help reduce the costs 
of heating and cooling such as conservation or weatherization materials 
and services; etc.
    (c) What assistance we do not count as income. We do not count as 
income certain support and maintenance assistance received on or after 
October 1, 1984, by you or your ineligible spouse, parent, sponsor (or 
your sponsor's spouse) if you are an alien, or an essential person. We 
also do not consider certain support and maintenance assistance in 
determining a pro rata share of household operating expenses under 
Sec. 416.1133. We do not count that assistance which is certified in 
writing by the appropriate State agency to be both based on need and--
    (1) Provided in kind by a private nonprofit agency; or
    (2) Provided in cash or in kind by--
    (i) A supplier of home heating oil or gas;
    (ii) A rate-of-return entity providing home energy; or
    (iii) A municipal utility providing home energy.

[51 FR 39523, Oct. 29, 1986; 51 FR 43709, Dec. 3, 1986, as amended at 53 
FR 35808, Sept. 15, 1988]

                            Deeming of Income



Sec. 416.1160  What is deeming of income.

    (a) General. We use the term deeming to identify the process of 
considering another person's income to be your own. When the deeming 
rules apply, it does not matter whether the income of the other person 
is actually available to you. We must apply these rules anyway. There 
are four categories of individuals whose income may be deemed to you.
    (1) Ineligible spouse. If you live in the same household with your 
ineligible spouse, we look at your spouse's income to decide whether we 
must deem

[[Page 836]]

some of it to you. We do this because we expect your spouse to use some 
of his or her income to take care of some of your needs.
    (2) Ineligible parent. If you are a child to whom deeming rules 
apply (See Sec. 416.1165), we look at your parent's income (and that of 
your parent's spouse) to decide whether we must deem some of it to be 
yours. We do this because we expect your parent to use some of his or 
her income to take care of your needs.
    (3) Sponsor of an alien. If you are an alien who has a sponsor and 
you first apply for SSI benefits after September 30, 1980, we look at 
your sponsor's income to decide whether we must deem some of it to be 
yours. This rule applies for 3 years after you are admitted to the 
United States for permanent residence and regardless of whether you live 
in the same household as your sponsor. We deem your sponsor's income to 
you because your sponsor agreed to support you (signed an affidavit of 
support) as a condition of your admission to the United States. If two 
deeming rules could apply to you because your sponsor is also your 
ineligible spouse or parent who lives with you, we use the appropriate 
spouse-to-spouse or parent-to-child deeming rules instead of the 
sponsor-to-alien rules. If you have a sponsor and also have an 
ineligible spouse or parent who is not your sponsor and whose income can 
be deemed to you, both rules apply. If your sponsor is not your parent 
or spouse but is the ineligible spouse or parent of another SSI 
beneficiary, we use the sponsor-to-alien deeming rules for you and the 
appropriate spouse-to-spouse or parent-to-child deeming rules for the 
other SSI beneficiary.
    (4) Essential person. If you live in the same household with your 
essential person (as defined in Sec. 416.222), we must look at that 
person's income to decide whether we must deem some of it to you. We do 
this because we have increased your benefit to help meet the needs of 
your essential person.
    (b) When we deem. We deem income to determine whether you are 
eligible for a benefit and to determine the amount of your benefit. 
However, we may consider this income in different months for each 
purpose.
    (1) Eligibility. We consider the income of your ineligible spouse, 
ineligible parent, sponsor or essential person in the current month to 
determine whether you are eligible for SSI benefits for that month.
    (2) Amount of benefit. We consider the income of your ineligible 
spouse, ineligible parent, sponsor, or essential person in the second 
month prior to the current month to determine your benefit amount for 
the current month. Exceptions:
    (i) To determine your benefit amount for the first month you are 
eligible or for a month after you have been ineligible for at least a 
month, we use the same countable income that we use to determine your 
eligibility. In the following month (the second month) we use the same 
countable income that we used in the preceding month to determine your 
benefit amount.
    (ii) To determine the amount of your benefit in the current month, 
if there are certain changes in your situation which we list below, we 
use only your own countable income in a prior month, excluding any 
income deemed to you in that month from an ineligible spouse or parent. 
These changes are the death of your spouse or parent, your attainment of 
age 18, or your becoming subject to the $30 Federal benefit rate 
(Sec. 416.211(b)).
    (iii) To determine the amount of your benefit for the current month, 
we do not use income deemed from your essential person beginning with 
the month you can no longer qualify for the essential person increment 
(Sec. 416.413). We use only your own countable income in a prior month 
to determine the amount of your benefit for the current month.
    (c) Steps in deeming. Although the way we deem income varies 
depending upon whether you are an eligible individual, an eligible 
child, an alien with a sponsor, or an individual with an essential 
person, we follow several general steps to determine how much income to 
deem.
    (1) We determine how much earned and unearned income your ineligible 
spouse, ineligible parent, sponsor, or essential person has, and we 
apply the appropriate exclusions. (See Sec. 416.1161(a) for exclusions 
that apply to

[[Page 837]]

an ineligible parent or spouse, and Sec. 416.1161(b) for those that 
apply to an essential person or to a sponsor.)
    (2) Before we deem income to you from either your ineligible spouse 
or ineligible parent, we allocate an amount for each ineligible child in 
the household. (Allocations for ineligible children are explained in 
Sec. 416.1163(b) and Sec. 416.1165(b).) We also allocate an amount for 
each eligible alien who is subject to deeming from your ineligible 
spouse or parent as a sponsor. (Allocations for eligible aliens are 
explained in Sec. 416.1163(c).)
    (3) We then follow the deeming rules which apply to you.
    (i) For deeming income from your ineligible spouse, see 
Sec. 416.1163.
    (ii) For deeming income from your ineligible parent, see 
Sec. 416.1165.
    (iii) For deeming income from your ineligible spouse when you also 
have an eligible child, see Sec. 416.1166.
    (iv) For deeming income from your sponsor if you are an alien, see 
Sec. 416.1166a.
    (v) For deeming income from your essential person, see 
Sec. 416.1168. The rules on when we stop deeming income from your 
essential person are in Sec. 416.1169.
    (vi) For provisions on change in status involving couples see 
Sec. 416.1163(f) and for those involving parents see Sec. 416.1165(g).
    (d) Definitions for deeming purposes. For deeming purposes--
    Date of admission to or date of entry into the United States means 
the date established by the Immigration and Naturalization Service as 
the date the alien is admitted for permanent residence.
    Dependent means the same thing as it does for Federal income tax 
purposes--we mean someone for whom you are entitled to take a deduction 
on your personal income tax return. Exception: An alien and an alien's 
spouse are not considered to be dependents of the alien's sponsor for 
the purposes of these rules.
    Essential person means someone who was identified as essential to 
your welfare under a State program that preceded the SSI program. (See 
Secs. 416.220 through 416.223 for the rules on essential persons.)
    Ineligible child means your natural child or adopted child, or the 
natural or adopted child of your spouse, or the natural or adopted child 
of your parent or of your parent's spouse (as the terms child and spouse 
are defined in Sec. 416.1101), who is under age 21, lives in the same 
household with you, and is not eligible for SSI benefits.
    Ineligible parent means a natural or adoptive parent, or the spouse 
(as defined in Sec. 416.1101) of a natural or adoptive parent, who lives 
with you and is not eligible for SSI benefits. The income of ineligible 
parents affects your benefit only if you are a child under age 18.
    Ineligible spouse means someone who lives with you as your husband 
or wife and is not eligible for SSI benefits.
    Sponsor means an individual (but not an organization such as the 
congregation of a church or a service club, or an employer who only 
guarantees employment for an alien upon entry but does not sign an 
affadavit of support) who signs an affidavit of support agreeing to 
support you as a condition of your admission as an alien for permanent 
residence in the United States.

[52 FR 8882, Mar. 20, 1987, as amended at 54 FR 19164, May 4, 1989]



Sec. 416.1161  Income of an ineligible spouse, ineligible parent, and essential person for deeming purposes.

    The first step in deeming is determining how much income your 
ineligible spouse, ineligible parent (if you are a child), your sponsor 
(if you are an alien), or your essential person, has. We do not always 
include all of their income when we determine how much income to deem. 
In this section we explain the rules for determining how much of their 
income is subject to deeming. As part of the process of deeming income 
from your ineligible spouse or parent, we must determine the amount of 
income of any ineligible children in the household.
    (a) For an ineligible spouse or parent. We do not include any of the 
following types of income (see Sec. 416.1102) of an ineligible spouse or 
parent:
    (1) Income excluded by Federal laws other than the Social Security 
Act (See the appendix to this subpart.)
    (2) Any public income-maintenance payments (Sec. 416.1142(a)) your 
ineligible

[[Page 838]]

spouse or parent receives, and any income which was counted or excluded 
in figuring the amount of that payment;
    (3) Any of the income of your ineligible spouse or parent that is 
used by a public income-maintenance program (Sec. 416.1142(a)) to 
determine the amount of that program's benefit to someone else;
    (4) Any portion of a grant, scholarship, or fellowship used to pay 
tuition or fees;
    (5) Money received for providing foster care to an ineligible child;
    (6) The value of food stamps and the value of Department of 
Agriculture donated foods;
    (7) Food raised by your parent or spouse and consumed by members of 
the household in which you live;
    (8) Tax refunds on income, real property, or food purchased by the 
family;
    (9) Income used to fulfill an approved plan for achieving self-
support (see Secs. 416.1180 through 416.1182);
    (10) Income used to comply with the terms of court-ordered support, 
or support payments enforced under title IV-D of the Act;
    (11) The value of in-kind support and maintenance;
    (12) Alaska Longevity Bonus payments made to an individual who is a 
resident of Alaska and who, prior to October 1, 1985: met the 25-year 
residency requirement for receipt of such payments in effect prior to 
January 1, 1983; and was eligible for SSI;
    (13) Disaster assistance as described in Secs. 416.1150 and 
416.1151;
    (14) Income received infrequently or irregularly (see 
Secs. 416.1112(c)(1) and 416.1124(c)(6));
    (15) Work expenses if the ineligible spouse or parent is blind;
    (16) Income of your ineligible spouse or ineligible parent which was 
paid under a Federal, State, or local government program (For example, 
payments under title XX of the Social Security Act) to provide you with 
chore, attendant or homemaker services;
    (17) Certain support and maintenance assistance as described in 
Sec. 416.1157(c);
    (18) Housing assistance as provided in Sec. 416.1124(c)(14);
    (19) The value of a commercial transportation ticket as described in 
Sec. 416.1124(c)(16). However, if such a ticket is converted to cash, 
the cash is income in the month your spouse or parent receives the cash;
    (20) Refunds of Federal income taxes and advances made by an 
employer relating to an earned income tax credit, as provided in 
Sec. 416.1112(c);
    (21) Payments from a fund established by a State to aid victims of 
crime (see Sec. 416.1124(c)(17));
    (22) Relocation assistance, as described in Sec. 416.1124(c)(18); 
and
    (23) Hostile fire pay received from one of the uniformed services 
pursuant to 37 U.S.C. 310;
    (24) Impairment-related work expenses, as described in 20 CFR 
404.1576, incurred and paid by an ineligible spouse or parent, if the 
ineligible spouse or parent receives disability benefits under title II 
of the Act; and
    (25) Interest earned on excluded burial funds and appreciation in 
the value of excluded burial arrangements which are left to accumulate 
and become part of separate burial funds, and interest accrued on and 
left to accumulate as part of the value of agreements representing the 
purchase of excluded burial spaces (see Sec. 416.1124(c) (9) and (15)).
    (b) For an essential person or for a sponsor of an alien. We include 
all the income (as defined in Sec. 416.1102) of an essential person or 
of a sponsor of an alien and of the spouse of the sponsor (if the 
sponsor and spouse live in the same household) except for support and 
maintenance assistance described in Sec.  416.1157(c), and income 
excluded under Federal laws other than the Social Security Act. For 
information on these laws see the appendix to this subpart.
    (c) For an ineligible child. Although we do not deem any income to 
you from an ineligible child, we reduce his or her allocation if the 
ineligible child has income (see Sec. 416.1163(b)(2)). For this purpose, 
we do not include any of the child's income listed in paragraph (a) of 
this section. In addition, if the ineligible child is a student (see 
Sec. 416.1861), we exclude any of the child's earned income up to $400 a 
month but not more than $1,620 per year.
    (d) For an eligible alien. Although we do not deem any income to you 
from an eligible alien, if your ineligible spouse or ineligible parent 
is also a sponsor of an eligible alien, we reduce

[[Page 839]]

the alien's allocation if he or she has income (see 
Sec. 416.1163(c)(2)). For this purpose exclude any of the alien's income 
listed in paragraph (a) of this section.

[45 FR 65547, Oct. 3, 1980, as amended at 46 FR 57276, Nov. 23, 1981; 48 
FR 33259, July 21, 1983; 50 FR 48576, Nov. 26, 1985; 51 FR 39523, Oct. 
29, 1986; 52 FR 8883, Mar. 20, 1987; 52 FR 44971, Nov. 24, 1987; 55 FR 
28378, July 11, 1990; 58 FR 63888, 63890, Dec. 3, 1993; 61 FR 1712, Jan. 
23, 1996; 61 FR 49964, Sept. 24, 1996]



Sec. 416.1161a  Income for deeming purposes where Medicaid eligibility is affected.

    (a) General. In many States, an individual who is eligible for SSI 
or a Federally administered State optional supplementary payment is in 
turn eligible for Medicaid. Also, several other States use SSI deeming 
rules in determining eligibility for Medicaid. In all of these States, 
in extraordinary cases, the Department will not apply the usual rules on 
deeming of income where those rules would result in an individual's 
being ineligible for SSI (or a Federally administered State optional 
supplementary payment) and Medicaid. Any determination made under this 
section may at any time be revised based on new information or changed 
circumstances.
    (b) When special deeming rules apply: (1) The Department will 
consider not applying the usual deeming rules only upon application by a 
State Medicaid agency (requirement approved under OMB No. 0960-0304) and 
on condition that the agency must show:
    (i) Deeming would result in lack of Medicaid eligibility for the 
individual.
    (ii) Medicaid eligibility would, prospectively, result in savings to 
the Medicaid program; and
    (iii) The quality of medical care necessary for the individual would 
be maintained under the arrangements contemplated.
    (2) The Department may also in particular cases require that 
additional facts be demonstrated, or that other criteria or standards be 
met, before it determines not to apply the usual deeming rules.
    (c) Amount of income to be deemed. If the usual rules of deeming do 
not apply, the Department will determine an amount, if any, to be 
deemed.
    (d) Temporary effect of special deeming rules. This provision is 
temporary and will be continued only through December 31, 1984. 
Determinations made under this section will nevertheless remain in 
effect unless they are revised based on changed circumstances (including 
establishment in the State of a Medicaid program of home and community-
based services or eligibility under a State plan provision) or new 
information.

[49 FR 5747, Feb. 15, 1984]



Sec. 416.1163  How we deem income to you from your ineligible spouse.

    If you have an ineligible spouse who lives in the same household, we 
apply the deeming rules to your ineligible spouse's income in the 
following order.
    (a) Determining your ineligible spouse's income. We first determine 
how much earned and unearned income your ineligible spouse has, using 
the appropriate exclusions in Sec. 416.1161(a).
    (b) Allocations for ineligible children. We then deduct an 
allocation for ineligible children in the household to help meet their 
needs. Exception: We do not allocate for ineligible children who are 
receiving public income-maintenance payments (see Sec. 416.1142(a)).
    (1) The allocation for each ineligible child is the difference 
between the Federal benefit rate for an eligible couple and the Federal 
benefit rate for an eligible individual. The amount of the allocation 
automatically increases whenever the Federal benefit rate increases. The 
amount of the allocation that we use to determine the amount of a 
benefit for a current month is based on the Federal benefit rate that 
applied in the second prior month unless one of the exceptions in 
Sec. 416.1160(b)(2) applies.
    (2) Each ineligible child's allocation is reduced by the amount of 
his or her own income as described in Sec. 416.1161(c).
    (3) We first deduct the allocations from your ineligible spouse's 
unearned income. If your ineligible spouse does not have enough unearned 
income to cover the allocations we deduct the balance from your 
ineligible spouse's earned income.
    (c) Allocations for aliens sponsored by your ineligible spouse. We 
also deduct an allocation for eligible aliens who have

[[Page 840]]

been sponsored by and who have income deemed from your ineligible 
spouse.
    (1) The allocation for each alien who is sponsored by and who has 
income deemed from your ineligible spouse is the difference between the 
Federal benefit rate for an eligible couple and the Federal benefit rate 
for an eligible individual. The amount of the allocation automatically 
increases whenever the Federal benefit rate increases. The amount of the 
allocation that we use to compute your benefit for a current month is 
based on the Federal benefit rate that applied in the second prior month 
(unless the current month is the first or second month of eligibility or 
re-eligibility as explained in Sec. 416.420(a) and (b) (2) and (3)).
    (2) Each alien's allocation is reduced by the amount of his or her 
own income as described in Sec. 416.1161(d).
    (3) We first deduct the allocations from your ineligible spouse's 
unearned income. If your ineligible spouse does not have enough unearned 
income to cover the allocations, we deduct the balance from your 
ineligible spouse's earned income.
    (d) Determining your eligibility for SSI. (1) If the amount of your 
ineligible spouse's income that remains after appropriate allocations is 
not more than the difference between the Federal benefit rate for an 
eligible couple and the Federal benefit rate for an eligible individual, 
there is no income to deem to you from your spouse. In this situation, 
we subtract only your own countable income from the Federal benefit rate 
for an individual to determine whether you are eligible for SSI 
benefits.
    (2) If the amount of your ineligible spouse's income that remains 
after appropriate allocations is more than the difference between the 
Federal benefit rate for an eligible couple and the Federal benefit rate 
for an eligible individual, we treat you and your ineligible spouse as 
an eligible couple. We do this by:
    (i) Combining the remainder of your spouse's unearned income with 
your own unearned income and the remainder of your spouse's earned 
income with your earned income;
    (ii) Applying all appropriate income exclusions in Secs. 416.1112 
and 416.1124; and
    (iii) Subtracting the couple's countable income from the Federal 
benefit rate for an eligible couple. (See Sec. 416.2025(b) for 
determination of the State supplementary payment amount.)
    (e) Determining your SSI benefit. (1) In determining your SSI 
benefit amount we follow the procedure in paragraphs (a) through (d) of 
this section. However, we use your ineligible spouse's income in the 
second month prior to the current month. We vary this rule if any of the 
exceptions in Sec. 416.1160(b)(2) applies (for example, if this is the 
first month you are eligible for an SSI benefit or if you are again 
eligible after at least a month of being ineligible). In the first month 
of your eligibility (or re-eligibility), we deem your ineligible 
spouse's income in the current month to determine both whether you are 
eligible for a benefit and the amount of your benefit. In the second 
month, we deem your ineligible spouse's income in that month to 
determine whether you are eligible for a benefit but we deem your 
ineligible spouse's income in the first month to determine the amount of 
your benefit.
    (2) Your SSI benefit under the deeming rules cannot be higher than 
it would be if deeming did not apply. Therefore, your benefit is the 
lesser of the amount computed under the rules in paragraph (d)(2) of 
this section or the amount remaining after we subtract only your own 
countable income from an individual's Federal benefit rate.
    (f) Special rules for couples when a change in status occurs. We 
have special rules to determine how to deem your spouse's income to you 
when there is a change in your situation.
    (1) Ineligible spouse becomes eligible. If your ineligible spouse 
becomes eligible for SSI benefits, we treat both of you as newly 
eligible. Therefore, your eligibility and benefit amount for the first 
month you are an eligible couple will be based on your income in that 
month. In the second month, your benefit amount will also be based on 
your income in the first month.

[[Page 841]]

    (2) Spouses separate or divorce. If you separate from your 
ineligible spouse or your marriage to an ineligible spouse ends by 
divorce, we do not deem your ineligible spouse's income to you to 
determine your eligibility for benefits beginning with the first month 
following the event. If you remain eligible, we determine your benefit 
amount by following the rule in paragraph (e) of this section provided 
deeming from your spouse applied in the prior month.
    (3) Eligible individual begins living with an ineligible spouse. If 
you begin to live with your ineligible spouse, we deem your ineligible 
spouse's income to you in the first month thereafter to determine 
whether you continue to be eligible for SSI benefits. If you continue to 
be eligible, we follow the rule in Sec. 416.420(a) to determine your 
benefit amount.
    (4) Ineligible spouse dies. If your ineligible spouse dies, we do 
not deem your spouse's income to you to determine your eligibility for 
SSI benefits beginning with the month following the month of death. In 
determining your benefit amount beginning with the month following the 
month of death, we use only your own countable income in a prior month, 
excluding any income deemed to you in that month from your ineligible 
spouse.
    (5) You become subject to the $30 Federal benefit rate. If you 
become a resident of a medical care facility and the $30 Federal benefit 
rate applies, we do not deem your ineligible spouse's income to you to 
determine your eligibility for SSI benefits beginning with the first 
month for which the $30 Federal benefit rate applies. In determining 
your benefit amount beginning with the first month for which the $30 
Federal benefit rate applies, we use only your own countable income in a 
prior month, excluding any income deemed to you in that month from your 
ineligible spouse.
    (g) Examples. These examples show how we deem income from an 
ineligible spouse to an eligible individual in cases which do not 
involve any of the exceptions in Sec. 416.1160(b)(2). The income, the 
income exclusions, and the allocations are monthly amounts. The Federal 
benefit rates used are those effective January 1, 1986.
    Example 1.  In September 1986, Mr. Todd, an aged individual, lives 
with his ineligible spouse, Mrs. Todd, and their ineligible child, Mike. 
Mr. Todd has a Federal benefit rate of $336 per month. Mrs. Todd 
receives $252 unearned income per month. She has no earned income and 
Mike has no income at all. Before we deem any income, we allocate to 
Mike $168 (the difference between the September Federal benefit rate for 
an eligible couple and the September Federal benefit rate for an 
eligible individual). We subtract the $168 allocation from Mrs. Todd's 
$252 unearned income, leaving $84. Since Mrs. Todd's $84 remaining 
income is not more than $168, which is the difference between the 
September Federal benefit rate for an eligible couple and the September 
Federal benefit rate for an eligible individual, we do not deem any 
income to Mr. Todd. Instead, we compare only Mr. Todd's own countable 
income with the Federal benefit rate for an eligible individual to 
determine whether he is eligible. If Mr. Todd's own countable income is 
less than his Federal benefit rate, he is eligible. To determine the 
amount of his benefit, we determine his countable income, including any 
income deemed from Mrs. Todd, in July and subtract this income from the 
appropriate Federal benefit rate for September.
    Example 2.  In September 1986, Mr. Jones, a disabled individual, 
lives with his ineligible spouse, Mrs. Jones, and ineligible child, 
Christine. Mr. Jones and Christine have no income. Mrs. Jones has earned 
income of $401 a month and unearned income of $252 a month. Before we 
deem any income, we allocate $168 to Christine. We take the $168 
allocation from Mrs. Jones' $252 unearned income, leaving $84 in 
unearned income. Since Mrs. Jones' total remaining income ($84 unearned 
plus $401 earned) is more than $168, which is the difference between the 
September Federal benefit rate for an eligible couple and the September 
Federal benefit rate for an eligible individual, we compute the combined 
countable income as we do for a couple. We apply the $20 general income 
exclusion to the unearned income, reducing it further to $64. We then 
apply the earned income exclusion ($65 plus one-half the remainder) to 
Mrs. Jones' earned income of $401, leaving $168. We combine the $64 
countable unearned income and $168 countable earned income, and compare 
it ($232) with the $504 September Federal benefit rate for a couple, and 
determine that Mr. Jones is eligible. Since Mr. Jones is eligible, we 
determine the amount of his benefit by subtracting his countable income 
in July (including any deemed from Mrs. Jones) from September's Federal 
benefit rate for a couple.
    Example 3.  In September 1986, Mr. Smith, a disabled individual, 
lives with his ineligible spouse, Mrs. Smith, who earns $201 per

[[Page 842]]

month. Mr. Smith receives a pension (unearned income) of $100 a month. 
Since Mrs. Smith's income is greater than $168, which is the difference 
between the September Federal benefit rate for an eligible couple and 
the September Federal benefit rate for an eligible individual, we deem 
all of her income to be available to both Mr. and Mrs. Smith and compute 
the combined countable income for the couple. We apply the $20 general 
income exclusion to Mr. Smith's $100 unearned income, leaving $80. Then 
we apply the earned income exclusion ($65 plus one-half of the 
remainder) to Mrs. Smith's $201, leaving $68. This gives the couple 
total countable income of $148. This is less than the $504 September 
Federal benefit rate for a couple, so Mr. Smith is eligible based on 
deeming. Since he is eligible, we determine the amount of his benefit 
based on his income (including any deemed from Mrs. Smith) in July.
    Example 4.  In September 1986, Mr. Simon has a disabled spouse, Mrs. 
Simon, and has sponsored an eligible alien, Mr. Ollie. Mrs. Simon has 
monthly unearned income of $100 and Mr. Simon has earned income of $405. 
From Mr. Simon's earned income we allocate to Mr. Ollie $168, which is 
the difference between the Federal benefit rate for an eligible couple 
and the rate for an eligible individual. Mr. Ollie has no other income. 
This reduces Mr. Simon's earned income from $405 to $237. Since $237 is 
more than $168 (the difference between the Federal benefit rate for an 
eligible couple and the rate for an eligible individual), we deem all of 
Mr. Simon's remaining income to be available to Mr. and Mrs. Simon and 
compute the combined countable income for the couple. We apply the $20 
general income exclusion to Mrs. Simon's unearned income, leaving $80. 
Then we apply the general earned income exclusion ($65 plus one-half the 
remainder) to Mr. Simon's $237 earned income, leaving $86. This gives 
the couple total income of $166 ($80+$86.). The $166 is less than the 
$504 Federal benefit rate for a couple so Mrs. Simon would be eligible 
based on deeming. Since she is eligible, we determine the amount of her 
benefit based on her income (including any deemed from Mr. Simon) in 
July. For the way we deem Mr. Simon's income to Mr. Ollie, see the rules 
in Sec. 416.1166a.

[45 FR 65547, Oct. 3, 1980, as amended at 50 FR 48576, Nov. 26, 1985; 52 
FR 8883, Mar. 20, 1987; 53 FR 25151, July 5, 1988; 54 FR 19164, May 4, 
1989]



Sec. 416.1165  How we deem income to you from your ineligible parent(s).

    If you are a child living with your parents, we apply the deeming 
rules to you through the month in which you reach age 18. We follow the 
rules in paragraphs (a) through (e) of this section to determine your 
eligibility. To determine your benefit amount, we follow the rules in 
paragraph (f) of this section. The rules in paragraph (g) of this 
section apply to changes in your family situation. Paragraph (i) of this 
section discusses the conditions under which we will not deem your 
ineligible parents' income to you if you are a disabled child living 
with your parents.
    (a) Determining your ineligible parent's income. We first determine 
how much current monthly earned and unearned income your ineligible 
parents have, using the appropriate exclusions in Sec. 416.1161(a).
    (b) Allocations for ineligible children. We next deduct an 
allocation for each ineligible child in the household as described in 
Sec. 416.1163(b).
    (c) Allocations for aliens who are sponsored by and have income 
deemed from your ineligible parent. We also deduct an allocation for 
eligible aliens who have been sponsored by and have income deemed from 
your ineligible parent as described in Sec. 416.1163(c).
    (d) Allocations for your ineligible parent(s). We next deduct 
allocations for your parent(s). We do not deduct an allocation for a 
parent who is receiving public income-maintenance payments (see 
Sec. 416.1142(a)). The allocations are calculated as follows:
    (1) We first deduct $20 from the parents' combined unearned income, 
if any. If they have less than $20 in unearned income, we subtract the 
balance of the $20 from their combined earned income.
    (2) Next, we subtract $65 plus one-half the remainder of their 
earned income.
    (3) We total the remaining earned and unearned income and subtract--
    (i) The Federal benefit rate for the month for a couple if both 
parents live with you; or
    (ii) The Federal benefit rate for the month for an individual if 
only one parent lives with you.
    (e)(1) When you are the only eligible child. If you are the only 
eligible child in the household, we deem any of your parents' current 
monthly income that remains to be your unearned income. We combine it 
with your own unearned income and apply the exclusions in Sec. 416.1124 
to determine your countable

[[Page 843]]

unearned income in the month. We add this to any countable earned income 
you may have and subtract the total from the Federal benefit rate for an 
individual to determine whether you are eligible for benefits.
    (2) When you are not the only eligible child. If your parents have 
more than one eligible child under age 18 in the household, we divide 
the parental income to be deemed equally among those eligible children.
    (3) When one child's income makes that child ineligible. We do not 
deem more income to an eligible child than the amount which, when 
combined with the child's own income, reduces his or her SSI benefit to 
zero. (For purposes of this paragraph, an SSI benefit includes any 
federally administered State supplement). If the share of parental 
income that would be deemed to a child makes that child ineligible 
(reduces the amount to zero) because that child has other countable 
income, we deem any remaining parental income to other eligible children 
under age 18 in the household in the manner described in paragraph 
(e)(2) of this section.
    (f) Determining your SSI benefit. In determining your SSI benefit 
amount we follow the procedure in paragraphs (a) through (d) of this 
section. However, we use your ineligible parents' income in the second 
month prior to the current month. We vary this rule if any of the 
exceptions in Sec. 416.1160(b)(2) applies (for example, if this is the 
first month you are eligible for an SSI benefit or if you are again 
eligible after at least a month of being ineligible). In the first month 
of your eligibility (or re-eligibility) we deem your ineligible parents' 
income in the current month to determine both whether you are eligible 
for a benefit and the amount of your benefit. In the second month, we 
deem your ineligible parents' income in that month to determine whether 
you are eligible for a benefit but we again use your countable income 
(including any that was deemed to you) in the first month to determine 
the amount of your benefit.
    (g) Special rules for a change in status. We have special rules to 
begin or stop deeming your ineligible parents' income to you when a 
change in your family situation occurs.
    (1) Ineligible parent becomes eligible. If your ineligible parent 
becomes eligible for SSI benefits, there will be no income to deem from 
that parent to you to determine your eligibility for SSI benefits 
beginning with the month your parent becomes eligible. However, to 
determine your benefit amount, we follow the rule in Sec. 416.420.
    (2) Eligible parent becomes ineligible. If your eligible parent 
becomes ineligible, we deem your parents' income to you in the first 
month of the parents' ineligibility to determine whether you continue to 
be eligible for SSI benefits. However, if you continue to be eligible, 
in order to determine your benefit amount, we follow the regular rule of 
counting your income in the second month prior to the current month.
    (3) Ineligible parent dies. If your ineligible parent dies, we do 
not deem that parent's income to you to determine your eligibility for 
SSI benefits beginning with the month following the month of death. In 
determining your benefit amount beginning with the month following the 
month of death, we use only your own countable income in a prior month, 
excluding any income deemed to you in that month from your ineligible 
parent (see Sec. 416.1160(b)(2)(B)). However, if you live with two 
ineligible parents, and one dies, we continue to deem income from the 
surviving parent.
    (4) Ineligible parent and you no longer live in the same household. 
If your ineligible parent and you no longer live in the same household, 
we do not deem that parent's income to you to determine your eligibility 
for SSI benefits beginning with the first month following the month in 
which one of you leaves. However (if you continue to be eligible), to 
determine your benefit amount we follow the rule in Sec. 416.420 of 
counting your income including income deemed from your parent in the 
second month prior to the current month.
    (5) Ineligible parent and you begin living in the same household. If 
your ineligible parent and you begin living in the same household, we 
consider that parent's income to determine whether you continue to be 
eligible for SSI benefits

[[Page 844]]

beginning with the month following the month of change. However (if you 
continue to be eligible), to determine your benefit amount, we follow 
the rule in Sec. 416.420 of counting your income in the second month 
prior to the current month.
    (6) You become subject to the $30 Federal benefit rate. If you 
become a resident of a medical care facility and the $30 Federal benefit 
rate applies, we do not deem your ineligible parent's income to you to 
determine your eligibility for SSI benefits beginning with the first 
month for which the $30 Federal benefit rate applies. In determining 
your benefit amount beginning with the first month for which the $30 
Federal benefit rate applies, we only use your own countable income in a 
prior month, excluding any income deemed to you in that month from your 
ineligible parent.
    (7) You attain age 18. In the month following the month in which you 
attain age 18 and thereafter, we do not deem your ineligible parent's 
income to you to determine your eligibility for SSI benefits. In 
determining your benefit amount beginning with the month following your 
attainment of age 18, we only use your own countable income in a prior 
month, excluding any income deemed to you in that month from your 
ineligible parent (see Sec. 416.1160(b)(2)(B)). Your income for the 
current and subsequent months must include any income in the form of 
cash or in-kind support and maintenance provided by your parents. If you 
attain age 18 and stop living in the same household with your ineligible 
parent, these rules take precedence over paragraph (g)(4) of this 
section which requires continued use of deemed income in the benefit 
computation for 2 months following the month you no longer live in the 
same household.
    (h) Examples. These examples show how we deem an ineligible parent's 
income to an eligible child when none of the exceptions in 
Sec. 416.1160(b)(2) applies. The Federal benefit rates are those 
effective January 1, 1992.
    Example 1.  Henry, a disabled child, lives with his mother and 
father and a 12-year-old ineligible brother. His mother receives a 
pension (unearned income) of $365 per month and his father earns $1,165 
per month. Henry and his brother have no income. First we deduct an 
allocation of $211 for Henry's brother from the unearned income. This 
leaves $154 in unearned income. We reduce the remaining unearned income 
further by the $20 general income exclusion, leaving $134. We then 
reduce the earned income of $1,165 by $65 leaving $1,100. Then we 
subtract one-half of the remainder, leaving $550. To this we add the 
remaining unearned income of $134 resulting in $684. From this, we 
subtract the parent allocation of $633 (the Federal benefit rate for a 
couple) leaving $51 to be deemed as Henry's unearned income. Henry has 
no other income. We apply Henry's $20 general income exclusion which 
reduces his countable income to $31. Since that amount is less than the 
$422 Federal benefit rate for an individual, Henry is eligible. We 
determine his benefit amount by subtracting his countable income 
(including deemed income) in a prior month from the Federal benefit rate 
for an individual for the current month. See Sec. 416.420.
    Example 2.  James and Tony are disabled children who live with their 
mother. The children have no income but their mother receives $542 a 
month in unearned income. We reduce the unearned income by the $20 
general income exclusion, leaving $522. We then subtract the amount we 
allocate for the mother's needs, $422 (the Federal benefit rate for an 
individual). The amount remaining to be deemed to James and Tony is 
$100, which we divide equally between them resulting in $50 deemed 
unearned income to each child. We then apply the $20 general income 
exclusion, leaving each child with $30 countable income. The $30 of 
unearned income is less than the $422 Federal benefit rate for an 
individual, so the children are eligible. We then determine each child's 
benefit by subtracting his countable income (including deemed income) in 
a prior month from the Federal benefit rate for an individual for the 
current month. See Sec. 416.420.
    Example 3.  Mrs. Jones is the ineligible mother of two disabled 
children, Beth and Linda, and has sponsored an eligible alien, Mr. Sean. 
Beth, Linda, and Mr. Sean have no income; Mrs. Jones has unearned income 
of $924 per month. We reduce the mother's unearned income by the $211 
allocation for Mr. Sean, leaving $713. We further reduce her income by 
the $20 general income exclusion, which leaves a balance of $693. Next, 
we subtract the amount we allocate for the mother's needs, $422 (the 
amount of the Federal benefit rate for an individual). The balance of 
$271 to be deemed is divided equally between Beth and Linda. Each now 
has unearned income of $135.50 from which we deduct the $20 general 
income exclusion, leaving each child with $115.50 countable income. 
Since this is less than the $422 Federal benefit rate for an individual, 
the girls are eligible. We then determine each child's benefit

[[Page 845]]

by subtracting her countable income (including deemed income) in a prior 
month from the Federal benefit rate for an individual for the current 
month. See Sec. 416.420. (For the way we deem the mother's income to Mr. 
Sean, see examples No. 3 and No. 4 in Sec. 416.1166a.)
    Example 4.  Jack, a disabled child, lives with his mother, father, 
and two brothers, none of whom are eligible for SSI. Jack's mother 
receives a private pension of $350 per month and his father works and 
earns $1,525 per month. We allocate a total of $422 for Jack's 
ineligible brothers and subtract this from the parents' total unearned 
income of $350; the parents' unearned income is completely offset by the 
allocations for the ineligible children with an excess allocation of $72 
remaining. We subtract the excess of $72 from the parents' total earned 
income leaving $1,453. We next subtract the combined general income and 
earned income exclusions of $85 leaving a remainder of $1,368. We 
subtract one-half the remainder, leaving $684 from which we subtract the 
parents' allocation of $633. This results in $51 deemed to Jack. Jack 
has no other income, so we subtract the general income exclusion of $20 
from the deemed income leaving $31 as Jack's countable income. Since 
this is below the $422 Federal benefit rate for an individual, Jack is 
eligible. We determine his payment amount by subtracting his countable 
income (including deemed income) in a prior month from the Federal 
benefit rate for an individual for the current month. See Sec. 416.420.
    (i) Disabled child under age 18. If you are a disabled child under 
the age of 18 living with your parents, we will not deem your parents' 
income to you if--
    (1) You previously received a reduced SSI benefit while a resident 
of a medical facility, as described in Sec. 416.414;
    (2) You are eligible for medical assistance under a Medicaid State 
home care plan approved by the Secretary under the provisions of section 
1915(c) or authorized under section 1902(e)(3) of the Act; and
    (3) You would otherwise be ineligible for a Federal SSI benefit 
because of the deeming of your parents' income or resources.

[52 FR 8885, Mar. 20, 1987, as amended at 54 FR 19164, May 4, 1989; 57 
FR 48562, Oct. 27, 1992; 60 FR 361, Jan. 4, 1995; 62 FR 1056, Jan. 8, 
1997]



Sec. 416.1166  How we deem income to you and your eligible child from your ineligible spouse.

    If you and your eligible child live in the same household with your 
ineligible spouse, we deem your ineligible spouse's income first to you, 
and then we deem any remainder to your eligible child. For the purpose 
of this section, SSI benefits include any federally administered State 
supplement. We then follow the rules in Sec. 416.1165(e) to determine 
the child's eligibility for SSI benefits and in Sec. 416.1165(f) to 
determine the benefit amount.
    (a) Determining your ineligible spouse's income. We first determine 
how much earned and unearned income your ineligible spouse has, using 
the appropriate exclusions in Sec. 416.1161(a).
    (b) Allocations for ineligible children. We next deduct an 
allocation for each ineligible child in the household as described in 
Sec. 416.1163(b).
    (c) Allocations for aliens who are sponsored by and have income 
deemed from your ineligible spouse. We also deduct an allocation for 
eligible aliens who have been sponsored by and have income deemed from 
your ineligible spouse as described in Sec. 416.1163(c).
    (d) Determining your eligibility for SSI benefits and benefit 
amount. We then follow the rules in Sec. 416.1163(c) to find out if any 
of your ineligible spouse's current monthly income is deemed to you and, 
if so, to determine countable income for a couple. Next, we follow (d) 
below to determine your child's eligibility. However, if none of your 
spouse's income is deemed to you, none is deemed to your child. Whether 
or not your spouse's income is deemed to you in determining your 
eligibility, we determine your benefit amount as explained in 
Sec. 416.1163(d).
    (e) Determining your child's eligibility and amount of benefits. (1) 
If you are eligible for SSI benefits after your spouse's income has been 
deemed to you, we do not deem any income to your child. To determine the 
child's eligibility, we subtract the child's own countable income 
without deeming from the benefit rate for an individual.
    (2) If you are not eligible for SSI benefits after your ineligible 
spouse's income has been deemed to you, we deem to your eligible child 
any of your spouse's income which was not used to reduce your SSI 
benefits to zero.
    (f) Examples. These examples show how we deem income to an eligible 
individual and an eligible child in the

[[Page 846]]

same household. The Federal benefit rates used are those effective 
January 1, 1984.
    Example 1.  Mary, a blind individual, lives with her husband, John, 
and their disabled child, Peter. Mary and Peter have no income, but John 
is employed and earns $605 per month. We determine Mary's eligibility 
first. Since John's income is more than $157, which is one-half of the 
Federal benefit rate for an eligible individual, we treat the entire 
$605 as earned income available to John and Mary as a couple. Because 
they have no unearned income, we reduce the $605 by the $20 general 
income exclusion, and then by the earned income exclusion of $65 plus 
one-half the remainder. This leaves John and Mary with $260 in countable 
income. The $260 countable income is less than the $472 Federal benefit 
rate for a couple, so Mary is eligible; therefore, there is no income to 
be deemed to Peter.
    Example 2.  Al, a disabled individual, resides with his ineligible 
spouse, Dora, and their disabled son, Jeff. Al and Jeff have no income, 
but Dora is employed and earns $1,065 a month. Since Dora's income is 
more than $157, which is one-half of the Federal benefit rate for an 
eligible individual, we treat the entire $1,065 as earned income 
available to Al and Dora as a couple. We reduce this income by the $20 
general income exclusion and then by $65 plus one-half the remainder 
(earned income exclusion), leaving $490 in countable income. Al is 
ineligible because the couple's $490 countable income exceeds the $472 
Federal benefit rate for a couple. Since Al is ineligible, we deem to 
Jeff $18, the amount of income over and above the amount which causes Al 
to be ineligible (the difference between the countable income and the 
Federal benefit rate for a couple). We treat the $18 deemed to Jeff as 
unearned income, and we apply the $20 general income exclusion, reducing 
Jeff's countable income to zero. Jeff is eligible.

[45 FR 65547, Oct. 3, 1980, as amended at 50 FR 48578, Nov. 26, 1985; 52 
FR 8887, Mar. 20, 1987]



Sec. 416.1166a  How we deem income to you from your sponsor if you are an alien.

    Before we deem your sponsor's income to you if you are an alien, we 
determine how much earned and unearned income your sponsor has under 
Sec. 416.1161(b). We then deduct allocations for the sponsor and the 
sponsor's dependents. This is an amount equal to the Federal benefit 
rate for an individual for the sponsor (or for each sponsor even if two 
sponsors are married to each other and living together) plus an amount 
equal to one-half the Federal benefit rate for an eligible individual 
for each dependent of the sponsor. An ineligible dependent's income is 
not subtracted from the sponsor's dependent's allocation. We deem the 
balance of the income to be your unearned income.
    (a) If you are the only alien applying for or already eligible for 
SSI benefits who has income deemed to you from your sponsor. If you are 
the only alien who is applying for or already eligible for SSI benefits 
and who is sponsored by your sponsor, all the deemed income is your 
unearned income.
    (b) If you are not the only alien who is applying for or already 
eligible for SSI benefits and who has income deemed from your sponsor. 
If you and other aliens applying for or already eligible for SSI 
benefits are sponsored by the same sponsor, we deem the income to each 
of you as though you were the only alien sponsored by that person. The 
income deemed to you becomes your unearned income.
    (c) When you are an alien and income is no longer deemed from your 
sponsor. If you are an alien and have had your sponsor's income deemed 
to you, we stop deeming the income with the month in which the third 
anniversary of your admission into the United States occurs.
    (d) When sponsor deeming rules do not apply to you if you are an 
alien. If you are an alien, we do not apply the sponsor deeming rules to 
you if--
    (1) You are a refugee. You are a refugee admitted to the United 
States as the result of application of one of three sections of the 
Immigration and Nationality Act: (1) Section 203(a)(7), effective before 
April 1, 1980; (2) Section 207(c)(1), effective after March 31, 1980; or 
(3) Section 212(d)(5);
    (2) You have been granted asylum. You have been granted political 
asylum by the Attorney General of the United States; or
    (3) You become blind or disabled. If you become blind or disabled as 
defined in Sec. 416.901 (at any age) after your admission to the United 
States, we do not deem your sponsor's income to you to determine your 
eligibility for SSI benefits beginning with the month in

[[Page 847]]

which your disability or blindness begins. However, to determine your 
benefit payment, we follow the rule in Sec. 416.420 of counting your 
income in the second month prior to the current month.
    (e) Examples. These examples show how we deem a sponsor's income to 
an eligible individual who is an alien when none of the exceptions in 
Sec. 416.1160(b)(2) applies. The income, income exclusions, and the 
benefit rates are in monthly amounts. The Federal benefit rates are 
those effective January 1, 1986.
    Example 1.  Mr. John, an alien who has no income, has been sponsored 
by Mr. Herbert who has monthly earned income of $1,300 and unearned 
income of $70. Mr. Herbert's wife and three children have no income. We 
add Mr. Herbert's earned and unearned income for a total of $1,370 and 
apply the allocations for the sponsor and his dependents. Allocations 
total $1,008. These are made up of $336 (the Federal benefit rate for an 
eligible individual) for the sponsor, plus $672 (one-half the Federal 
benefit rate for an eligible individual, $168 each) for Mr. Herbert's 
wife and three children. The $1,008 is subtracted from Mr. Herbert's 
total income of $1,370 which leaves $362 to be deemed to Mr. John as his 
unearned income. Mr. John's only exclusion is the $20 general income 
exclusion. Since the $342 balance exceeds the $336 Federal benefit rate, 
Mr. John is ineligible.
    Example 2.  Mr. and Mrs. Smith are an alien couple who have no 
income and who have been sponsored by Mr. Hart. Mr. Hart has earned 
income of $1,350 and his wife, Mrs. Hart, who lives with him, has earned 
income of $150. Their two children have no income. We combine Mr. and 
Mrs. Hart's income ($1,350+$150=$1,500). We deduct the allocations of 
$336 for Mr. Hart (the Federal benefit rate for an individual) and $504 
for Mrs. Hart and the two children ($168 or one-half the Federal benefit 
rate for an eligible individual for each), a total of $840. The 
allocations ($840) are deducted from the total $1,500 income which 
leaves $660. This amount must be deemed independently to Mr. and Mrs. 
Smith. Mr. and Mrs. Smith would qualify for SSI benefits as a couple in 
the amount of $504 if no income had been deemed to them. The $1,320 
($660 each to Mr. and Mrs. Smith) deemed income is unearned income to 
Mr. and Mrs. Smith and is subject to the $20 general income exclusion, 
leaving $1,300. This exceeds the couple's rate of $504 so Mr. and Mrs. 
Smith are ineligible for SSI benefits.
    Example 3.  Mr. Bert and Mr. Davis are aliens sponsored by their 
sister Mrs. Jean, who has earned income of $800. She also receives $250 
as survivors' benefits for her two minor children. We do not consider 
the $250 survivors' benefits to be Mrs. Jean's income because it is the 
children's income. We exclude $336 for Mrs. Jean (the Federal benefit 
rate for an individual) plus $336 ($168, one-half the Federal benefit 
rate for an eligible individual for each child), a total of $672. We 
subtract the $672 from Mrs. Jean's income of $800, which leaves $128 to 
be deemed to Mr. Bert and Mr. Davis. Each of the brothers is liable for 
rent in the boarding house (a commercial establishment) where they live. 
Each lives in his own household, receives no in-kind support and 
maintenance, and is eligible for the Federal benefit rate of $336. The 
$128 deemed income is deemed both to Mr. Bert and to Mr. Davis. As a 
result, each has countable income of $108 ($128 minus the $20 general 
income exclusion). This is less than $336, the Federal benefit rate for 
an individual, so that both are eligible for SSI. We use their income in 
a prior month to determine their benefit payments.
    Example 4.  The same situation applies as in example 3 except that 
one of Mrs. Jean's children is disabled and eligible for SSI benefits. 
The eligibility of the disabled child does not affect the amount of 
income deemed to Mr. Bert and Mr. Davis since the sponsor-to-alien and 
parent-to-child rules are applied independently. The child's countable 
income is computed under the rules in Sec. 416.1165.

[52 FR 8887, Mar. 20, 1987]



Sec. 416.1167  Temporary absences and deeming rules.

    (a) General. During a temporary absence, we continue to consider the 
absent person a member of the household. A temporary absence occurs 
when--
    (1) You, your ineligible spouse, parent, or an ineligible child 
leaves the household but intends to and does return in the same month or 
the month immediately following; or
    (2) You enter a medical care facility and are eligible for either 
benefit payable under Sec. 416.212. We consider your absence to be 
temporary through the last month benefits under Sec. 416.212 were paid 
unless you were discharged from the facility in the following month. In 
that case, we consider your absence to be temporary through the date of 
discharge.
    (b) Child away at school. If you are an eligible child who is away 
at school but comes home on some weekends or lengthy holidays and if you 
are subject to the control of your parents, we consider you temporarily 
absent from your parents' household. However, if you are not subject to 
parental control, we do

[[Page 848]]

not consider your absence temporary and we do not deem parental income 
(or resources) to you. Being subject to parental control affects deeming 
to you only if you are away at school.

[50 FR 48579, Nov. 26, 1985, as amended at 61 FR 10280, Mar. 13, 1996]



Sec. 416.1168  How we deem income to you from your essential person.

    (a) Essential person's income. If you have an essential person, we 
deem all of that person's income (except any not counted because of 
other Federal statutes as described in Sec. 416.1161(b)) to be your own 
unearned income. If your essential person is also your ineligible 
spouse, or if you are a child whose essential person is your ineligible 
parent, we apply the essential person deeming rules in this section. See 
Sec. 416.1169 for the rules that apply when an ineligible spouse or 
parent ceases to be your essential person.
    (b) Determining your eligibility for an SSI benefit. We apply the 
exclusions to which you are entitled under Secs. 416.1112 and 416.1124 
to your earned income and to your unearned income which includes any 
income deemed from your essential person. After combining the remaining 
amounts of countable income, we compare the total with the Federal 
benefit rate for a qualified individual (see Sec. 416.413) to determine 
whether you are eligible for an SSI benefit.
    (c) Determining your SSI benefit amount. We determine your SSI 
benefit amount in the same way that we determine your eligibility. 
However, in following the procedure in paragraphs (a) and (b) of this 
section we use your essential person's income that we deemed to you in 
the second month prior to the current month. Exception: Beginning with 
the month in which you no longer have your essential person, we do not 
use any of the income deemed to you from that essential person in a 
prior month to determine the amount of your benefit (see 
Sec. 416.1160(a)(3)(ii)(C)). We use only your own countable income in a 
prior month.

[45 FR 65547, Oct. 3, 1980, as amended at 50 FR 48579, Nov. 26, 1985]



Sec. 416.1169  When we stop deeming income from an essential person.

    If including the income deemed to you from your essential person 
causes you to be ineligible for an SSI benefit, you are no longer 
considered to have that essential person whose income makes you 
ineligible. To determine your eligibility for that month we deduct only 
your own countable income from your Federal benefit rate. However, other 
deeming rules may then apply as follows:
    (a) Essential person is your spouse. If the person who was your 
essential person is your ineligible spouse, we apply the deeming rules 
in Sec. 416.1163 beginning with the month that the income of your 
essential person is no longer deemed to you.
    (b) Essential person is your parent. If you are a child under age 
18, and the person who was your essential person is your ineligible 
parent, we apply the deeming rules in Sec. 416.1165 beginning with the 
month that the income of your essential person is no longer deemed to 
you.

[50 FR 48579, Nov. 26, 1985]

     Alternative Income Counting Rules for Certain Blind Individuals



Sec. 416.1170  General.

    (a) What the alternative is. If you are blind and meet the 
requirements in Sec. 416.1171, we use one of two rules to see how much 
countable income you have. We use whichever of the following rules 
results in the lower amount of countable income:
    (1) The SSI income exclusions in Secs. 416.1112 and 416.1124; or
    (2) The disregards that would have applied under the State plan for 
October 1972.
    (b) State plan. As used in this subpart, State plan for October 1972 
means a State plan for providing assistance to the blind under title X 
or XVI (AABD) of the Social Security Act. That plan must have been 
approved under the provisions of 45 CFR Chapter II as in effect for 
October 1972.



Sec. 416.1171  When the alternative rules apply.

    (a) Eligibility for the alternative. We use the alternative income 
counting

[[Page 849]]

rules for you if you meet all the following conditions:
    (1) You were eligible for, and received, assistance for December 
1973 under a State plan for October 1972;
    (2) You have continued to live in that same State since December 
1973;
    (3) You were transferred to the SSI rolls and received a benefit for 
January 1974; and
    (4) You have not been ineligible for an SSI benefit for any period 
of more than 6 consecutive months. (For purposes of this section, an SSI 
benefit means a Federal benefit; it does not include any State 
supplementation.)
    (b) Living in the same State. For purposes of this section, you have 
continued to live in the same State since December 1973 unless you have 
left it at any time with the intention of moving to another State. If 
there is no evidence to the contrary, we assume that--
    (1) If you leave the State for 90 calendar days or less, the absence 
is temporary and you still live in that State; and
    (2) If you leave the State for more than 90 calendar days, you are 
no longer living there.

  Rules for Helping Blind and Disabled Individuals Achieve Self-Support



Sec. 416.1180  General.

    One of the objectives of the SSI program is to help blind or 
disabled persons become self-supporting. If you are blind or disabled, 
we will pay you SSI benefits and will not count the part of your income 
that you use of set aside to use under a plan to become self-supporting. 
(See Secs. 416.1112(c)(8) and 1124(c)(13).) You may develop a plan for 
achieving self-support on your own or with our help. As appropriate, we 
will refer you to a State rehabilitation agency or agency for the blind 
for additional assistance in developing a plan.

[45 FR 65547, Oct. 3, 1980, as amended at 51 FR 10616, Mar. 28, 1986]



Sec. 416.1181  What a plan to achieve self-support is.

    A plan to achieve self-support must--
    (a) Be designed especially for you;
    (b) Be in writing;
    (c) Be approved by us (a change of plan must also be approved);
    (d) Be designed for an initial period of not more than 18 months. We 
may extend the period for up to another 18 months if you cannot complete 
the plan in the first period. We may allow a total of up to 48 months to 
fulfill a plan for a lengthy education or training program;
    (e) Show your specific occupational goal;
    (f) Show what money you have and will receive, how you will spend 
it, and how you will use it to attain your occupational goal; and
    (g) Show how the money you set aside under the plan will be 
separated from your other funds.



Sec. 416.1182  When we begin to count the income excluded under the plan.

    We will begin to count the earned and unearned income that would 
have been excluded under your plan in the month in which any of the 
following circumstances first exist:
    (a) You fail to follow the conditions of your plan;
    (b) You abandon your plan;
    (c) You complete the time schedule outlined in the plan; or
    (d) You reach your goal as outlined in the plan.

[45 FR 65547, Oct. 3, 1980, as amended at 50 FR 48579, Nov. 26, 1985]

  Appendix to Subpart K of Part 416--List of Types of Income Excluded 
Under the SSI Program as Provided by Federal Laws Other Than the Social 
                              Security Act

    Many Federal statutes in addition to the Social Security Act provide 
assistance or benefits for individuals and specify that the assistance 
or benefit will not be considered in deciding eligibility for SSI. We 
have listed these statutes in this appendix and have placed them in 
categories according to the kind of income or assistance they provide. 
The list gives the name of the Federal statute (where possible), the 
public law number, and the citation. Each item briefly describes what 
the statute provides that will not reduce or eliminate an SSI payment. 
More detailed information is available from a social security office or 
by reference to the statutes.
    We update this list periodically. However, when new Federal statutes 
of this kind are enacted, or existing statutes are changed, we

[[Page 850]]

apply the law currently in effect, even before this appendix is updated.

                                 I. Food

    (a) Value of food coupons under the Food Stamp Act of 1977, section 
1301 of Pub. L. 95-113 (91 Stat. 968, 7 U.S.C. 2017(b)).
    (b) Value of federally donated foods distributed under section 32 of 
Pub. L. 74-320 (49 Stat. 774) or section 416 of the Agriculture Act of 
1949 (63 Stat. 1058, 7 CFR 250.6(e)(9)).
    (c) Value of free or reduced price food for women and children under 
the--
    (1) Child Nutrition Act of 1966, section 11(b) of Pub. L. 89-642 (80 
Stat. 889, 42 U.S.C. 1780(b)) and section 17 of that Act as added by 
Pub. L. 92-433 (86 Stat. 729, 42 U.S.C. 1786); and
    (2) National School Lunch Act, section 13(h)(3), as amended by 
section 3 of Pub. L. 90-302 (82 Stat. 119, 42 U.S.C. 1761(h)(3)).
    (d) Services, except for wages paid to residents who assist in 
providing congregate services such as meals and personal care, provided 
a resident of an eligible housing project under a congregate services 
program under section 802 of the Cranston-Gonzales National Affordable 
Housing Act, Public Law 101-625 (104 Stat. 4313, 42 U.S.C. 8011).

                        II. Housing and Utilities

    (a) Assistance to prevent fuel cut-offs and to promote energy 
efficiency under the Emergency Energy Conservation Services Program or 
the Energy Crisis Assistance Program as authorized by section 222(a)(5) 
of the Economic Opportunity Act of 1964, as amended by section 5(d)(1) 
of Pub. L. No. 93-644 and section 5(a)(2) of Pub. L. 95-568 (88 Stat. 
2294 as amended, 42 U.S.C. 2809(a)(5)).
    (b) Home energy assistance payments or allowances under title XXVI 
of the Omnibus Budget Reconciliation Act of 1981, Public Law 97-35, as 
amended (42 U.S.C. 8624(f)).

    Note.--  This exclusion applies to a sponsor's income only if the 
alien is living in the housing unit for which the sponsor receives the 
home energy assistance payments or allowances.

    (c) Value of any assistance paid with respect to a dwelling unit 
under--
    (1) The United States Housing Act of 1937;
    (2) The National Housing Act;
    (3) Section 101 of the Housing and Urban Development Act of 1965; or
    (4) Title V of the Housing Act of 1949.

    Note.--  This exclusion applies to a sponsor's income only if the 
alien is living in the housing unit for which the sponsor receives the 
housing assistance.

    (d) Payments for relocating, made to persons displaced by Federal or 
federally assisted programs which acquire real property, under section 
216 of Pub. L. 91-646, the Uniform Relocation Assistance and Real 
Property Acquisition Policies Act of 1970 (84 Stat. 1902, 42 U.S.C. 
4636).

                      III. Education and Employment

    (a) Grants or loans to undergraduate students made or insured under 
programs administered by the Secretary of Education under section 507 of 
the Higher Education Amendments of 1968, Pub. L. 90-575 (82 Stat. 1063).
    (b) Any wages, allowances, or reimbursement for transportation and 
attendant care costs, unless excepted on a case-by-case basis, when 
received by an eligible handicapped individual employed in a project 
under title VI of the Rehabilitation Act of 1973 as added by title II of 
Pub. L. 95-602 (92 Stat. 2992, 29 U.S.C. 795(b)(c)).
    (c) Student financial assistance for attendance costs received from 
a program funded in whole or in part under title IV of the Higher 
Education Act of 1965, as amended, or under Bureau of Indian Affairs 
student assistance programs if it is made available for tuition and fees 
normally assessed a student carrying the same academic workload, as 
determined by the institution, including costs for rental or purchase of 
any equipment, materials, or supplies required of all students in the 
same course of study and an allowance for books, supplies, 
transportation, and miscellaneous personal expenses for a student 
attending the institution on at least a half-time basis, as determined 
by the institution, under section 14(27) of Public Law 100-50, the 
Higher Education Technical Amendments Act of 1987 (20 U.S.C. 1087uu).

                          IV. Native Americans

    (a) Distributions received by an individual Alaska Native or 
descendant of an Alaska Native from an Alaska Native Regional and 
Village Corporation pursuant to the Alaska Native Claims Settlement Act, 
as follows: Cash, including cash dividends on stock received from a 
Native Corporation, to the extent that it does not, in the aggregate, 
exceed $2,000 per individual each year; stock, including stock issued or 
distributed by a Native Corporation as a dividend or distribution on 
stock; a partnership interest; land or an interest in land, including 
land or an interest in land received from a Native Corporation as a 
dividend or distribution on stock; and an interest in a settlement 
trust. This exclusion is pursuant to section 15 of the Alaska Native 
Claims Settlement Act Amendments of 1987, Public Law 100-241 (43 U.S.C. 
1626(c)), effective February 3, 1988.

    Note.--  This exclusion does not apply in deeming income from 
sponsors to aliens.

    (b) Indian tribes--Distribution of per capita judgment funds to 
members of--
    (1) The Blackfeet and Gros Ventre Tribes under section 4 of Pub. L. 
No. 92-254 (86 Stat.

[[Page 851]]

265, 25 U.S.C. 1264) and under section 6 of Pub. L. No. 97-408 (96 Stat. 
2036);
    (2) The Papago Tribe of Arizona Indians under section 8(d) of Pub. 
L. No. 97-408 (96 Stat. 2038);
    (3) The Grand River Band of Ottawa Indians in Indian Claims 
Commission docket numbered 40-K under section 6 of Pub. L. No. 94-540 
(90 Stat. 2504);

    Note.--  This exclusion applies to the income of sponsors of aliens 
only if the alien lives in the sponsor's household.

    (4) The Yakima Indian Nation or the Apache Tribe of the Mescalero 
Reservation as authorized by section 2 of Pub. L. No. 95-433 (92 Stat. 
1047, 25 U.S.C. 609c-1);
    (5) The Wyandot Tribe of Indians under section 6 of Pub. L. No. 97-
371 (96 Stat. 1814, 42 U.S.C. 1305);
    (6) The Shawnee Tribe of Indians under section 7 of Pub. L. No. 97-
372 (96 Stat. 1816, 42 U.S.C. 1305);
    (7) The Indians of the Miami Tribe of Oklahoma and Indiana under 
section 7 of Pub. L. No. 97-376 (96 Stat. 1829, 42 U.S.C. 1305);
    (8) The Clallam Tribe of Indians under section 6 of Pub. L. No. 97-
402 (96 Stat. 2021);
    (9) The Pembina Chippewa Indians under section 9 of Pub. L. No. 97-
403 (96 Stat. 2025);
    (10) The Confederated Tribes of the Warm Springs Reservation under 
section 4 of Pub. L. No. 97-436 (96 Stat. 2284);

    Note.--  This exclusion applies to the income of sponsors of aliens 
only if the alien lives in the sponsor's household.

    (11) The Red Lake Band of Chippewa Indians under section 3 of Pub. 
L. No. 98-123 (97 Stat. 816); and
    (12) The Assiniboine Tribe of Fort Peck Montana under section 5 of 
Pub. L. No. 98-124 (97 Stat. 818, 42 U.S.C. 1305) and the Assiniboine 
Tribe of Fort Belknap under section 5 of Pub. L. No. 98-124 (97 Stat. 
818, 42 U.S.C. 1305) and section 6 of Pub. L. No. 97-408 (96 Stat. 
2036).
    (c) Receipts from land held in trust by the Federal government and 
distributed to members of certain Indian tribes under section 6 of Pub. 
L. No. 94-114 (89 Stat. 579).

    Note.--  This exclusion applies to the income of sponsors of aliens 
only if the alien lives in the sponsor's household.

    (1) The Pueblo of Santa Ana Indians of New Mexico under section 6 of 
Pub. L. No. 95-498 (92 Stat. 1677, 42 U.S.C. 1305); and
    (2) The Pueblo of Zia Indians of New Mexico under section 6 of Pub. 
L. No. 95-499 (92 Stat. 1680, 42 U.S.C. 1305).
    (d) Revenues from the Maine Indian Claims Settlement Fund and the 
Maine Indian Land Acquisition Fund paid under section 5 of the Maine 
Indian Claims Settlement Act of 1980, Pub. L. No. 96-420 (94 Stat. 1796, 
25 U.S.C. 1728(c)).

    Note.--  This exclusion applies to the income of sponsors of aliens 
only if the alien lives in the sponsor's household.

    (e) Funds, assets, or income under section 6(b) of the Puyallup 
Tribe of Indians Settlement Act of 1989, Public Law 101-41 (25 U.S.C. 
1773h(c)).

    Note.--  This exclusion does not apply in deeming income from 
sponsors to aliens.

    (f) Payments, funds, distributions, or income derived from them 
under section 8(b) of the Seneca Nation Settlement Act of 1990, Public 
Law 101-503 (104 Stat. 1297, 25 U.S.C. 1774f).

    Note.--  This exclusion does not apply in deeming income from 
sponsors to aliens.

    (g) Indian judgment funds that are held in trust by the Secretary of 
the Interior or distributed per capita pursuant to a plan prepared by 
the Secretary of the Interior and not disapproved by a joint resolution 
of the Congress under Public Law 93-134 as amended by Public Law 97-458 
(25 U.S.C. 1407). Indian judgment funds include interest and investment 
income accrued while such funds are so held in trust. This exclusion 
extends to initial purchases made with Indian judgment funds. This 
exclusion does not apply to sales or conversions of initial purchases or 
to subsequent purchases.

    Note.--  This exclusion applies to the income of sponsors of aliens 
only if the alien lives in the sponsor's household.

    (h) All funds held in trust by the Secretary of the Interior for an 
Indian tribe and distributed per capita to a member of that tribe are 
excluded from income under Public Law 98-64 (25 U.S.C. 117b). Funds held 
by Alaska Native Regional and Village Corporations (ANRVC) are not held 
in trust by the Secretary of the Interior and therefore ANRVC dividend 
distributions are not excluded from countable income under this 
exclusion. For ANRVC dividend distributions, see paragraph IV(a) of this 
appendix.

                                V. Other

    (a) Compensation provided volunteers in the foster grandparents 
program and other similar programs, unless determined by the Director of 
the Action Agency to constitute the minimum wage, under sections 404(g) 
and 418 of the Domestic Volunteer Service Act of 1973 (87 Stat. 409, 
413), as amended by Pub. L. No. 96-143; (93 Stat. 1077); 42 U.S.C. 
5044(g) and 5058).

    Note.--  This exclusion does not apply to the income of sponsors of 
aliens.

    (b) Any assistance to an individual (other than wages or salaries) 
under the Older Americans Act of 1965, as amended by section 102(h)(1) 
of Pub. L. 95-478 (92 Stat. 1515, 42 U.S.C. 3020a).
    (c) Amounts paid as restitution to certain individuals of Japanese 
ancestry and Aleuts

[[Page 852]]

for losses suffered as a result of evacuation, relocation, and 
internment during World War II, under the Civil Liberties Act of 1988 
and the Aleutian and Pribilof Islands Restitution Act, sections 105(f) 
and 206(d) of Public Law 100-383 (50 U.S.C. App. 1989 b and c).
    (d) Payments made on or after January 1, 1989, from the Agent Orange 
Settlement Fund or any other fund established pursuant to the settlement 
in the In Re Agent Orange product liability litigation, M.D.L. No. 381 
(E.D.N.Y.) under Public Law 101-201 (103 Stat. 1795) and section 10405 
of Public Law 101-239 (103 Stat. 2489).
    (e) Payments made under section 6 of the Radiation Exposure 
Compensation Act, Public Law 101-426 (104 Stat. 925, 42 U.S.C. 2210).

[45 FR 65547, Oct. 3, 1980, as amended at 52 FR 8888, Mar. 20, 1987; 57 
FR 53851, Nov. 13, 1992; 57 FR 55088, Nov. 24, 1992; 59 FR 8538, Feb. 
23, 1994]



                   Subpart L--Resources and Exclusions

    Authority:  Secs. 702(a)(5), 1602, 1611, 1612, 1613, 1614(f), 1621, 
and 1631 of the Social Security Act (42 U.S.C. 902(a)(5), 1381a, 1382, 
1382a, 1382b, 1382c(f), 1382j, and 1383); sec. 211, Pub. L. 93-66, 87 
Stat. 154 (42 U.S.C. 1382 note).

    Source:  40 FR 48915, Oct. 20, 1975, unless otherwise noted.



Sec. 416.1201  Resources; general.

    (a) Resources; defined. For purposes of this subpart L, resources 
means cash or other liquid assets or any real or personal property that 
an individual (or spouse, if any) owns and could convert to cash to be 
used for his or her support and maintenance.
    (1) If the individual has the right, authority or power to liquidate 
the property or his or her share of the property, it is considered a 
resource. If a property right cannot be liquidated, the property will 
not be considered a resource of the individual (or spouse).
    (2) Support and maintenance assistance not counted as income under 
Sec. 416.1157(c) will not be considered a resource.
    (3) Except for cash reimbursement of medical or social services 
expenses already paid for by the individual, cash received for medical 
or social services that is not income under Sec. 416.1103(a) or (b), or 
a retroactive cash payment which is income that is excluded from deeming 
under Sec. 416.1161(a)(16), is not a resource for the calendar month 
following the month of its receipt. However, cash retained until the 
first moment of the second calendar month following its receipt is a 
resource at that time.
    (i) For purposes of this provision, a retroactive cash payment is 
one that is paid after the month in which it was due.
    (ii) This provision applies only to the unspent portion of those 
cash payments identified in this paragraph (a)(3). Once the cash from 
such payments is spent, this provision does not apply to items purchased 
with the money, even if the period described above has not expired.
    (iii) Unspent money from those cash payments identified in this 
paragraph (a)(3) must be identifiable from other resources for this 
provision to apply. The money may be commingled with other funds, but if 
this is done in such a fashion that an amount from such payments can no 
longer be separately identified, that amount will count toward the 
resource limit described in Sec. 416.1205.
    (4) Death benefits, including gifts and inheritances, received by an 
individual, to the extent that they are not income in accordance with 
paragraphs (e) and (g) of Sec. 416.1121 because they are to be spent on 
costs resulting from the last illness and burial of the deceased, are 
not resources for the calendar month following the month of receipt. 
However, such death benefits retained until the first moment of the 
second calendar month following their receipt are resources at that 
time.
    (b) Liquid resources. Liquid resources are cash or other property 
which can be converted to cash within 20 days, excluding certain nonwork 
days as explained in Sec. 416.120(d). Examples of resources that are 
ordinarily liquid are stocks, bonds, mutual fund shares, promissory 
notes, mortgages, life insurance policies, financial institution 
accounts (including savings, checking, and time deposits, also known as 
certificates of deposit) and similar items. Liquid resources, other than 
cash, are evaluated according to the individual's equity in the 
resources. (See Sec. 416.1208 for the treatment of funds held in 
individual and joint financial institution accounts.)

[[Page 853]]

    (c) Nonliquid resources. (1) Nonliquid resources are property which 
is not cash and which cannot be converted to cash within 20 days 
excluding certain nonwork days as explained in Sec. 416.120(d). Examples 
of resources that are ordinarily nonliquid are loan agreements, 
household goods, automobiles, trucks, tractors, boats, machinery, 
livestock, buildings and land. Nonliquid resources are evaluated 
according to their equity value except as otherwise provided. (See 
Sec. 416.1218 for treatment of automobiles.)
    (2) For purposes of this subpart L, the equity value of an item is 
defined as:
    (i) The price that item can reasonably be expected to sell for on 
the open market in the particular geographic area involved; minus
    (ii) Any encumbrances.

[40 FR 48915, Oct. 20, 1975, as amended at 44 FR 43266, July 24, 1979; 
48 FR 33259, July 21, 1983; 52 FR 4283, Feb. 11, 1987; 52 FR 16845, May 
6, 1987; 53 FR 23231, June 21, 1988; 56 FR 36001, July 30, 1991; 57 FR 
35461, Aug. 10, 1992; 57 FR 55089, Nov. 24, 1992; 59 FR 27988, May 31, 
1994]



Sec. 416.1202  Deeming of resources.

    (a) Married individual. In the case of an individual who is living 
with a person not eligible under this part and who is considered to be 
the husband or wife of such individual under the criteria in 
Secs. 416.1806 and 416.1811, such individual's resources shall be deemed 
to include any resources, not otherwise excluded under this subpart, of 
such spouse whether or not such resources are available to such 
individual. In addition to the exclusions listed in Sec. 416.1210, 
pension funds which the ineligible spouse may have are also excluded. 
Pension funds are defined as funds held in individual retirement 
accounts (IRA), as described by the Internal Revenue Code, or in work-
related pension plans (including such plans for self-employed 
individuals, sometimes referred to as Keogh plans).
    (b) Child--(1) General. In the case of a child (as defined in 
Sec. 416.1856) who is under age 18, such child's resources shall be 
deemed to include any resources, not otherwise excluded under this 
subpart, of an ineligible parent of such child (or the ineligible spouse 
of a parent) who is living in the same household (as defined in 
Sec. 416.1851) as such child, whether or not available to such child, to 
the extent that the resources of such parent (or such spouse of a 
parent) exceed the resource limits described in Sec. 416.1205 except as 
provided in paragraph (b)(2) of this section. (If the child is living 
with only one parent, the resource limit for an individual applies. If 
the child is living with both parents (or one parent and his or her 
spouse), the resource limit for an individual and spouse applies.) In 
addition to the exclusions listed in Sec. 416.1210, pension funds which 
the ineligible parent or spouse of a parent may have are also excluded. 
``Pension funds'' are defined in paragraph (a) of this section. As used 
in this section, the term ``parent'' means the natural or adoptive 
parent of a child and ``spouse of a parent'' means the spouse (as 
defined in Sec. 416.1806) of such natural or adoptive parent.
    (2) Disabled child under age 18. In the case of a disabled child 
under age 18 who is living in the same household with his or her 
parents, the deeming provisions of paragraph (b)(1) of this section 
shall not apply if such child--
    (i) Previously received a reduced SSI benefit while a resident of a 
medical facility, as described in Sec. 416.414;
    (ii) Is eligible for medical assistance under a Medicaid State home 
care plan approved by the Secretary under the provisions of section 
1915(c) or authorized under section 1902(e)(3) of the Act; and
    (iii) Would otherwise be ineligible because of the deeming of his or 
her parents' resources or income.
    (c) Applicability. When used in this subpart L, the term individual 
refers to an eligible aged, blind, or disabled person, and also includes 
a person whose resources are deemed to be the resources of such 
individual (as provided in paragraphs (a) and (b) of this section).

[40 FR 48915, Oct. 20, 1975, as amended at 50 FR 38982, Sept. 26, 1985; 
52 FR 8888, Mar. 20, 1987; 52 FR 29841, Aug. 12, 1987; 52 FR 32240, Aug. 
26, 1987; 60 FR 361, Jan. 4, 1995; 62 FR 1056, Jan. 8, 1997]

[[Page 854]]



Sec. 416.1203  Deeming of resources of an essential person.

    In the case of a qualified individual (as defined in Sec. 416.221) 
whose payment standard has been increased because of the presence of an 
essential person (as defined in Sec. 416.222), the resources of such 
qualified individual shall be deemed to include all the resources of 
such essential person. If such qualified individual would not meet the 
resource criteria for eligibility (as defined in Secs. 416.1205 and 
416.1260) because of the deemed resources, then the payment standard 
increase because of the essential person will be nullified and the 
provision of this section will not apply; essential person status is 
lost permanently. However, if such essential person is an ineligible 
spouse of a qualified individual or a parent (or spouse of a parent) of 
a qualified individual who is a child under age 21, then the resources 
of such person will be deemed to such qualified individual in accordance 
with the provision in Sec. 416.1202.

[39 FR 33797, Sept. 20, 1974, as amended at 51 FR 10616, Mar. 28, 1986]



Sec. 416.1204  Deeming of resources of the sponsor of an alien.

    The resources of an alien who first applies for SSI benefits after 
September 30, 1980, are deemed to include the resources of the alien's 
sponsor for 3 years after the alien's date of admission into the United 
States. The date of admission is the date established by the Immigration 
and Naturalization Service as the date of admission for permanent 
residence. The resources of the sponsor's spouse are included if the 
sponsor and spouse live in the same household. Deeming of these 
resources applies regardless of whether the alien and sponsor live in 
the same household and regardless of whether the resources are actually 
available to the alien. For rules that apply in specific situations, see 
Sec. 416.1166a(d).
    (a) Exclusions from the sponsor's resources. Before we deem a 
sponsor's resources to an alien, we exclude the same kinds of resources 
that are excluded from the resources of an individual eligible for SSI 
benefits. The applicable exclusions from resources are explained in 
Sec. 416.1210 (paragraphs (a) through (i), (k), and (m) through (q)) 
through Sec. 416.1239. For resources excluded by Federal statutes other 
than the Social Security Act, as applicable to the resources of sponsors 
deemed to aliens, see the appendix to subpart K of part 416. We next 
allocate for the sponsor or for the sponsor and spouse (if living 
together). (The amount of the allocation is the applicable resource 
limit described in Sec. 416.1205 for an eligible individual and an 
individual and spouse.)
    (b) An alien sponsored by more than one sponsor. The resources of an 
alien who has been sponsored by more than one person are deemed to 
include the resources of each sponsor.
    (c) More than one alien sponsored by one individual. If more than 
one alien is sponsored by one individual the deemed resources are deemed 
to each alien as if he or she were the only one sponsored by the 
individual.
    (d) Alien has a sponsor and a parent or a spouse with deemable 
resources. Resources may be deemed to an alien from both a sponsor and a 
spouse or parent (if the alien is a child) provided that the sponsor and 
the spouse or parent are not the same person and the conditions for each 
rule are met.
    (e) Alien's sponsor is also the alien's ineligible spouse or parent. 
If the sponsor is also the alien's ineligible spouse or parent who lives 
in the same household, the spouse-to-spouse or parent-to-child deeming 
rules apply instead of the sponsor-to-alien deeming rules. If the spouse 
or parent deeming rules cease to apply, the sponsor deeming rules will 
begin to apply. The spouse or parent rules may cease to apply if an 
alien child reaches age 18 or if either the sponsor who is the 
ineligible spouse or parent, or the alien moves to a separate household.
    (f) Alien's sponsor also is the ineligible spouse or parent of 
another SSI beneficiary. If the sponsor is also the ineligible spouse or 
ineligible parent of an SSI beneficiary other than the alien, the 
sponsor's resources are deemed to the alien under the rules in paragraph 
(a), and to the eligible spouse or child under the rules in 
Secs. 416.1202, 1205, 1234, 1236, and 1237.

[52 FR 8888, Mar. 20, 1987, as amended at 61 FR 1712, Jan. 23, 1996]

[[Page 855]]



Sec. 416.1204a  Deeming of resources where Medicaid eligibility is affected.

    Section 416.1161a of this part describes certain circumstances 
affecting Medicaid eligibility in which the Department will not deem 
family income to an individual. The Department will follow the same 
standards, procedures, and limitations set forth in that section with 
respect to deeming of resources.

[49 FR 5747, Feb. 15, 1984]



Sec. 416.1205  Limitation on resources.

    (a) Individual with no eligible spouse. An aged, blind, or disabled 
individual with no spouse is eligible for benefits under title XVI of 
the Act if his or her nonexcludable resources do not exceed $1,500 prior 
to January 1, 1985, and all other eligibility requirements are met. An 
individual who is living with an ineligible spouse is eligible for 
benefits under title XVI of the Act if his or her nonexcludable 
resources, including the resources of the spouse, do not exceed $2,250 
prior to January 1, 1985, and all other eligibility requirements are 
met.
    (b) Individual with an eligible spouse. An aged, blind, or disabled 
individual who has an eligible spouse is eligible for benefits under 
title XVI of the Act if their nonexcludable resources do not exceed 
$2,250 prior to January 1, 1985, and all other eligibility requirements 
are met.
    (c) Effective January 1, 1985 and later. The resources limits and 
effective dates for January 1, 1985 and later are as follows:

------------------------------------------------------------------------
                                                              Individual
                Effective date                   Individual   and spouse
------------------------------------------------------------------------
Jan. 1, 1985..................................       $1,600       $2,400
Jan. 1, 1986..................................        1,700       $2,550
Jan. 1, 1987..................................        1,800       $2,700
Jan. 1, 1988..................................        1,900       $2,850
Jan. 1, 1989..................................        2,000       $3,000
------------------------------------------------------------------------


[50 FR 38982, Sept. 26, 1985]



Sec. 416.1207  Resources determinations.

    (a) General. Resources determinations are made as of the first 
moment of the month. A resource determination is based on what assets an 
individual has, what their values are, and whether or not they are 
excluded as of the first moment of the month.
    (b) Increase in value of resources. If, during a month, a resource 
increases in value or an individual acquires an additional resource or 
replaces an excluded resource with one that is not excluded, the 
increase in the value of the resources is counted as of the first moment 
of the next month
    (c) Decrease in value of resources. If, during a month, a resource 
decreases in value or an individual spends a resource or replaces a 
resource that is not excluded with one that is excluded, the decrease in 
the value of the resources is counted as of the first moment of the next 
month.
    (d) Treatment of items under income and resource counting rules. 
Items received in cash or in kind during a month are evaluated first 
under the income counting rules and, if retained until the first moment 
of the following month, are subject to the rules for counting resources 
at that time.
    (e) Receipts from the sale, exchange, or replacement of a resource. 
If an individual sells, exchanges or replaces a resource, the receipts 
are not income. They are still considered to be a resource. This rule 
includes resources that have never been counted as such because they 
were sold, exchanged or replaced in the month in which they were 
received. See Sec. 416.1246 for the rule on resources disposed of for 
less than fair market value (including those disposed of during the 
month of receipt).
    Example:  Miss L., a disabled individual, receives a $350 
unemployment insurance benefit on January 10, 1986. The benefit is 
unearned income to Miss L. when she receives it. On January 14, Miss L. 
uses the $350 payment to purchase shares of stock. Miss L. has exchanged 
one item (cash) for another item (stock). The $350 payment is never 
counted as a resource to Miss L. because she exchanged it in the same 
month she received it. The stock is not income; it is a different form 
of a resource exchanged for the cash. Since a resource is not countable 
until the first moment of the month following its receipt, the stock is 
not a countable resource to Miss L. until February 1.

[52 FR 4283, Feb. 11, 1987]



Sec. 416.1208  How funds held in financial institution accounts are counted.

    (a) General. Funds held in a financial institution account 
(including savings,

[[Page 856]]

checking, and time deposits, also known as certificates of deposit) are 
an individual's resource if the individual owns the account and can use 
the funds for his or her support and maintenance. We determine whether 
an individual owns the account and can use the funds for his or her 
support and maintenance by looking at how the individual holds the 
account. This is reflected in the way the account is titled.
    (b) Individually-held account. If an individual is designated as 
sole owner by the account title and can withdraw funds and use them for 
his or her support and maintenance, all of the funds, regardless of 
their source, are that individual's resource. For as long as these 
conditions are met, we presume that the individual owns 100 percent of 
the funds in the account. This presumption is non-rebuttable.
    (c) Jointly-held account--(1) Account holders include one or more 
SSI claimants or recipients. If there is only one SSI claimant or 
recipient account holder on a jointly held account, we presume that all 
of the funds in the account belong to that individual. If there is more 
than one claimant or recipient account holder, we presume that all the 
funds in the account belong to those individuals in equal shares.
    (2) Account holders include one or more deemors. If none of the 
account holders is a claimant or recipient, we presume that all of the 
funds in a jointly-held account belong to the deemor(s), in equal shares 
if there is more than one deemor. A deemor is a person whose income and 
resources are required to be considered when determining eligibility and 
computing the SSI benefit for an eligible individual (see Secs. 416.1160 
and 416.1202).
    (3) Right to rebut presumption of ownership. If the claimant, 
recipient, or deemor objects or disagrees with an ownership presumption 
as described in paragraph (c)(1) or (c)(2) of this section, we give the 
individual the opportunity to rebut the presumption. Rebuttal is a 
procedure as described in paragraph (c)(4) of this section, which 
permits an individual to furnish evidence and establish that some or all 
of the funds in a jointly-held account do not belong to him or her. 
Successful rebuttal establishes that the individual does not own some or 
all of the funds. The effect of successful rebuttal may be retroactive 
as well as prospective.
    Example:  The recipient's first month of eligibility is January 
1993. In May 1993 the recipient successfully establishes that none of 
the funds in a 5-year-old jointly-held account belong to her. We do not 
count any of the funds as resources for the months of January 1993 and 
continuing.
    (4) Procedure for rebuttal. To rebut an ownership presumption as 
described in paragraph (c)(1) or (c)(2) of this section, the individual 
must:
    (i) Submit his/her statement, along with corroborating statements 
from other account holders, regarding who owns the funds in the joint 
account, why there is a joint account, who has made deposits to and 
withdrawals from the account, and how withdrawals have been spent;
    (ii) Submit account records showing deposits, withdrawals, and 
interest (if any) in the months for which ownership of funds is at 
issue; and
    (iii) Correct the account title to show that the individual is no 
longer a co-owner if the individual owns none of the funds; or, if the 
individual owns only a portion of the funds, separate the funds owned by 
the other account holder(s) from his/her own funds and correct the 
account title on the individual's own funds to show they are solely-
owned by the individual.

[59 FR 27989, May 31, 1994]



Sec. 416.1210  Exclusions from resources; general.

    In determining the resources of an individual (and spouse, if any) 
the following items shall be excluded:
    (a) The home (including the land appertaining thereto) to the extent 
its value does not exceed the amount set forth in Sec. 416.1212;
    (b) Household goods and personal effects to the extent that their 
total value does not exceed the amount provided in Sec. 416.1216;
    (c) An automobile to the extent that its value does not exceed the 
amount provided in Sec. 416.1218;
    (d) Property of a trade or business which is essential to the means 
of self-support as provided in Sec. 416.1222;
    (e) Nonbusiness property which is essential to the means of self-
support as provided in Sec. 416.1224;

[[Page 857]]

    (f) Resources of a blind or disabled individual which are necessary 
to fulfill an approved plan for achieving self-support as provided in 
Sec. 416.1226;
    (g) Stock in regional or village corporations held by natives of 
Alaska during the twenty-year period in which the stock is inalienable 
pursuant to the Alaska Native Claims Settlement Act (see Sec. 416.1228);
    (h) Life insurance owned by an individual (and spouse, if any) to 
the extent provided in Sec. 416.1230;
    (i) Restricted allotted Indian lands as provided in Sec. 416.1234;
    (j) Payments or benefits provided under a Federal statute other than 
title XVI of the Social Security Act where exclusion is required by such 
statute;
    (k) Disaster relief assistance as provided in Sec. 416.1237;
    (l) Burial spaces and certain funds up to $1,500 for burial expenses 
as provided in Sec. 416.1231;
    (m) Title XVI or title II retroactive payments as provided in 
Sec. 416.1233;
    (n) Housing assistance as provided in Sec. 416.1238;
    (o) Refunds of Federal income taxes and advances made by an employer 
relating to an earned income tax credit, as provided in Sec. 416.1235;
    (p) Payments received as compensation for expenses incurred or 
losses suffered as a result of a crime as provided in Sec. 416.1229;
    (q) Relocation assistance from a State or local government as 
provided in Sec. 416.1239; and
    (r) Dedicated financial institution accounts as provided in 
Sec. 416.1247.

[40 FR 48915, Oct. 20, 1975, as amended at 41 FR 13338, Mar. 30, 1976; 
44 FR 15664, Mar. 15, 1979; 48 FR 57127, Dec. 28, 1983; 51 FR 34464, 
Sept. 29, 1986; 55 FR 28378, July 11, 1990; 58 FR 63890, Dec. 3, 1993; 
59 FR 8538, Feb. 23, 1994; 61 FR 1712, Jan. 23, 1996; 61 FR 67207, Dec. 
20, 1996]



Sec. 416.1212  Exclusion of the home.

    (a) Defined. A home is any property in which an individual (and 
spouse, if any) has an ownership interest and which serves as the 
individual's principal place of residence. This property includes the 
shelter in which an individual resides, the land on which the shelter is 
located and related outbuildings.
    (b) Home not counted. We do not count a home regardless of its 
value. However, see Secs. 416.1220 through 416.1224 when there is an 
income-producing property located on the home property that does not 
qualify under the home exclusion.
    (c) If an individual changes principal place of residence. If an 
individual (and spouse, if any) moves out of his or her home without the 
intent to return, the home becomes a countable resource because it is no 
longer the individual's principal place of residence. If an individual 
leaves his or her home to live in an institution, we still consider the 
home to be the individual's principal place of residence, irrespective 
of the individual's intent to return, as long as a spouse or dependent 
relative of the eligible individual continues to live there. The 
individual's equity in the former home becomes a countable resource 
effective with the first day of the month following the month it is no 
longer his or her principal place of residence.
    (d) Proceeds from the sale of an excluded home. (1) The proceeds 
from the sale of a home which is excluded from the individual's 
resources will also be excluded from resources to the extent they are 
intended to be used and are, in fact, used to purchase another home, 
which is similarly excluded, within 3 months of the date of receipt of 
the proceeds.
    (2) The value of a promissory note or similar installment sales 
contract constitutes a ``proceed'' which can be excluded from resources 
if--
    (i) The note results from the sale of an individual's home as 
described in Sec. 416.1212(a);
    (ii) Within 3 months of receipt (execution) of the note, the 
individual purchases a replacement home as described in Sec. 416.1212(a) 
(see paragraph (e) of this section for an exception); and
    (iii) All note-generated proceeds are reinvested in the replacement 
home within 3 months of receipt (see paragraph (f) of this section for 
an exception).
    (3) In addition to excluding the value of the note itself, other 
proceeds from

[[Page 858]]

the sale of the former home are excluded resources if they are used 
within 3 months of receipt to make payment on the replacement home. Such 
proceeds, which consist of the downpayment and that portion of any 
installment amount constituting payment against the principal, represent 
a conversion of a resource.
    (e) Failure to purchase another excluded home timely. If the 
individual does not purchase a replacement home within the 3-month 
period specified in paragraph (d)(2)(ii) of this section, the value of a 
promissory note or similar installment sales contract received from the 
sale of an excluded home is a countable resource effective with the 
first moment of the month following the month the note is executed. If 
the individual purchases a replacement home after the expiration of the 
3-month period, the note becomes an excluded resource the month 
following the month of purchase of the replacement home provided that 
all other proceeds are fully and timely reinvested as explained in 
paragraph (f) of this section.
    (f) Failure to reinvest proceeds timely. (1) If the proceeds (e.g., 
installment amounts constituting payment against the principal) from the 
sale of an excluded home under a promissory note or similar installment 
sales contract are not reinvested fully and timely (within 3 months of 
receipt) in a replacement home, as of the first moment of the month 
following receipt of the payment, the individual's countable resources 
will include:
    (i) The value of the note; and
    (ii) That portion of the proceeds, retained by the individual, which 
was not timely reinvested
    (2) The note remains a countable resource until the first moment of 
the month following the receipt of proceeds that are fully and timely 
reinvested in the replacement home. Failure to reinvest proceeds for a 
period of time does not permanently preclude exclusion of the promissory 
note or installment sales contract. However, previously received 
proceeds that were not timely reinvested remain countable resources to 
the extent they are retained.
    Example 1.  On July 10, an SSI recipient received his quarterly 
payment of $200 from the buyer of his former home under an installment 
sales contract. As of October 31, the recipient has used only $150 of 
the July payment in connection with the purchase of a new home. The 
exclusion of the unused $50 (and of the installment contract itself) is 
revoked back to July 10. As a result, the $50 and the value of the 
contract as of August 1, are included in a revised determination of 
resources for August and subsequent months.
    Example 2.  On April 10, an SSI recipient received a payment of $250 
from the buyer of his former home under an installment sales contract. 
On May 3, he reinvested $200 of the payment in the purchase of a new 
home. On May 10, the recipient received another $250 payment, and 
reinvested the full amount on June 3. As of July 31, since the recipient 
has used only $200 of the April payment in connection with the purchase 
of the new home, the exclusion of the unused $50 (and of the installment 
contract itself) is revoked back to April 10. As a result, the $50 and 
the value of the contract as of May 1 are includable resources. Since 
the recipient fully and timely reinvested the May payment, the 
installment contract and the payment are again excludable resources as 
of June 1. However, the $50 left over from the previous payment remains 
a countable resource.
    (g) Interest payments. If interest is received as part of an 
installment payment resulting from the sale of an excluded home under a 
promissory note or similar installment sales contract, the interest 
payments do not represent conversion of a resource. The interest is 
income under the provisions of Secs. 416.1102, 416.1120, and 
416.1121(c).

[50 FR 42686, Oct. 22, 1985, as amended at 51 FR 7437, Mar. 4, 1986; 59 
FR 43285, Aug. 23, 1994]



Sec. 416.1216  Exclusion of household goods and personal effects.

    (a) Household goods and personal effects; defined. Household goods 
are defined as including household furniture, furnishings and equipment 
which are commonly found in or about a house and are used in connection 
with the operation, maintenance and occupancy of the home. Household 
goods would also include the furniture, furnishings and equipment which 
are used in the functions and activities of home and family life as well 
as those items which are for comfort and accommodation. Personal effects 
are defined as including clothing, jewelry, items of personal care, 
individual education and recreational

[[Page 859]]

items such as books, musical instruments, and hobbies.
    (b) Limitation on household goods and personal effects. In 
determining the resources of an individual (and spouse, if any), 
household goods and personal effects are excluded if their total equity 
value is $2,000 or less. If the total equity value of household goods 
and personal effects is in excess of $2,000, the excess is counted 
against the resource limitation.
    (c) Additional exclusions of household goods and personal effects. 
In determining the resources of an individual (and spouse, if any) and 
in determining the value of the household goods and personal effects of 
such individual (and spouse), there shall be excluded a wedding ring and 
an engagement ring and household goods and personal effects such as 
prosthetic devices, dialysis machines, hospital beds, wheel chairs and 
similar equipment required because of a person's physical condition. The 
exclusion of items required because of a person's physical condition is 
not applicable to items which are used extensively and primarily by 
members of the household in addition to the person whose physical 
condition requires the item.

[40 FR 48915, Oct. 20,1975, as amended at 44 FR 43266, July 24, 1979]



Sec. 416.1218  Exclusion of the automobile.

    (a) Automobile; defined. As used in this section, the term 
automobile includes, in addition to passenger cars, other vehicles used 
to provide necessary transportation.
    (b) Limitation on automobiles. In determining the resources of an 
individual (and spouse, if any), automobiles are excluded or counted as 
follows:
    (1) Total exclusion. One automobile is totally excluded regardless 
of its value if, for the individual or a member of the individual's 
household--
    (i) It is necessary for employment;
    (ii) It is necessary for the medical treatment of a specific or 
regular medical problem;
    (iii) It is modified for operation by or transportation of a 
handicapped person; or
    (iv) It (or other type of vehicle) is necessary because of climate, 
terrain, distance, or similar factors to provide necessary 
transportation to perform essential daily activities.
    (2) Exclusion to $4,500 of the market value. If no automobile is 
excluded under paragraph (b)(1) of this section, one automobile is 
excluded from counting as a resource to the extent its current market 
value does not exceed $4,500. If the market value of the automobile 
exceeds $4,500, the excess is counted against the resource limit.
    (3) Other automobiles. Any other automobiles are treated as 
nonliquid resources and counted against the resource limit to the extent 
of the individual's equity (see Sec. 416.1201(c)).
    (c) Current market value. The current market value of an automobile 
is the average price an automobile of that particular year, make, model, 
and condition will sell for on the open market (to a private individual) 
in the particular geographic area involved.

[40 FR 48915, Oct. 20, 1975, as amended at 44 FR 43266, July 24, 1979; 
50 FR 42687, Oct. 22, 1985]



Sec. 416.1220  Property essential to self-support; general.

    When counting the value of resources an individual (and spouse, if 
any) has, the value of property essential to self-support is not 
counted, within certain limits. There are different rules for 
considering this property depending on whether it is income-producing or 
not. Property essential to self-support can include real and personal 
property (for example, land, buildings, equipment and supplies, motor 
vehicles, and tools, etc.) used in a trade or business (as defined in 
Sec. 404.1066 of part 404), nonbusiness income-producing property 
(houses or apartments for rent, land other than home property, etc.) and 
property used to produce goods or services essential to an individual's 
daily activities. Liquid resources other than those used as part of a 
trade or business are not property essential to self-support. If the 
individual's principal place of residence qualifies under the home 
exclusion, it is not considered in evaluating property essential to 
self-support.

[50 FR 42687, Oct. 22, 1985]

[[Page 860]]



Sec. 416.1222  How income-producing property essential to self-support is counted.

    (a) General. When deciding the value of property used in a trade or 
business or nonbusiness income-producing activity, only the individual's 
equity in the property is counted. We will exclude as essential to self-
support up to $6,000 of an individual's equity in income-producing 
property if it produces a net annual income to the individual of at 
least 6 percent of the excluded equity. If the individual's equity is 
greater than $6,000, we count only the amount that exceeds $6,000 toward 
the allowable resource limit specified in Sec. 416.1205 if the net 
annual income requirement of 6 percent is met on the excluded equity. If 
the activity produces less than a 6-percent return due to circumstances 
beyond the individual's control (for example, crop failure, illness, 
etc.), and there is a reasonable expectation that the individual's 
activity will again produce a 6-percent return, the property is also 
excluded. If the individual owns more than one piece of property and 
each produces income, each is looked at to see if the 6-percent rule is 
met and then the amounts of the individual's equity in all of those 
properties producing 6 percent are totaled to see if the total equity is 
$6,000 or less. The equity in those properties that do not meet the 6-
percent rule is counted toward the allowable resource limit specified in 
Sec. 416.1205. If the individual's total equity in the properties 
producing 6-percent income is over the $6,000 equity limit, the amount 
of equity exceeding $6,000 is counted as a resource toward the allowable 
resource limit.
    Example 1.  Sharon has a small business in her home making hand-
woven rugs. The looms and other equipment used in the business have a 
current market value of $7,000. The value of her equity is $5,500 since 
she owes $1,500 on the looms. Sharon's net earnings from self-employment 
is $400. Since Sharon's equity in the looms and other equipment ($5,500) 
is under the $6,000 limit for property essential to self-support and her 
net income after expenses ($400) is greater than 6 percent of her 
equity, her income-producing property is excluded from countable 
resources. The home is not considered in any way in valuing property 
essential to self-support.
    Example 2.  Charlotte operates a farm. She owns 3 acres of land on 
which her home is located. She also owns 10 acres of farm land not 
connected to her home. There are 2 tool sheds and 2 animal shelters 
located on the 10 acres. She has various pieces of farm equipment that 
are necessary for her farming activities. We exclude the house and the 3 
acres under the home exclusion (see Sec. 416.1212). However, we look at 
the other 10 acres of land, the buildings and equipment separately to 
see if her total equity in them is no more than $6,000 and if the annual 
rate of return is 6 percent of her equity. In this case, the 10 acres 
and buildings are valued at $4,000 and the few items of farm equipment 
and other inventory are valued at $1,500. Charlotte sells produce which 
nets her more than 6 percent for this year. The 10 acres and other items 
are excluded as essential to her self-support and they continue to be 
excluded as long as she meets the 6-percent annual return requirement 
and the equity value of the 10 acres and other items remains less than 
$6,000.
    Example 3.  Henry has an automobile repair business valued at 
$5,000. There are no debts on the property and bills are paid monthly. 
For the past 4 years the business has just broken even. Since Henry's 
income from the business is less then 6 percent of his equity, the 
entire $5,000 is counted as his resources. Since this exceeds the 
resources limit as described in Sec. 416.1205, he is not eligible for 
SSI benefits.
    (b) Exception. Property that represents the authority granted by a 
governmental agency to engage in an income-producing activity is 
excluded as property essential to self-support if it is:
    (1) Used in a trade or business or nonbusiness income-producing 
activity; or
    (2) Not used due to circumstances beyond the individual's control, 
e.g., illness, and there is a reasonable expectation that the use will 
resume.
    Example  John owns a commercial fishing permit granted by the State 
Commerce Commission, a boat, and fishing tackle. The boat and tackle 
have an equity value of $6,500. Last year, John earned $2,000 from his 
fishing business. The value of the fishing permit is not detemined 
because the permit is excluded under the exception. The boat and tackle 
are producing in excess of a 6 percent return on the excluded equity 
value, so they are excluded under the general rule (see paragraph (a) of 
this section) up to $6,000. The $500 excess value is counted toward the 
resource limit as described in Sec. 416.1205.

[50 FR 42687, Oct. 22, 1985]

[[Page 861]]



Sec. 416.1224  How nonbusiness property used to produce goods or services essential to self-support is counted.

    Nonbusiness property is considered to be essential for an 
individual's (and spouse, if any) self-support if it is used to produce 
goods or services necessary for his or her daily activities. This type 
of property includes real property such as land which is used to produce 
vegetables or livestock only for personal consumption in the 
individual's household (for example, corn, tomatoes, chicken, cattle). 
This type of property also includes personal property necessary to 
perform daily functions exclusive of passenger cars, trucks, boats, or 
other special vehicles. (See Sec. 416.1218 for a discussion on how 
automobiles are counted.) Property used to produce goods or services or 
property necessary to perform daily functions is excluded if the 
individual's equity in the property does not exceed $6,000. Personal 
property which is required by the individual's employer for work is not 
counted, regardless of value, while the individual is employed. Examples 
of this type of personal property include tools, safety equipment, 
uniforms and similar items.
    Example  Bill owns a small unimproved lot several blocks from his 
home. He uses the lot, which is valued at $4,800, to grow vegetables and 
fruit only for his own consumption. Since his equity in the property is 
less than $6,000, the property is excluded as necessary to self-support.

[50 FR 42687, Oct. 22, 1985]



Sec. 416.1225  An approved plan for self-support; general.

    If the individual is blind or disabled, resources will not be 
counted that are identified as necessary to fulfill a plan for achieving 
self-support which is in writing, has been approved by the Social 
Security Administration and is being pursued by the individual.

[50 FR 42688, Oct. 22, 1985]



Sec. 416.1226  What a plan to achieve self-support is.

    A plan to achieve self-support must--
    (a) Be designed especially for the individual;
    (b) Be in writing;
    (c) Be approved by the Social Security Administration (a change of 
plan must also be approved);
    (d) Be designed for an initial period of not more than 18 months. 
The period may be extended for up to another 18 months if the individual 
cannot complete the plan in the first 18-month period. A total of up to 
48 months may be allowed to fulfill a plan for a lengthy education or 
training program designed to make the individual self-supporting;
    (e) Show the individual's specific occupational goal;
    (f) Show what resources the individual has or will receive for 
purposes of the plan and how he or she will use them to attain his or 
her occupational goal; and
    (g) Show how the resources the individual set aside under the plan 
will be kept identifiable from his or her other funds.

[50 FR 42688, Oct. 22, 1985]



Sec. 416.1227  When the resources excluded under a plan to achieve self-support begin to count.

    The resources that were excluded under the individual's plan will 
begin to be counted as of the first day of the month following the month 
in which any of these circumstances occur:
    (a) Failing to follow the conditions of the plan:
    (b) Abandoning the plan;
    (c) Completing the time schedule outlined in the plan; or
    (d) Reaching the goal as outlined in the plan.

[50 FR 42688, Oct. 22, 1985]



Sec. 416.1228  Exclusion of Alaskan natives' stock in regional or village corporations.

    (a) In determining the resources of a native of Alaska (and spouse, 
if any) there will be excluded from resources, shares of stock held in a 
regional or village corporation during the period of 20 years in which 
such stock is inalienable, as provided by sections 7(h) and 8(c) of the 
Alaska Native Claims Settlement Act (43 U.S.C. 1606, 1607). The 20-year 
period of inalienability terminates on January 1, 1992.
    (b) As used in this section, native of Alaska has the same meaning 
as that contained in section 3(b) of the Alaska

[[Page 862]]

Native Claims Settlement Act (43 U.S.C. 1602(b)).



Sec. 416.1229  Exclusion of payments received as compensation for expenses incurred or losses suffered as a result of a crime.

    (a) In determining the resources of an individual (and spouse, if 
any), any amount received from a fund established by a State to aid 
victims of crime is excluded from resources for a period of 9 months 
beginning with the month following the month of receipt.
    (b) To be excluded from resources under this section, the individual 
(or spouse) must demonstrate that any amount received was compensation 
for expenses incurred or losses suffered as the result of a crime.

[61 FR 1712, Jan. 23, 1996]



Sec. 416.1230  Exclusion of life insurance.

    (a) General. In determining the resources of an individual (and 
spouse, if any), life insurance owned by the individual (and spouse, if 
any) will be considered to the extent of its cash surrender value. If, 
however, the total face value of all life insurance policies on any 
person does not exceed $1,500, no part of the cash surrender value of 
such life insurance will be taken into account in determining the 
resources of the individual (and spouse, if any). In determining the 
face value of life insurance on the individual (and spouse, if any), 
term insurance and burial insurance will not be taken into account.
    (b) Definitions--(1) Life insurance. Life insurance is a contract 
under which the insurer agrees to pay a specified amount upon the death 
of the insured.
    (2) Insurer. The insurer is the company or association which 
contracts with the owner of the insurance.
    (3) Insured. The insured is the person upon whose life insurance is 
effected.
    (4) Owner. The owner is the person who has the right to change the 
policy. This is normally the person who pays the premiums.
    (5) Term insurance. Term insurance is a form of life insurance 
having no cash surrender value and generally furnishing insurance 
protection for only a specified or limited period of time.
    (6) Face value. Face value is the basic death benefit of the policy 
exclusive of dividend additions or additional amounts payable because of 
accidental death or under other special provisions.
    (7) Cash surrender value. Cash surrender value is the amount which 
the insurer will pay (usually to the owner) upon cancellation of the 
policy before death of the insured or before maturity of the policy.
    (8) Burial insurance. Burial insurance is insurance whose terms 
specifically provide that the proceeds can be used only to pay the 
burial expenses of the insured.



Sec. 416.1231  Burial spaces and certain funds set aside for burial expenses.

    (a) Burial spaces--(1) General. In determining the resources of an 
individual, the value of burial spaces for the individual, the 
individual's spouse or any member of the individual's immediate family 
will be excluded from resources.
    (2) Burial spaces defined. For purposes of this section ``burial 
spaces'' include burial plots, gravesites, crypts, mausoleums, urns, 
niches and other customary and traditional repositories for the 
deceased's bodily remains provided such spaces are owned by the 
individual or are held for his or her use. Additionally, the term 
includes necessary and reasonable improvements or additions to or upon 
such burial spaces including, but not limited to, vaults, headstones, 
markers, plaques, or burial containers and arrangements for opening and 
closing the gravesite for burial of the deceased.
    (3) An agreement representing the purchase of a burial space. The 
value of an agreement representing the purchase of a burial space, 
including any accumulated interest, will be excluded from resources. We 
do not consider a burial space ``held for'' an individual under an 
agreement unless the individual currently owns and is currently entitled 
to the use of the space under that agreement. For example, we will not 
consider a burial space ``held for'' an individual under an installment 
sales agreement or other similar device under which the individual does 
not currently own nor currently have the right to use the space, nor is 
the seller currently obligated to provide the

[[Page 863]]

space, until the purchase amount is paid in full.
    (4) Immediate family defined. For purposes of this section immediate 
family means an individual's minor and adult children, including adopted 
children and step-children; an individual's brothers, sisters, parents, 
adoptive parents, and the spouses of those individuals. Neither 
dependency nor living-in-the-same-household will be a factor in 
determining whether a person is an immediate family member.
    (b) Funds set aside for burial expenses. (1) Exclusion. In 
determining the resources of an individual (and spouse, if any) there 
shall be excluded an amount not in excess of $1,500 each of funds 
specifically set aside for the burial expenses of the individual or the 
individual's spouse. This exclusion applies only if the funds set aside 
for burial expenses are kept separate from all other resources not 
intended for burial of the individual (or spouse) and are clearly 
designated as set aside for the individual's (or spouse's) burial 
expenses. If excluded burial funds are mixed with resources not intended 
for burial, the exclusion will not apply to any portion of the funds. 
This exclusion is in addition to the burial space exclusion.
    (2) Exception for parental deeming situations. If an individual is 
an eligible child, the burial funds (up to $1,500) that are set aside 
for the burial arrangements of the eligible child's ineligible parent or 
parent's spouse will not be counted in determining the resources of such 
eligible child.
    (3) Burial funds defined. For purposes of this section ``burial 
funds'' are revocable burial contracts, burial trusts, other burial 
arrangements (including amounts paid on installment sales contracts for 
burial spaces), cash, accounts, or other financial instruments with a 
definite cash value clearly designated for the individual's (or 
spouse's, if any) burial expenses and kept separate from nonburial-
related assets. Property other than listed in this definition will not 
be considered ``burial funds.''
    (4) Recipients currently receiving SSI benefits. Recipients 
currently eligible as of July 11, 1990, who have had burial funds 
excluded which do not meet all of the requirements of paragraphs (b) (1) 
and (3) of this section must convert or separate such funds to meet 
these requirements unless there is an impediment to such conversion or 
separation; i.e., a circumstance beyond an individual's control which 
makes conversion/separation impossible or impracticable. For so long as 
such an impediment or circumstance exists, the burial funds will be 
excluded if the individual remains otherwise continuously eligible for 
the exclusion.
    (5) Reductions. Each person's (as described in Secs. 416.1231(b)(1) 
and 416.1231(b)(2)) $1,500 exclusion must be reduced by:
    (i) The face value of insurance policies on the life of an 
individual owned by the individual or spouse (if any) if the cash 
surrender value of those policies has been excluded from resources as 
provided in Sec. 416.1230; and
    (ii) Amounts in an irrevocable trust (or other irrevocable 
arrangement) available to meet the burial expenses.
    (6) Irrevocable trust or other irrevocable arrangement. Funds in an 
irrevocable trust or other irrevocable arrangement which are available 
for burial are funds which are held in an irrevocable burial contract, 
an irrevocable burial trust, or an amount in an irrevocable trust which 
is specifically identified as available for burial expenses.
    (7) Increase in value of burial funds. Interest earned on excluded 
burial funds and appreciation in the value of excluded burial 
arrangements which occur beginning November 1, 1982, or the date of 
first SSI eligibility, whichever is later, are excluded from resources 
if left to accumulate and become part of the separate burial fund.
    (8) Burial funds used for some other purpose. (i) Excluded burial 
funds must be used solely for that purpose.
    (ii) If any excluded funds are used for a purpose other than the 
burial arrangements of the individual or the individual's spouse for 
whom the funds were set aside, future SSI benefits of the individual (or 
the individual and eligible spouse) will be reduced by an amount equal 
to the amount of excluded burial funds used for another purpose. This 
penalty for use of excluded burial funds for a purpose other than the 
burial arrangements of the individual (or spouse) will apply only if,

[[Page 864]]

as of the first moment of the month of use, the individual would have 
had resources in excess of the limit specified in Sec. 416.1205 without 
application of the exclusion.
    (9) Extension of burial fund exclusion during suspension. The 
exclusion of burial funds and accumulated interest and appreciation will 
continue to apply throughout a period of suspension as described in 
Sec. 416.1321, so long as the individual's eligibility has not been 
terminated as described in Secs. 416.1331 through 416.1335.

[48 FR 57127, Dec. 28, 1983, as amended at 55 FR 28377, July 11, 1990; 
57 FR 1384, Jan. 14, 1992]



Sec. 416.1232  Replacement of lost, damaged, or stolen excluded resources.

    (a) Cash (including any interest earned on the cash) or in-kind 
replacement received from any source for purposes of repairing or 
replacing an excluded resource (as defined in Sec. 416.1210) that is 
lost, damaged, or stolen is excluded as a resource. This exclusion 
applies if the cash (and the interest) is used to repair or replace the 
excluded resource within 9 months of the date the individual received 
the cash. Any of the cash (and interest) that is not used to repair or 
replace the excluded resource will be counted as a resource beginning 
with the month after the 9-month period expires.
    (b) The initial 9-month time period will be extended for a 
reasonable period up to an additional 9 months where we find the 
individual had good cause for not replacing or repairing the resource. 
An individual will be found to have good cause when circumstances beyond 
his or her control prevented the repair or replacement or the 
contracting for the repair or replacement of the resource. The 9-month 
extension can only be granted if the individual intends to use the cash 
or in-kind replacement items to repair or replace the lost, stolen, or 
damaged excluded resource in addition to having good cause for not 
having done so. If good cause is found for an individual, any unused 
cash (and interest) is counted as a resource beginning with the month 
after the good cause extension period expires. Exception: For victims of 
Hurricane Andrew only, the extension period for good cause may be 
extended for up to an additional 12 months beyond the 9-month extension 
when we find that the individual had good cause for not replacing or 
repairing an excluded resource within the 9-month extension.
    (c) The time period described in paragraph (b) of this section 
(except the time period for individuals granted an additional extension 
under the Hurricane Andrew provision) may be extended for a reasonable 
period up to an additional 12 months in the case of a catastrophe which 
is declared to be a major disaster by the President of the United States 
if the excluded resource is geographically located within the disaster 
area as defined by the Presidential order; the individual intends to 
repair or replace the excluded resource; and, the individual 
demonstrates good cause why he or she has not been able to repair or 
replace the excluded resource within the 18-month period.
    (d) Where an extension of the time period is made for good cause and 
the individual changes his or her intent to repair or replace the 
excluded resource, funds previously held for replacement or repair will 
be counted as a resource effective with the month that the individual 
reports this change of intent.

[44 FR 15662, Mar. 15, 1979, as amended at 50 FR 48579, Nov. 26, 1985; 
61 FR 5944, Feb. 15, 1996]



Sec. 416.1233  Exclusion of certain underpayments from resources.

    (a) General. In determining the resources of an eligible individual 
(and spouse, if any), we will exclude, for 6 months following the month 
of receipt, the unspent portion of any title II or title XVI retroactive 
payment received on or after October 1, 1984. Exception: We will exclude 
for 9 months following the month of receipt the unspent portion of any 
title II of title XVI retroactive payment received during the period 
beginning October 1, 1987, and ending September 30, 1989. This exclusion 
also applies to such payments received by any other person whose 
resources are subject to deeming under this subpart.
    (b) Retroactive payments. For purposes of this exclusion, a 
retroactive payment is one that is paid after the month in which it was 
due. A title XVI

[[Page 865]]

retroactive payment includes any retroactive amount of federally 
administered State supplementation.
    (c) Limitation on exclusion. This exclusion applies only to any 
unspent portion of retroactive payments made under title II or XVI. Once 
the money from the retroactive payment is spent, this exclusion does not 
apply to items purchased with the money, even if the 6-month or 9-month 
period, whichever is applicable (see paragraph (a) of this section), has 
not expired. However, other exclusions may be applicable. As long as the 
funds from the retroactive payment are not spent, they are excluded for 
the full 6-month or 9-month period, whichever is applicable.
    (d) Funds must be identifiable. Unspent money from a retroactive 
payment must be identifiable from other resources for this exclusion to 
apply. The money may be commingled with other funds but, if this is done 
in such a fashion that the retroactive amount can no longer be 
separately identified, that amount will count toward the resource limit 
described in Sec. 416.1205.
    (e) Written notice. We will give each recipient a written notice of 
the exclusion limitation when we make the retroactive payment.

[51 FR 34464, Sept. 29, 1986, as amended at 54 FR 19164, May 4, 1989]



Sec. 416.1234  Exclusion of Indian lands.

    In determining the resources of an individual (and spouse, if any) 
who is of Indian descent from a federally recognized Indian tribe, we 
will exclude any interest of the individual (or spouse, if any) in land 
which is held in trust by the United States for an individual Indian or 
tribe, or which is held by an individual Indian or tribe and which can 
only be sold, transferred, or otherwise disposed of with the approval of 
other individuals, his or her tribe, or an agency of the Federal 
Government.

[59 FR 8538, Feb. 23, 1994]



Sec. 416.1235  Exclusion of earned income tax credit.

    In determining the resources of an individual (and spouse, if any), 
we exclude in the month following the month of receipt the unspent 
portion of any refund of Federal income taxes under section 32 of the 
Internal Revenue Code (relating to earned income tax credit) and the 
unspent portion of any payment from an employer under section 3507 of 
the Internal Revenue Code (relating to advance payment of earned income 
tax credit). Any unspent funds retained until the first moment of the 
second month following their receipt are subject to resource counting 
rules at that time.

[58 FR 63890, Dec. 3, 1993]



Sec. 416.1236  Exclusions from resources; provided by other statutes.

    (a) For the purpose of Sec. 416.1210(j), payments or benefits 
provided under a Federal statute other than title XVI of the Social 
Security Act where exclusion from resources is required by such statute 
include:
    (1) Payments made under title II of the Uniform Relocation 
Assistance and Real Property Acquisition Policies Act of 1970 (84 Stat. 
1902, 42 U.S.C. 4636).
    (2) Judgment payments to members of the Blackfeet and Gros Ventre 
Tribes of Indians under the provisions of Pub. L. 92-254 (86 Stat. 65, 
25 U.S.C. 1264); and judgment payments distributed to, or held in trust 
for, members of the Grand River Band of Ottawa Indians in Indian Claims 
Commission docket numbered 40-K under the provisions of Pub. L. 94-540 
(90 Stat. 2503).
    (3) Indian judgment funds held in trust by the Secretary of the 
Interior or distributed per capita pursuant to a plan prepared by the 
Secretary of the Interior and not disapproved by a joint resolution of 
the Congress under Public Law 93-134, as amended by Public Law 97-458 
(25 U.S.C. 1407). Indian judgment funds include interest and investment 
income accrued while the funds are so held in trust. This exclusion 
extends to initial purchases made with Indian judgment funds. This 
exclusion will not apply to proceeds from sales or conversions of 
initial purchases or to subsequent purchases.
    (4) The value of the coupon allotment in excess of the amount paid 
for the coupons under the Food Stamp Act of 1964 (78 Stat. 705, as 
amended, 7 U.S.C. 2016(c)).
    (5) The value of assistance to children under the National School 
Lunch Act (60 Stat. 230, 42 U.S.C. 1751 et seq.)

[[Page 866]]

as amended by Pub. L. 90-302 (82 Stat. 117, 42 U.S.C. 1761(h)(3)).
    (6) The value of assistance to children under the Child Nutrition 
Act of 1966 (80 Stat. 889, 42 U.S.C. 1780(b)).
    (7) Any grant or loan to any undergraduate student for educational 
purposes made or insured under any program administered by the 
Commissioner of Education as provided by section 507 of the Higher 
Education Amendments of 1968, Pub. L. 90-575 (82 Stat. 1063).
    (8) Incentive allowances received under title I of the Comprehensive 
Employment and Training Act of 1973 (87 Stat. 849, 29 U.S.C. 821(a)).
    (9) Payments to volunteers under the Domestic Volunteer Service Act 
of 1973 as provided by section 404(g) of that act (87 Stat. 409, 42 
U.S.C. 5044).
    (10) Distributions received by an individual Alaska Native or 
descendant of an Alaska Native from an Alaska Native Regional and 
Village Corporation pursuant to the Alaska Native Claims Settlement Act, 
as follows: cash, including cash dividends on stock received from a 
Native Corporation, is disregarded to the extent that it does not, in 
the aggregate, exceed $2,000 per individual each year (the $2,000 limit 
is applied separately each year, and cash distributions up to $2,000 
which an individual received in a prior year and retained into 
subsequent years will not be counted as resources in those years); 
stock, including stock issued or distributed by a Native Corporation as 
a dividend or distribution on stock; a partnership interest; land or an 
interest in land, including land or an interest in land received from a 
Native Corporation as a dividend or distribution on stock; and an 
interest in a settlement trust. This exclusion is pursuant to the 
exclusion under section 15 of the Alaska Native Claims Settlement Act 
Amendments of 1987, Public Law 100-241 (43 U.S.C. 1626(c)), effective 
February 3, 1988.
    (11) Value of Federally donated foods distributed pursuant to 
section 32 of Pub. L. 74-320 or section 416 of the Agriculture Act of 
1949 (7 CFR 250.6(e)(9) as authorized by 5 U.S.C. 301).
    (12) All funds held in trust by the Secretary of the Interior for an 
Indian tribe and distributed per capita to a member of that tribe under 
Public Law 98-64. Funds held by Alaska Native Regional and Village 
Corporations (ANRVC) are not held in trust by the Secretary of the 
Interior and therefore ANRVC dividend distributions are not excluded 
from resources under this exclusion. For treatment of ANRVC dividend 
distributions, see paragraph IV(a)(10) of this appendix.
    (13) Effective October 17, 1975, pursuant to section 6 of Public Law 
94-114 (89 Stat. 577, 25 U.S.C. 459e), receipts distributed to members 
of certain Indian tribes which are referred to in section 5 of Public 
Law 94-114 (89 Stat. 577, 25 U.S.C. 459d).
    (14) Home energy assistance payments or allowances under the Low-
Income Home Energy Assistance Act of 1981, as added by title XXVI of the 
Omnibus Budget Reconciliation Act of 1981, Public Law 97-35 (42 U.S.C. 
8624(f)).
    (15) Student financial assistance for attendance costs received from 
a program funded in whole or in part under title IV of the Higher 
Education Act of 1965, as amended, or under Bureau of Indian Affairs 
student assistance programs if it is made available for tuition and fees 
normally assessed a student carrying the same academic workload, as 
determined by the institution, including costs for rental or purchase of 
any equipment, materials, or supplies required of all students in the 
same course of study; and an allowance for books, supplies, 
transportation, and miscellaneous personal expenses for a student 
attending the institution on at least a half-time basis, as determined 
by the institution, under section 14(27) of Public Law 100-50, the 
Higher Education Technical Amendments Act of 1987 (20 U.S.C. 1087uu), or 
under Bureau of Indian Affairs student assistance programs.
    (16) Funds, assets, or income under section 6(b) of the Puyallup 
Tribe of Indians Settlement Act of 1989, Public Law 101-41 (25 U.S.C. 
1773h(c)).
    (17) Amounts paid as restitution to certain individuals of Japanese 
ancestry and Aleuts under the Civil Liberties Act of 1988 and the 
Aleutian and Pribilof Islands Restitution Act, sections 105(f) and 
206(d) of Public Law 100-383 (50 U.S.C. app. 1989 b and c).

[[Page 867]]

    (18) Payments made on or after January 1, 1989, from the Agent 
Orange Settlement Fund or any other fund established pursuant to the 
settlement in the In Re Agent Orange product liability litigation, 
M.D.L. No. 381 (E.D.N.Y.) under Public Law 101-201 (103 Stat. 1795) and 
section 10405 of Public Law 101-239 (103 Stat. 2489).
    (19) Payments, funds, distributions, or income derived from them 
under section 8(b) of the Seneca Nation Settlement Act of 1990, Public 
Law 101-503 (104 Stat. 1297, 25 U.S.C. 1774f).
    (20) Payments made under section 6 of the Radiation Exposure 
Compensation Act, Public Law 101-426 (104 Stat. 925, 42 U.S.C. 2210).
    (b) In order for payments and benefits listed in paragraph (a) to be 
excluded from resources, such funds must be segregated and not 
commingled with other countable resources so that the excludable funds 
are identifiable.

[41 FR 13338, Mar. 30, 1976, as amended at 42 FR 44221, Sept. 2, 1977; 
42 FR 54945, Oct. 12, 1977; 43 FR 45555, Oct. 3, 1978; 57 FR 53851, Nov. 
13, 1992; 57 FR 55089, Nov. 24, 1992; 59 FR 8538, Feb. 23, 1994]



Sec. 416.1237  Assistance received on account of major disaster.

    (a) Assistance received under the Disaster Relief and Emergency 
Assistance Act or other assistance provided under a Federal statute 
because of a catastrophe which is declared to be a major disaster by the 
President of the United States or comparable assistance received from a 
State or local government, or from a disaster assistance organization, 
is excluded in determining countable resources under Sec. 416.1210.
    (b) Interest earned on the assistance is excluded from resources.

[57 FR 53852, Nov. 13, 1992]



Sec. 416.1238  Exclusion of certain housing assistance.

    The value of any assistance paid with respect to a dwelling under 
the statutes listed in Sec. 416.1124(c)(14) is excluded from resources.

[55 FR 28378, July 11, 1990]



Sec. 416.1239  Exclusion of State or local relocation assistance payments.

    In determining the resources of an individual (or spouse, if any), 
relocation assistance provided by a State or local government (as 
described in Sec. 416.1124(c)(18)) is excluded from resources for a 
period of 9 months beginning with the month following the month of 
receipt.

[61 FR 1712, Jan. 23, 1996]



Sec. 416.1240  Disposition of resources.

    (a) Where the resources of an individual (and spouse, if any) are 
determined to exceed the limitations prescribed in Sec. 416.1205, such 
individual (and spouse, if any) shall not be eligible for payment except 
under the conditions provided in this section. Payment will be made to 
an individual (and spouse, if any) if:
    (1) Total includable liquid resources (as defined in 
Sec. 416.1201(b)) do not exceed one-fourth of the applicable dollar 
amount referenced in section 1611(b)(1) of the Act in the case of an 
individual and in section 1611(b)(2) in the case of an individual and 
spouse (as increased pursuant to section 1617 of the Act and published 
in the Federal Register pursuant to section 215(i)(2)(D)); and
    (2) The individual agrees in writing to:
    (i) Dispose, at current market value, of the nonliquid resources (as 
defined in Sec. 416.1201(c)) in excess of the limitations prescribed in 
Sec. 416.1205 within the time period specified in Sec. 416.1242; and
    (ii) Repay any overpayments (as defined in Sec. 416.1244) with the 
proceeds of such disposition.
    (b) Payment made for the period during which the resources are being 
disposed of will be conditioned upon the disposition of those resources 
as prescribed in paragraph (a)(2) of this section. Any payments so made 
are (at the time of disposition) considered overpayments to the extent 
they would not have been paid had the disposition occurred at the 
beginning of the period for which such payments were made.
    (c) If an individual fails to dispose of the resources prescribed in 
paragraph (a)(2) of this section, regardless of the efforts he or she 
makes to dispose of

[[Page 868]]

them, the resources will be counted at their current market value and 
the individual will be ineligible due to excess resources. The original 
estimate of current market value will be used unless the individual 
submits evidence establishing a lower value (e.g., an estimate from a 
disinterested knowledgeable source.)

[52 FR 31762, Aug. 24, 1987]



Sec. 416.1242  Time limits for disposing of resources.

    (a) In order for payment conditioned on the disposition of nonliquid 
resources to be made, the individual must agree in writing to dispose of 
real property within 9 months and personal property within 3 months. The 
time period for disposal of property begins on the date we accept the 
individual's signed written agreement to dispose of the property. If we 
receive a signed agreement on or after the date we have determined that 
the individual meets the eligibility requirements described in 
Sec. 416.202 of this part, with the exception of the resource 
requirements described in this subpart, our acceptance of the written 
agreement will occur on the date the individual receives our written 
notice that the agreement is in effect. If we receive a signed agreement 
prior to the date we determine that all nonresource requirements are 
met, our acceptance of the written agreement will not occur until the 
date the individual receives our written notice that all nonresource 
requirements are met and that the agreement is in effect. When the 
written notice is mailed to the individual, we assume that the notice 
was received 5 days after the date shown on the notice unless the 
individual shows us that he or she did not receive it within the 5-day 
period.
    (b) The 3-month time period for disposition of personal property 
will be extended an additional 3 months where it is found that the 
individual had ``good cause'' for failing to dispose of the resources 
within the original time period. The rules on the valuation of real 
property not disposed of within 9 months are described in 
Sec. 416.1245(b).
    (c) An individual will be found to have ``good cause'' for failing 
to dispose of a resource if, despite reasonable and diligent effort on 
his part, he was prevented by circumstances beyond his control from 
disposing of the resource.
    (d) In determining whether the appropriate time limits discussed in 
paragraphs (a) and (b) of this section have elapsed, no month will be 
counted for which an individual's benefits have been suspended as 
described in Sec. 416.1321, provided that the reason for the suspension 
is unrelated to the requirements in Sec. 416.1245(b) and that the 
individual's eligibility has not been terminated as defined in 
Secs. 416.1331 through 416.1335.

[40 FR 48915, Oct. 20, 1975, as amended at 53 FR 13257, Apr. 22, 1988; 
55 FR 10419, Mar. 21, 1990; 58 FR 60105, Nov. 15, 1993]



Sec. 416.1244  Treatment of proceeds from disposition of resources.

    (a) Upon disposition of the resources, the net proceeds to the 
individual from the sale are considered available to repay that portion 
of the payments that would not have been made had the disposition 
occurred at the beginning of the period for which payment was made.
    (b) The net proceeds from disposition will normally be the sales 
price less any encumbrance on the resource and the expenses of sale such 
as transfer taxes, fees, advertising costs, etc. where, however, a 
resource has been sold (or otherwise transferred) by an individual to a 
friend or relative for less than its current market value, the net 
proceeds will be the current market value less costs of sale and 
encumbrance.
    (c) After deducting any amount necessary to raise the individual's 
(and spouse's, if any) resources to the applicable limits described in 
Sec. 416.1205, as of the beginning of the disposition period, the 
balance of the net proceeds will be used to recover the payments made to 
the individual (and spouse, if any). Any remaining proceeds are 
considered liquid resources.
    (d) The overpayment to be recovered is equal to the balance of the 
net proceeds (as described in paragraph (c) of this section) or the 
total payments made to the individual (and spouse, if any) for the 
period of disposition, whichever is less.

[40 FR 48915, Oct. 20, 1975, as amended at 50 FR 38982, Sept. 28, 1985]

[[Page 869]]



Sec. 416.1245  Exceptions to required disposition of real property.

    (a) Loss of housing for joint owner. Excess real property which 
would be a resource under Sec. 416.1201 is not a countable resource for 
conditional benefit purposes when: it is jointly owned; and sale of the 
property by an individual would cause the other owner undue hardship due 
to loss of housing. Undue hardship would result when the property serves 
as the principal place of residence for one (or more) of the other 
owners, sale of the property would result in loss of that residence, and 
no other housing would be readily available for the displaced other 
owner (e.g., the other owner does not own another house that is legally 
available for occupancy). However, if undue hardship ceases to exist, 
its value will be included in countable resources as described in 
Sec. 416.1207.
    (b) Reasonable efforts to sell. (1) Excess real property is not 
included in countable resources for so long as the individual's 
reasonable efforts to sell it have been unsuccessful. The basis for 
determining whether efforts to sell are reasonable, as well as 
unsuccessful, will be a 9-month conditional benefits period described in 
Sec. 416.1242. If it is determined that reasonable efforts to sell have 
been unsuccessful, further SSI payments will not be conditioned on the 
disposition of the property and only the 9 months of conditional 
benefits will be subject to recovery. In order to be eligible for 
payments after the conditional benefits period, the individual must 
continue to make reasonable efforts to sell.
    (2) A conditional benefits period involving excess real property 
begins as described at Sec. 416.1242(a). The conditional benefits period 
ends at the earliest of the following times:
    (i) Sale of the property;
    (ii) Lack of continued reasonable efforts to sell;
    (iii) The individual's written request for cancellation of the 
agreement;
    (iv) Countable resources, even without the conditional exclusion, 
fall below the applicable limit (e.g., liquid resources have been 
depleted); or
    (v) The 9 months of conditional benefits have been paid.
    (3) Reasonable efforts to sell property consist of taking all 
necessary steps to sell it in the geographic area covered by the media 
serving the area in which the property is located, unless the individual 
has good cause for not taking these steps. More specifically, making a 
reasonable effort to sell means that:
    (i) Except for gaps of no more than 1 week, an individual must 
attempt to sell the property by listing it with a real estate agent or 
by undertaking to sell it himself;
    (ii) Within 30 days of signing a conditional benefits agreement, and 
absent good cause for not doing so, the individual must:
    (A) List the property with an agent; or
    (B) Begin to advertise it in at least one of the appropriate local 
media, place a ``For Sale'' sign on the property (if permitted), begin 
to conduct ``open houses'' or otherwise show the property to interested 
parties on a continuous basis, and attempt any other appropriate methods 
of sale; and
    (iii) The individual accepts any reasonable offer to buy and has the 
burden of demonstrating that an offer was rejected because it was not 
reasonable. If the individual receives an offer that is at least two-
thirds of the latest estimate of current market value, the individual 
must present evidence to establish that the offer was unreasonable and 
was rejected.
    (4) An individual will be found to have ``good cause'' for failing 
to make reasonable efforts to sell under paragraph (b)(3) of this 
section if he or she was prevented by circumstances beyond his or her 
control from taking the steps specified in paragraph (b)(3) (i) through 
(ii) of this section.
    (5) An individual who has received 9 months of conditional benefits 
and whose benefits have been suspended as described at Sec. 416.1321 for 
reasons unrelated to the property excluded under the conditional 
benefits agreement, but whose eligibility has not been terminated as 
defined at Secs. 416.1331 through 416.1335, can continue to have the 
excess real property not included in

[[Page 870]]

countable resources upon reinstatement of SSI payments if reasonable 
efforts to sell the property resume within 1 week of reinstatement. Such 
an individual will not have to go through a subsequent conditional 
benefits period. However, the individual whose eligibility has been 
terminated as defined as Secs. 416.1331 through 416.1335 and who 
subsequently reapplies would be subject to a new conditional benefits 
period if there is still excess real property.

[55 FR 10419, Mar. 21, 1990]



Sec. 416.1246  Disposal of resources at less than fair market value.

    (a) General. (1) An individual (or eligible spouse) who gives away 
or sells a nonexcluded resource for less than fair market value for the 
purpose of establishing SSI or Medicaid eligibility will be charged with 
the difference between the fair market value of the resource and the 
amount of compensation received. The difference is referred to as 
uncompensated value and is counted toward the resource limit (see 
Sec. 416.1205) for a period of 24 months from the date of transfer.
    (2) If the transferred resource (asset) is returned to the 
individual, the uncompensated value is no longer counted as of the date 
of return. If the transferred asset is cash, the uncompensated value is 
reduced as of the date of return by the amount of cash that is returned. 
No income will be charged as a result of such returns. The returned 
asset will be evaluated as a resource according to the rules described 
in Secs. 416.1201 through 416.1230 as of the first day of the following 
month.
    (3) If the individual receives additional compensation in the form 
of cash for the transferred asset the uncompensated value is reduced, as 
of the date the additional cash compensation is received, by the amount 
of that additional compensation.
    (b) Fair market value. Fair market value is equal to the current 
market value of a resource at the time of transfer or contract of sale, 
if earlier. See Sec. 416.1101 for definition of current market value.
    (c) Compensation. The compensation for a resource includes all 
money, real or personal property, food, shelter, or services received by 
the individual (or eligible spouse) at or after the time of transfer in 
exchange for the resource if the compensation was provided pursuant to a 
binding (legally enforceable) agreement in effect at the time of 
transfer. Compensation also includes all money, real or personal 
property, food, shelter, or services received prior to the actual 
transfer if they were provided pursuant to a binding (legally 
enforceable) agreement whereby the eligible individual would transfer 
the resource or otherwise pay for such items. In addition, payment or 
assumption of a legal debt owed by the eligible individual in exchange 
for the asset is considered compensation.
    (d)(1) Uncompensated value--General. The uncompensated value is the 
fair market value of a resource at the time of transfer minus the amount 
of compensation received by the individual (or eligible spouse) in 
exchange for the resource. However, if the transferred resource was 
partially excluded, we will not count uncompensated value in an amount 
greater than the countable value of the resources at the time of 
transfer.
    (2) Suspension of counting as a resource the uncompensated value 
where necessary to avoid undue hardship. We will suspend counting as a 
resource the uncompensated value of the transferred asset for any month 
in the 24-month period if such counting will result in undue hardship. 
We will resume counting the uncompensated value as a resource for any 
month of the 24-month period in which counting will not result in undue 
hardship. We will treat as part of the 24-month period any months during 
which we suspend the counting of uncompensated value.
    (3) When undue hardship exists. Undue hardship exists when:
    (i) An individual alleges that failure to receive SSI benefits would 
deprive the individual of food or shelter; and
    (ii) The applicable Federal benefit rate (plus the federally-
administered State supplementary payment level) exceeds the sum of: The 
individual's monthly countable and excludable income and monthly 
countable and excludable liquid resources.
    (e) Presumption that resource was transferred to establish SSI or 
Medicaid

[[Page 871]]

eligibility. Transfer of a resource for less than fair market value is 
presumed to have been made for the purpose of establishing SSI or 
Medicaid eligibility unless the individual (or eligible spouse) 
furnishes convincing evidence that the resource was transferred 
exclusively for some other reason. Convincing evidence may be pertinent 
documentary or non-documentary evidence which shows, for example, that 
the transfer was ordered by a court, or that at the time of transfer the 
individual could not have anticipated becoming eligible due to the 
existence of other circumstances which would have precluded eligibility. 
The burden of rebutting the presumption that a resource was transferrred 
to establish SSI or Medicaid eligibility rests with the individual (or 
eligible spouse).
    (f) Applicability. This section applies only to transfers of 
resources that occurred before July 1, 1988. Paragraphs (d)(2) and 
(d)(3) of this section, regarding undue hardship, are effective for such 
transfers on or after April 1, 1988.

[48 FR 40885, Sept. 12, 1983, as amended at 50 FR 38982, Sept. 26, 1985; 
53 FR 13257, Apr. 22, 1988; 55 FR 10419, Mar. 21, 1990]



Sec. 416.1247  Exclusion of a dedicated account in a financial institution.

    (a) General. In determining the resources of an individual (or 
spouse, if any), the funds in a dedicated account in a financial 
institution established and maintained in accordance with 
Sec. 416.640(e) will be excluded from resources. This exclusion applies 
only to benefits which must or may be deposited in such an account, as 
specified in Sec. 416.546, and accrued interest or other earnings on 
these benefits. If these funds are commingled with any other funds 
(other than accumulated earnings or interest) this exclusion will not 
apply to any portion of the funds in the dedicated account.
    (b) Exclusion during a period of suspension or termination--(1) 
Suspension. The exclusion of funds in a dedicated account and interest 
and other earnings thereon continues to apply during a period of 
suspension due to ineligibility as described in Sec. 416.1321, 
administrative suspension, or a period of eligibility for which no 
payment is due, so long as the individual's eligibility has not been 
terminated as described in Secs. 416.1331 through 416.1335.
    (2) Termination. Once an individual's eligibility has been 
terminated, any funds previously excluded under paragraph (a) of this 
section may not be excluded if the individual establishes a subsequent 
period of eligibility by filing a new application.

[61 FR 67207, Dec. 20, 1996]



Sec. 416.1260  Special resource provision for recipients under a State plan.

    (a) General. In the case of any individual (or individual and 
spouse, as the case may be) who for the month of December 1973 was a 
recipient of aid or assistance under a State plan approved under title 
I, X, XIV, or XVI, of the Act (see Sec. 416.121), the resources of such 
individual (or individual and spouse, as the case may be) shall be 
deemed not to exceed the amount specified in Sec. 416.1205 during any 
period that the resources of such individual (or individual and spouse, 
as the case may be) do not exceed the maximum amount of resources 
specified in such State plan as in effect in October 1972, provided that 
such individual:
    (1) Has, since December 1973, resided continuously in the State 
under whose plan he was eligible for the month of December 1973; and
    (2) Has not, since December 1973, been ineligible for an SSI benefit 
for a period exceeding 6 consecutive months. An SSI benefit means a 
Federal benefit only; it does not include any State supplementation.
    (b) For purposes of this section, an individual will cease to reside 
continuously in a State if he leaves the State with the present 
intention to abandon his home there. In the absence of evidence to the 
contrary,
    (1) If an individual leaves the State for a period of 90 calendar 
days or less, his absence from the State will be considered temporary 
and he will be considered to continue to reside in such State; and
    (2) If an individual leaves the State for a period in excess of 90 
calendar days, he will no longer be considered to reside continuously in 
such State.
    (c) State plan; defined. As used in this subpart, an approved State 
plan as in effect in October 1972 and State plan for

[[Page 872]]

October 1972 means a State plan as approved under the provisions of 45 
CFR Ch. II as in effect in October 1972.

[41 FR 47424, Oct. 29, 1976, as amended at 52 FR 29841, Aug. 12, 1987]



Sec. 416.1261  Application of special resource provision.

    In determining the resources of an individual (and spouse, if any) 
who meets the conditions specified in Sec. 416.1260(a), either the State 
plan resource limit and exclusions (as specified in Sec. 416.1260) or 
the resource limit (as specified in Sec. 416.1205) and exclusions (as 
specified in Sec. 416.1210), whichever is most advantageous to the 
individual (and spouse, if any) will be used.



Sec. 416.1262  Special resource provision applicable in cases involving essential persons.

    (a) Essential persons continuously meet criteria of eligibility. In 
determining the resources of an individual (and spouse, if any) who meet 
the conditions specified in Sec. 416.1260 and whose payment standard is 
increased because such individual has in his home an essential person 
(as defined in Sec. 416.222), either the State plan resource limit and 
exclusions (as specified in Sec. 416.1260) applicable to cases in which 
the needs of an essential person are taken into account in determining 
the individual's needs, or the resource limit as specified in 
Sec. 416.1205 and exclusions as specified in Sec. 416.1210, whichever is 
most advantageous to the individual (and spouse), will be used.
    (b) Essential person fails to meet criteria of eligibility. If for 
any month after December 1973 a person fails to meet the criteria for an 
essential person as specified in Sec. 416.222, in determining the 
resources of an individual (and spouse, if any) either the State plan 
resource limit and criteria as specified in Sec. 416.1260 applicable to 
the individual or individual and spouse, as the case may be, or the 
resource limit as specified in Sec. 416.1205 and exclusions as specified 
in Sec. 416.1210, whichever is most advantageous to the individual (and 
spouse), will be used.

[39 FR 33797, Sept. 20, 1974, as amended at 51 FR 10616, Mar. 28, 1986]



Sec. 416.1264  Spouse ineligible under a State plan in December 1973.

    In the case of an individual who meets the conditions specified in 
Sec. 416.1260 but whose spouse does not meet such conditions, whichever 
of the following is most advantageous for the individual (and spouse, if 
any) will be applied:
    (a) The resource limitation and exclusions for an individual as in 
effect under the approved State plan for October 1972, or
    (b) The resource limitation (as specified in Sec. 416.1205) and 
exclusions (as specified in Sec. 416.1210) for an individual and 
eligible spouse or an individual living with an ineligible spouse.



Sec. 416.1266  Individual under special resource provision dies after December 1973.

    Where only one person, either the eligible individual or the 
eligible spouse, meets the conditions specified in Sec. 416.1260 and 
that person dies after December 1973, the State plan resource limitation 
and exclusions will not be applied to determine the amount of resources 
of the surviving individual. The resource limitation (as specified in 
Sec. 416.1205) and exclusions (as specified in Sec. 416.1210) will be 
applied for the now eligible individual beginning with the month such 
person is considered the eligible individual as defined in subpart A of 
this part.



                 Subpart M--Suspensions and Terminations

    Authority:  Secs. 702(a)(5), 1611-1615, 1619, and 1631 of the Social 
Security Act (42 U.S.C. 902(a)(5), 1382-1382d, 1382h, and 1383).

    Source:  40 FR 1510, Jan. 8, 1975, unless otherwise noted.



Sec. 416.1321  Suspensions; general.

    (a) When suspension is proper. Suspension of benefit payments is 
required when a recipient is alive but no longer meets the requirements 
of eligibility under title XVI of the Act (see subpart B of this part) 
and termination in accordance with Secs. 416.1331 through 416.1335 does 
not apply. (This subpart does not cover suspension of payments for 
administrative reasons, as, for example, when mail is returned as

[[Page 873]]

undeliverable by the Postal Service and the Administration does not have 
a valid mailing address for a recipient or when the representative payee 
dies and a search is underway for a substitute representative payee.)
    (b) Effect of suspension. (1) When payments are correctly suspended 
due to the ineligibility of a recipient, payments shall not be resumed 
until the individual again meets all requirements for eligibility except 
the filing of a new application. Such recipient, upon requesting 
reinstatement, shall be required to submit such evidence as may be 
necessary (except evidence of age, disability, or blindness) to 
establish that he or she again meets all requirements for eligibility 
under this part. Payments to such recipient shall be reinstated 
effective with the first day such recipient meets all requirements for 
eligibility except the filing of a new application.
    (2) A month of ineligibility for purposes of determining when to 
prorate the SSI benefit payment for a subsequent month, is a month for 
which the individual is ineligible for any Federal SSI benefit and any 
federally administered State supplementation.
    (c) Actions which are not suspensions. Payments are not 
``suspended,'' but the claim is disallowed, when it is found that:
    (1) The claimant was notified in accordance with Sec. 416.210(c) at 
or about the time he filed application and before he received payment of 
a benefit that he should file a claim for a payment of the type 
discussed in Sec. 416.1330 and such claimant has failed, without good 
cause (see Sec. 416.210(e)(2)), to take all appropriate steps within 30 
days after receipt of such notice to file and prosecute an application 
for such payment;
    (2) Upon initial application, payment of benefits was conditioned 
upon disposal of specified resources which exceeded the permitted amount 
and the claimant did not comply with the agreed-upon conditions;
    (3) Payment was made to an individual faced with a financial 
emergency who was later found to have been not eligible for payment; or
    (4) Payment was made to an individual presumed to be disabled and 
such disability is not established.
    (d) Exception. Even though conditions described in paragraph (a) of 
this section apply because your impairment is no longer disabling, we 
will not suspend your benefits if after November 1980:
    (1) You are participating in an appropriate vocational 
rehabilitation program (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) which you 
began during your disability;
    (2) Your disability did not end before December 1, 1980; and
    (3) We have determined that your completion of the program, or your 
continuation in the program for a specific period of time, will 
significantly increase the likelihood that you will not have to return 
to the disability benefit rolls.

[40 FR 1510, Jan. 8, 1975, and 47 FR 31544, July 21, 1982; 47 FR 52693, 
Nov. 23, 1982, as amended at 51 FR 13494, Apr. 21, 1986; 51 FR 17618, 
May 14, 1986; 56 FR 55453, Oct. 28, 1991]



Sec. 416.1322  Suspension due to failure to comply with request for information.

    (a) Suspension of benefit payments is required effective with the 
month following the month in which it is determined in accordance with 
Sec. 416.714(b) that the individual is ineligible for payment due to his 
or her failure to comply with our request for necessary information. 
When we have information to establish that benefit payments are again 
payable, the benefit payments will be reinstated for any previous month 
for which the individual continued to meet the eligibility requirements 
of Sec. 416.202. If the reason that an individual's benefits were 
suspended was failure to comply with our request for information, the 
payments for the months that benefits are reinstated will not be 
prorated under Sec. 416.421.
    (b) A suspension of payment for failure to comply with our request 
for information will not apply with respect to any month for which a 
determination as to eligibility for or amount of

[[Page 874]]

payment can be made based on information on record, whether or not 
furnished by an individual specified in Sec. 416.704(a). Where it is 
determined that the information of record does not permit a 
determination with respect to eligibility for or amount of payment, 
notice of a suspension of payment due to a recipient's failure to comply 
with a request for information will be sent in accordance with 
Secs. 416.1336 and 416.1404.

[51 FR 13494, Apr. 21, 1986]



Sec. 416.1323  Suspension due to excess income.

    (a) Effective date. Suspension of payments due to ineligibility for 
benefits because of excess income is effective with the first month in 
which ``countable income'' (see Sec. 416.1115) equals or exceeds the 
amount of benefits otherwise payable for such month (see subpart D of 
this part). This rule applies regardless of the month in which the 
income is received.
    (b) Resumption of payments. If benefits are otherwise payable, they 
will be resumed effective with the first month in which a recipient's 
monthly countable income becomes less than the applicable Federal 
benefit rate (or the sum of that rate and the level for any federally 
administered State supplementary payment) for that month. If the reason 
that a recipient's benefits were suspended was excess income, the 
payment for the first month that benefits are reinstated will not be 
prorated under Sec. 416.421.

[40 FR 1510, Jan. 8, 1975, as amended at 51 FR 13494, Apr. 21, 1986]



Sec. 416.1324  Suspension due to excess resources.

    (a) Effective date. Except as specified in Secs. 416.1240 through 
416.1242, suspension of benefit payments because of excess resources is 
required effective with the month in which:
    (1) Ineligibility exists because countable resources are in excess 
of:
    (i) The resource limits prescribed in Sec. 416.1205 for an 
individual and an individual and spouse, or
    (ii) In the case of an eligible individual (and eligible spouse, if 
any) who for the month of December 1973 was a recipient of aid or 
assistance under a State plan approved under title I, X, XIV, or XVI of 
the Act, the maximum amount of resources specified in such State plan as 
in effect for October 1972, if greater than the amounts specified in 
Sec. 416.1205, as applicable; or
    (2) After eligibility has been established, payment of benefits was 
conditioned upon disposal of specified resources, which exceeded the 
permitted amount and the claimant did not comply with the agreed upon 
conditions.
    (3) The amount of an individual's or couple's countable resources is 
determined as of the first moment of each calendar quarter.
    (b) Resumption of payments. If benefits are otherwise payable, they 
will be resumed effective with the start of the month after the month in 
which a recipient's countable resources no longer exceed the limit that 
applies. If the reason that a recipient's benefits were suspended was 
excess resources, the payment for the first month that benefits are 
reinstated will not be prorated under Sec. 416.421.

[40 FR 1510, Jan. 8, 1975, as amended at 50 FR 38982, Sept. 26, 1985; 51 
FR 13494, Apr. 21, 1986]



Sec. 416.1325  Suspension due to status as a resident of a public institution.

    (a) Except as provided in Sec. 416.211(b) and (c), a recipient is 
ineligible for benefits for the first full calendar month in which he or 
she is a resident of a public institution (as defined in Sec. 416.201) 
throughout the calendar month (as defined in Sec. 416.211(a)), and 
payments are suspended effective with such first full month. Such 
ineligibility continues for so long as such individual remains a 
resident of a public institution.
    (b) Resumption of payments. If benefits are otherwise payable, they 
will be resumed effective with the earliest day of the month in which a 
recipient is no longer a resident of a public institution. See 
Sec. 416.421. A transfer from one public institution to another or a 
temporary absence from the institution lasting 14 days or less, however, 
will not change his or her status as a resident, and the suspension will 
continue.

[51 FR 13494, Apr. 21, 1986]

[[Page 875]]



416.1326  Suspension for failure to comply with treatment for drug addiction or alcoholism.

    (a) Basis for suspension. If you are disabled and drug addiction or 
alcoholism is a contributing factor material to the determination of 
disability as described in Sec. 416.935, we will refer you to 
appropriate treatment as defined in Sec. 416.937. You will not be an 
eligible individual and we will suspend your benefits if you do not 
comply with the terms, conditions and requirements of treatment 
prescribed by the institution or facility. (See Sec. 416.940 which 
explains how we evaluate compliance with treatment.)
    (b) Date of suspension. We will suspend your benefits for a period 
starting with the first month after we notify you in writing that you 
failed to comply with prescribed treatment.
    (c) Resumption of benefits. If you are complying with prescribed 
treatment and are otherwise eligible for benefits, we will resume 
benefits effective with the first day of the month after you demonstrate 
and maintain compliance with appropriate treatment for these periods--
    (1) 2 consecutive months for the first determination of 
noncompliance;
    (2) 3 consecutive months for the second determination of 
noncompliance; and
    (3) 6 consecutive months for the third and all subsequent 
determinations of noncompliance.

[60 FR 8152, Feb. 10, 1995]



Sec. 416.1327  Suspension due to absence from the United States.

    (a) Suspension effective date. A recipient is not eligible for SSI 
benefits if he is outside the United States for a full calendar month. 
For purposes of this paragraph--
    (1) United States means the 50 States, the District of Columbia, and 
the Northern Mariana Islands:
    (2) Day means a full 24-hour day; and
    (3) In determining whether a recipient has been outside the United 
States for a full calendar month, it must be established whether the 
recipient is outside the United States for 30 consecutive days or more. 
If yes, he or she will be treated as remaining outside the United States 
until he or she has returned to and remained in the United States for a 
period of 30 consecutive days. When a recipient has been outside the 
United States, the first period of 30 consecutive days of absence is 
counted beginning with the day after the day the recipient departs from 
the United States and ending with the day before the day on which he or 
she returns to the United States. When a recipient has returned to the 
United States, the second period of 30 consecutive days starts on the 
day the individual returned and ends on the 30th day of continuous 
presence in the United States. Benefits will be suspended effective with 
the first full calendar month in which a recipient is outside the United 
States.
    (b) Resumption of payments after absence from the United States. If 
benefits are otherwise payable they will be resumed--
    (1) Effective with the day following the 30th day of continuous 
presence in the United States after the recipient's return if the 
absence was for 30 consecutive days or more.
    (2) Effective with the day the recipient returned to the United 
States, if the absence from the United States was for a full calendar 
month, but for less than 30 consecutive days (this can occur only for 
the calendar month of February).
    Example 1:  Mike left the United States on March 1 and returned on 
April 1. Counting March 2 through March 31, he was outside the United 
States for 30 consecutive days; thus he is also deemed to be outside the 
United States for 30 additional consecutive days. Therefore, for April 1 
through April 30, he is deemed to be outside the United States and not 
eligible for the calendar month of April. Payments start effective May 
1.
    Example 2:  Mary left the United States on April 15 and returned on 
July 1. Counting April 16 through June 30, she was actually outside the 
United States and not eligible for the calendar months of May and June. 
Since she was absent for more than 30 consecutive days, she is deemed to 
be outside the United States for 30 additional consecutive days. 
Therefore, for July 1 through July 30, she is deemed to be outside the 
United States and not eligible for payment until July 31.

[51 FR 13494, Apr. 21, 1986; 51 FR 17332, May 12, 1986]

[[Page 876]]



Sec. 416.1328  Suspension due to refusal to accept vocational rehabilitation services.

    (a) Suspension effective date. A recipient who is paid on account of 
blindness or disability is ineligible for benefits for the first month, 
and his payments are subject to suspension effective with such first 
month, in which he refuses, without good cause, to accept appropriate 
vocational rehabilitation services (see subpart Q of this part).
    (b) Resumption of payments. If benefits are otherwise payable, they 
will be resumed effective with the earliest day of the month on which 
the recipient no longer refuses without good cause to accept vocational 
rehabilitation services. See Sec. 416.421.

[40 FR 1510, Jan. 8, 1975, as amended at 51 FR 13495, Apr. 21, 1986]



Sec. 416.1329  Suspension due to loss of United States residency, United States citizenship, or status as an alien lawfully admitted for permanent residence or 
          otherwise permanently residing in the United States under 
          color of law.

    (a) A recipient ceases to be an eligible individual or eligible 
spouse, under section 1614(a)(1)(B) of the Act, when he or she ceases to 
meet the requirement of Sec. 416.202(b) with respect to United States 
residency, United States citizenship, or status as an alien lawfully 
admitted for permanent residence or otherwise permanently residing in 
the United States under color of law. Payments are suspended effective 
with the first month after the last month in which a recipient meets the 
requirements of Sec. 416.202(b).
    (b) Resumption of payments. If benefits are otherwise payable, they 
will be resumed effective with the earliest day of the month on which 
the recipient again meets both the residence and citizenship or lawfully 
admitted alien or color of law requirements. See Sec. 416.421.

[51 FR 13495, Apr. 21, 1986]



Sec. 416.1330  Suspension due to failure to apply for and obtain other benefits.

    (a) Suspension effective date. A recipient ceases to be an eligible 
individual or eligible spouse when, in the absence of a showing of 
incapacity to do so, or other good cause, he or she fails within 30 days 
after notice from the Social Security Administration of probable 
eligibility, to take all appropriate steps to apply for and, if 
eligible, to obtain payments such as an annuity, pension, retirement, or 
disability benefit, including veterans' compensation, old-age, 
survivors, and disability insurance benefit, railroad retirement annuity 
or pension, or unemployment insurance benefit. Benefit payments are 
suspended due to such ineligibility effective with the month in which 
the recipient was notified in writing of the requirement that he or she 
file and take all appropriate steps to receive the other benefits. See 
Sec. 416.210(e).
    (b) Resumption of payment. If benefits are otherwise payable, they 
will be resumed effective with the earliest day of the month on which 
the recipient takes the necessary steps to obtain the other benefits. 
See Sec. 416.421.

[51 FR 13495, Apr. 21, 1986]



Sec. 416.1331  Termination of your disability or blindness payments.

    (a) General. The last month for which we can pay you benefits based 
on disability is the earlier of the second month after the first month 
in which you are able to do substantial gainful activity following a 
trial work period (described in Sec. 416.992), or the second month after 
the first month in which you are determined to no longer have a 
disabling impairment (described in Sec. 416.911). (See Sec. 416.1338 for 
an exception to this rule if you are participating in an appropriate 
vocational rehabilitation program, and Sec. 416.261 for an explanation 
of special benefits to which you may be entitled.) However, benefits may 
be resumed during the reentitlement period (described in Sec. 416.992a) 
under certain circumstances. If you have a disabling impairment, you 
will receive benefits based on disability for any month in which you do 
not do substantial gainful activity in the reentitlement period and if 
we determine that you are not able to do substantial gainful activity in 
the first month following the reentitlement period, we will pay you 
benefits after the reentitlement period until you are able to do 
substantial gainful activity. These payments will stop with the earlier 
of the month before the first

[[Page 877]]

month in which you do substantial gainful activity or the month before 
the month in which you are determined to no longer have a disabling 
impairment. The last month for which we can pay you benefits based on 
blindness is the second month after the month in which your blindness 
ends (see Sec. 416.986 for when blindness ends). You must meet the 
income, resources, and other eligibility requirements to receive any of 
the benefits described in this paragraph. We will also stop payment of 
your benefits if you have not cooperated with us in getting information 
about your disability or blindness.
    (b) After we make a determination that you are not now disabled. If 
we determine that you do not meet the disability requirements of the 
law, we will send you an advance written notice telling you why we 
believe you are not disabled and when your benefits should stop. The 
notice will explain your right to appeal if you disagree with our 
determination. You may still appeal our determination that you are not 
now disabled even though your payments are continuing because of your 
participation in an appropriate vocational rehabilitation program. You 
may also appeal a determination that your completion of or continuation 
for a specified period of time in an appropriate vocational 
rehabilitation program will not significantly increase the likelihood 
that you will not have to return to the disability benefit rolls and, 
therefore, you are not entitled to continue to receive benefits.
    (c) When benefits terminate due to 12 consecutive suspension months 
for failure to comply with treatment for drug addiction or alcoholism. 
If you are disabled and drug addiction or alcoholism is a contributing 
factor material to the determination of disability as described in 
Sec. 416.935, your benefits will terminate after 12 consecutive months 
of suspension for noncompliance with treatment requirements as described 
in Sec. 416.1326.
    (d) When benefits terminate due to payment of 36 months of benefits 
based on disability when drug addiction or alcoholism is a contributing 
factor material to the determination of disability. If you are disabled 
and drug addiction or alcoholism is a contributing factor material to 
the determination of disability as described in Sec. 416.935, your 
benefits will terminate after you receive a total of 36 months of SSI 
benefits. The 36-month limit is no longer effective for benefits for 
months beginning after September 2004.
    (e) Months we count in determining the 36 months of benefits when 
drug addiction or alcoholism is a contributing factor material to the 
determination of disability. Beginning March 1995, we will count all 
months for which you were paid an SSI benefit, a federally-administered 
State supplement, a special SSI cash benefit, or you were in special SSI 
eligibility status, toward the 36 months described in paragraph (d) of 
this section. Months for which you were not eligible for benefits will 
not count toward the 36 months.

[49 FR 22274, May 29, 1984, as amended at 60 FR 8152, Feb. 10, 1995]



Sec. 416.1332  Termination of benefit for disabled individual: Exception.

    Special SSI cash benefits (see Sec. 416.261) will be payable for the 
period beginning January 1, 1981, and ending June 30, 1987 if you meet 
eligibility requirements in Sec. 416.262. These requirements apply if 
you, as a disabled recipient, are no longer eligible for regular SSI 
benefits because you demonstrate that you are able to engage in SGA.

[47 FR 15325, Apr. 9, 1982, as amended at 50 FR 46763, Nov. 13, 1985]



Sec. 416.1333  Termination at the request of the recipient.

    A recipient, his legal guardian, or his representative payee, may 
terminate his eligibility for benefits under this part by filing a 
written request for termination which shows an understanding that such 
termination may extend to other benefits resulting from eligibility 
under this part. In the case of a representative payee there must also 
be a showing which establishes that no hardship would result if an 
eligible recipient were not covered by the supplemental security income 
program. When such a request is filed, the recipient ceases to be an 
eligible individual, or eligible spouse, effective with the month 
following the month the request is filed with the Social Security 
Administration unless the recipient specifies some other month. However, 
the

[[Page 878]]

Social Security Administration will not effectuate the request for any 
month for which payment has been or will be made unless there is 
repayment, or assurance of repayment, of any amounts paid for those 
months (e.g., from special payments which would be payable for such 
months under section 228 of the Act). When the Social Security 
Administration effectuates a termination of eligibility at the request 
of the recipient, his legal guardian, or his representative payee, 
notice of the determination will be sent in accordance with 
Sec. 416.1404, and eligibility, once terminated, can be reestablished, 
except as provided by Sec. 416.1408, only upon the filing of a new 
application.

[42 FR 39100, Aug. 2, 1977]



Sec. 416.1334  Termination due to death of recipient.

    Eligibility for benefits ends with the month in which the recipient 
dies. Payments are terminated effective with the month after the month 
of death.



Sec. 416.1335  Termination due to continuous suspension.

    We will terminate your eligibility for benefits following 12 
consecutive months of benefit suspension for any reason beginning with 
the first month you were no longer eligible for regular SSI cash 
benefits, federally-administered State supplementation, special SSI cash 
benefits described in Sec. 416.262, or special SSI eligibility status 
described in Sec. 416.265. We will count the 12-month suspension period 
either from the start of the first month you are no longer receiving 
your cash benefits (see Sec. 416.1321(a)) or the start of the month 
after the month your special SSI eligibility status described in 
Sec. 416.265 ended. This termination is effective with the start of the 
13th month after the suspension began.

[60 FR 8153, Feb. 10, 1995]



Sec. 416.1336  Notice of intended action affecting recipient's payment status.

    (a) Advance written notice requirement. Advance written notice of 
intent to discontinue payment because of an event requiring suspension, 
reduction (see subpart D of this part), or termination of payments shall 
be given in all cases, prior to effectuation of the action, except where 
the Social Security Administration has factual information confirming 
the death of the recipient, e.g., as enumerated in Sec. 404.704(b) of 
this chapter, or a report by a surviving spouse, a legal guardian, a 
parent or other close relative, or a landlord.
    (b) Continuation of payment pending an appeal. The written notice of 
intent to suspend, reduce, or terminate payments shall allow 60 days 
after the date of receipt of the notice for the recipient to request the 
appropriate appellate review (see subpart N of this part). If appeal is 
filed within 10 days after the individual's receipt of the notice, the 
payment shall be continued or reinstated at the previously established 
payment level (subject to the effects of intervening events on the 
payment which are not appealed within 10 days of receipt of a required 
advance notice or which do not require advance notice, e.g., an increase 
in the benefit amount) until a decision on such initial appeal is 
issued, unless the individual specifically waives in writing his right 
to continuation of payment at the previously established level in 
accordance with paragraph (c) of this section. (See Sec. 416.1337 for 
exceptions to the continuation of payment level.) Where the request for 
the appropriate appellate review is filed more than 10 days after the 
notice is received but within the 60-day period specified in 
Sec. 416.1410 or Sec. 416.1426, there shall be no right to continuation 
or reinstatement of payment at the previously established level unless 
good cause is established under the criteria specified in Sec. 416.1474 
for failure to appeal within 10 days after receipt of the notice. For 
purposes of this paragraph, the date of receipt of the notice of intent 
to suspend, reduce, or terminate payments shall be presumed to be 5 days 
after the date on the face of such notice, unless there is a reasonable 
showing to the contrary.
    (c) Waiver of right to continued payment. Notwithstanding any other 
provisions of this section, the recipient, in order to avoid the 
possibility of an overpayment of benefits, may waive continuation of 
payment at the previously established level (subject to intervening 
events which would have increased the benefit for the month in

[[Page 879]]

which the incorrect payment was made, in which case the higher amount 
shall be paid), after having received a full explanation of his rights. 
The request for waiver of continuation of payment shall be in writing, 
state that waiver action is being initiated solely at the recipient's 
request, and state that the recipient understands his right to receive 
continued payment at the previously established level.

[43 FR 18170, Apr. 28, 1978]



Sec. 416.1337  Exceptions to the continuation of previously established payment level.

    (a) Multiple payments exception. (1) Where it is determined that a 
recipient is receiving two or more regular monthly payments in one 
month, the Social Security Administration shall determine the correct 
payment amount and, as soon as practicable thereafter, send the 
recipient an advance written notice of intent to make subsequent payment 
in that amount. Payment for the following month shall be made in the 
correct amount, except as provided in paragraph (a)(3) of this section.
    (2) The advance notice shall explain:
    (i) That multiple payments were made in the one or more months 
identified in the notice;
    (ii) The correct amount of monthly benefits that the recipient is 
eligible to receive; and
    (iii) The recipient's appeal rights.
    (3) If an appeal is filed within 10 days after receipt of the 
written notice of intent, the highest of the two or more check amounts, 
or the correct amount if higher (subject to the dollar limitation 
provisions), shall be continued until a decision on such initial level 
of appeal is issued. See Sec. 416.1474 for criteria as to good cause for 
failure to file a timely appeal. For purposes of this paragraph, the 
date of receipt of the notice of intent shall be presumed to be 5 days 
after the date on the face of such notice, unless there is a reasonable 
showing to the contrary.
    (4) The fact that a recipient is receiving multiple payments is 
established if the records of the Social Security Administration show 
that:
    (i) Two or more checks are being sent to an individual under the 
same name or a common logical spelling variation of the name;
    (ii) The social security number is the same or a pseudo number 
appears;
    (iii) The checks are being sent to the same address;
    (iv) The sex code for such individual is the same; and
    (v) The date of birth for such individual is the same.
    (b) Dollar limitation exception. (1) Where it is determined that a 
recipient is receiving an erroneous monthly payment which exceeds the 
dollar limitation applicable to the recipient's payment category, as set 
forth in paragraph (b)(4) of this section, the Social Security 
Administration shall determine the correct payment amount and, as soon 
as practicable thereafter, send the recipient an advance written notice 
of intent to make subsequent payment in that amount. Payment for the 
following month shall be made in the correct amount, except as provided 
in paragraph (b)(3) of this section.
    (2) The advance notice shall explain:
    (i) That an erroneous monthly payment which exceeds the dollar 
limitation applicable to the recipient's payment category was made in 
the one or more months identified in the notice;
    (ii) The correct amount of monthly benefits that the recipient is 
eligible to receive; and
    (iii) The recipient's appeal rights.
    (3) If an appeal is filed within 10 days after receipt of the 
written notice of the intent (see Sec. 416.1474 for criteria as to good 
cause for failure to file a timely appeal), the amount of payment to be 
continued, pending decision on appeal, shall be determined as follows:
    (i) Recipient in payment status. Where the recipient is in payment 
status, the payment shall be in the amount the recipient received in the 
month immediately preceding the month the dollar limitation was first 
exceeded (subject to intervening events which would have increased the 
benefit for the month in which the incorrect payment was made, in which 
case the higher amount shall be paid).
    (ii) Recipient in nonpayment status. If the recipient's benefits 
were suspended in the month immediately preceding the month the dollar 
limitation was first exceeded, the payment shall be

[[Page 880]]

based on that amount which should have been paid in the month in which 
the incorrect payment was made. However, if the individual's benefits 
had been correctly suspended as provided in Secs. 416.1321 through 
416.1330 and they should have remained suspended but a benefit that 
exceeded the dollar limitation was paid, no futher payment shall be made 
to him at this time and notice of the planned action shall not contain 
any provision regarding continuation of payment pending appeal.


For purposes of this paragraph, the date of receipt of the notice of 
planned action shall be presumed to be 5 days after the date on the face 
of such notice, unless there is a reasonable showing to the contrary.
    (4) The payment categories and dollar limitations are as follows:

                 Payment Category and Dollar Limitation

    (i) Federal supplemental security income benefit only.--$200.
    Recipients whose records indicate eligibility for Federal 
supplemental security income benefits for the month before the month the 
dollar limitation was first exceeded.
    (ii) Federal supplemental security income benefit and optional 
supplementation, or optional supplementation only.--$700
    Recipients whose records indicate they were eligible for Federal 
supplemental security income benefits plus federally-administered 
optional supplementation, or eligible for federally-administered 
optional supplementation only, for the month before the month the dollar 
limitation was first exceeded.
    (iii) Federal supplemental security income benefit and mandatory or 
other supplementation, or mandatory supplementation only.--$2,000
    Recipients whose records show eligibility for Federal supplemental 
security income benefits and federally-administered mandatory 
supplementation or essential person increment for the month before the 
month the dollar limitation was first exceeded. This category also 
includes those eligible for federally-administered mandatory 
supplementation only and those eligible for Federal supplemental 
security income benefits plus an essential person increment and 
federally-administered optional supplementation.

[43 FR 18170, Apr. 28, 1978]



Sec. 416.1338  If you are participating in a vocational rehabilitation program.

    (a) When your benefits based on disability may be continued. Your 
benefits may be continued after your impairment is no longer disabling 
if--
    (1) Your disability did not end before December 1980, the effective 
date of this provision of the law;
    (2) You are participating in a program of vocational rehabilitation 
that has been approved under a State plan approved under Title I of the 
Rehabilitation Act of 1973 and which meets the requirements of 34 CFR 
part 361 for a rehabilitation program;
    (3) You began the program before your disability ended; and
    (4) 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.
    (b) When your benefits will be stopped. Your benefits generally will 
be stopped with the month--
    (1) You complete the program;
    (2) You stop participating in the program for any reason; or
    (3) We determine that your continuing participation in the program 
will

[[Page 881]]

not significantly increase the likelihood that you may 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, provided 
that you are otherwise eligible for benefits through such month.

[47 FR 31544, July 21, 1982, as amended at 47 FR 52693, Nov. 23, 1982; 
51 FR 17618, May 14, 1986]



Subpart N--Determinations, Administrative Review Process, and Reopening 
                     of Determinations and Decisions

    Authority:  Sec. 702(a)(5), 1631, and 1633 of the Social Security 
Act (42 U.S.C. 902(a)(5), 1383, and 1383b).

    Source:  45 FR 52096, Aug. 5, 1980, unless otherwise noted.

          Introduction, Definitions, and Initial Determinations



Sec. 416.1400  Introduction.

    (a) Explanation of the administrative review process. This subpart 
explains the procedures we follow in determining your rights under title 
XVI of the Social Security Act. The regulations describe the process of 
administrative review and explain your right to judicial review after 
you have taken all the necessary administrative steps. The 
administrative review process consists of several steps, which usually 
must be requested within certain time periods and in the following 
order:
    (1) Initial determination. This is a determination we make about 
your eligibility or your continuing eligibility for benefits or about 
any other matter, as discussed in Sec. 416.1402, that gives you a right 
to further review.
    (2) Reconsideration. If you are dissatisfied with an initial 
determination, you may ask us to reconsider it.
    (3) Hearing before an administrative law judge. If you are 
dissatisfied with the reconsideration determination, you may request a 
hearing before an administrative law judge.
    (4) Appeals Council review. If you are dissatisfied with the 
decision of the administrative law judge, you may request that the 
Appeals Council review the decision.
    (5) Federal court review. When you have completed the steps of the 
administrative review process listed in paragraphs (a)(1) through (a)(4) 
of this section, we will have made our final decision. If you are 
dissatisfied with our final decision, you may request judicial review by 
filing an action in a Federal district court.
    (6) Expedited appeals process. At some time after your initial 
determination has been reviewed, if you have no dispute with our 
findings of fact and our application and interpretation of the 
controlling laws, but you believe that a part of the law is 
unconstitutional, you may use the expedited appeals process. This 
process permits you to go directly to a Federal district court so that 
the constitutional issue may be resolved.
    (b) Nature of the administrative review process. In making a 
determination or decision in your case, we conduct the administrative 
review process in an informal, nonadversary manner. In each step of the 
review process, you may present any information you feel is helpful to 
your case. Subject to the limitations on Appeals Council consideration 
of additional evidence (see Secs. 416.1470(b) and 416.1476(b)), we will 
consider at each step of the review process any information you present 
as well as all the information in our records. You may present the 
information yourself or have someone represent you, including an 
attorney. If you are dissatisfied with our decision in the review 
process, but do not take the next step within the stated time period, 
you will lose your right to further administrative review and your right 
to judicial review, unless you can show us that there was good cause for 
your failure to make a timely request for review.

[45 FR 52096, Aug. 5, 1980, as amended at 51 FR 305, Jan. 3, 1986; 52 FR 
4004, Feb. 9, 1987]



Sec. 416.1401  Definitions.

    As used in this subpart:
    Date you receive notice means 5 days after the date on the notice, 
unless you show us that you did not receive it within the 5-day period.

[[Page 882]]

    Decision means the decision made by an administrative law judge or 
the Appeals Council.
    Determination means the initial determination or the reconsidered 
determination.
    Mass change means a State-initiated change in the level(s) of 
federally administered State supplementary payments applicable to all 
recipients of such payments, or to categories of such recipients, due, 
for example, to State legislative or executive action.
    Remand means to return a case for further review.
    Vacate means to set aside a previous action.
    Waive means to give up a right knowingly and voluntarily.
    We, us, or our refers to the Social Security Administration.
    You or your refers to any person or the eligible spouse of any 
person claiming or receiving supplemental security income benefits.

[45 FR 52096, Aug. 5, 1980, as amended at 59 FR 43038, Aug. 22, 1994]



Sec. 416.1402  Administrative actions that are initial determinations.

    Initial determinations are the determinations we make that are 
subject to administrative and judicial review. The initial determination 
will state the important facts and give the reasons for our conclusions. 
Initial determinations regarding supplemental security income benefits 
include, but are not limited to, determinations about--
    (a) Your eligibility for, or the amount of, your supplemental 
security income benefits or your special SSI cash benefits under 
Sec. 416.262, except actions solely involving transitions to eligibility 
between these types of benefits (see Secs. 416.1403 (a)(13) and 
(a)(14)).
    (b) Suspension, reduction, or termination of your SSI benefits or 
special SSI cash benefits (see Secs. 416.261 and 416.262) or suspension 
or termination of your special SSI eligibility status (see Secs. 416.264 
through 416.269);
    (c) Whether an overpayment of benefits must be repaid to us;
    (d) Whether payments will be made, on your behalf, to a 
representative payee, unless you are under age 18, legally incompetent, 
or you are disabled and drug addiction or alcoholism is a contributing 
factor material to the determination of disability;
    (e) Who will act as your payee if we determine that representative 
payment will be made;
    (f) Imposing penalties for failing to report important information;
    (g) Your drug addiction or alcoholism;
    (h) Whether you are eligible for special SSI eligibility status 
under Sec. 416.265;
    (i) Your disability;
    (j) Whether your completion of or continuation for a specified 
period of time in an appropriate vocational rehabilitation program will 
significantly increase the likelihood that you will not have to return 
to the disability benefit rolls and thus, whether your benefits may be 
continued even though you are not disabled;
    (k) Whether or not you have a disabling impairment as defined in 
Sec. 416.911;
    (l) How much and to whom benefits due a deceased individual will be 
paid;
    (m) A claim for benefits under Sec. 416.351 based on alleged 
misinformation; and
    (n) Our calculation of the amount of change in your federally 
administered State supplementary payment amount (i.e., a reduction, 
suspension, or termination) which results from a mass change, as defined 
in Sec. 416.1401.

[45 FR 52096, Aug. 5, 1980, as amended at 47 FR 15325, Apr. 9, 1982; 49 
FR 22275, May 29, 1984; 58 FR 52913, Oct. 13, 1993; 59 FR 41405, Aug. 
12, 1994; 59 FR 43039, Aug. 22, 1994; 59 FR 44928, Aug. 31, 1994; 60 FR 
8153, Feb. 10, 1995; 60 FR 14215, Mar. 15, 1995]



Sec. 416.1403  Administrative actions that are not initial determinations.

    (a) Administrative actions that are not initial determinations may 
be reviewed by us, but they are not subject to the administrative review 
process provided by this subpart and they are not subject to judicial 
review. These actions include, but are not limited to, an action about--
    (1) Presumptive disability or presumptive blindness;
    (2) An emergency advance payment (as defined in Sec. 416.520(b));
    (3) Denial of a request to be made a representative payee;

[[Page 883]]

    (4) Denial of a request to use the expedited appeals process;
    (5) Denial of a request to reopen a determination or a decision;
    (6) The fee that may be charged or received by a person who has 
represented you in connection with a proceeding before us;
    (7) Disqualifying or suspending a person from acting as your 
representative in a proceeding before us (see Sec. 416.1545);
    (8) Denying your request to extend the time period for requesting 
review of a determination or a decision;
    (9) Determining whether (and the amount of) travel expenses incurred 
are reimbursable in connection with proceedings before us;
    (10) Denying your request to readjudicate your claim and apply an 
Acquiescence Ruling;
    (11) Determining whether an organization may collect a fee from you 
for expenses it incurs in serving as your representative payee (see 
Sec. 416.640a);
    (12) Declining under Sec. 416.351(f) to make a determination on a 
claim for benefits based on alleged misinformation because one or more 
of the conditions specified in Sec. 416.351(f) are not met;
    (13) Transition to eligibility for special SSI cash benefits 
(Sec. 416.262) in a month immediately following a month for which you 
were eligible for regular SSI benefits;
    (14) Transition to eligibility for regular SSI benefits in a month 
immediately following a month for which you were eligible for special 
SSI cash benefits (Sec. 416.262);
    (15) The determination to reduce, suspend, or terminate your 
federally administered State supplementary payments due to a State-
initiated mass change, as defined in Sec. 416.1401, in the levels of 
such payments, except as provided in Sec. 416.1402(n); and
    (16) Termination of Federal administration of State supplementary 
payments.
    (b) We send some notices of actions that are not initial 
determinations:
    (1) If you receive an emergency advance payment or presumptive 
disability or presumptive blindness payments, we will provide a notice 
explaining the nature and conditions of the payments.
    (2) If you receive presumptive disability or presumptive blindness 
payments, we shall send you a notice when these payments are exhausted.
    (3) If there is a termination of Federal administration of State 
supplementary payments.

[45 FR 52096, Aug. 5, 1980, as amended at 51 FR 8809, Mar. 14, 1986; 55 
FR 1020, Jan. 11, 1990; 55 FR 4423, Feb. 8, 1990; 57 FR 23058, June 1, 
1992; 59 FR 41405, Aug. 12, 1994; 59 FR 43039, Aug. 22, 1994; 59 FR 
44928, Aug. 31, 1994]



Sec. 416.1404  Notice of the initial determination.

    (a) We shall mail a written notice of the initial determination to 
you at your last known address. Generally, we will not send a notice if 
your benefits are stopped because of your death, or if the initial 
determination is a redetermination that your eligibility for benefits 
and the amount of your benefits have not changed.
    (b) The written notice that we send will tell you--
    (1) What our initial determination is;
    (2) The reasons for our determination; and
    (3) What rights you have to a reconsideration of the determination.
    (c) If our initial determination is that we must suspend, reduce or 
terminate your benefits, the notice will also tell you that you have a 
right to a reconsideration before the determination takes effect (see 
Sec. 416.1336).

[45 FR 52096, Aug. 5, 1980, as amended at 51 FR 305, Jan. 3, 1986]



Sec. 416.1405  Effect of an initial determination.

    An initial determination is binding unless you request a 
reconsideration within the stated time period, or we revise the initial 
determination.

[51 FR 305, Jan. 3, 1986]



Sec. 416.1406  Testing modifications to the disability determination procedures.

    (a) Applicability and scope. Notwithstanding any other provision in 
this part or part 422 of this chapter, we are establishing the 
procedures set out in this section to test modifications to our 
disability determination process. These modifications will enable us to 
test, either individually or in one or

[[Page 884]]

more combinations, the effect of: having disability claim managers 
assume primary responsibility for processing an application for SSI 
payments based on disability; providing persons who have applied for 
benefits based on disability with the opportunity for an interview with 
a decisionmaker when the decisionmaker finds that the evidence in the 
file is insufficient to make a fully favorable determination or requires 
an initial determination denying the claim; having a single 
decisionmaker make the initial determination with assistance from 
medical consultants, where appropriate; and eliminating the 
reconsideration step in the administrative review process and having a 
claimant who is dissatisfied with the initial determination request a 
hearing before an administrative law judge. The model procedures we test 
will be designed to provide us with information regarding the effect of 
these procedural modifications and enable us to decide whether and to 
what degree the disability determination process would be improved if 
they were implemented on a national level.
    (b) Procedures for cases included in the tests. Prior to commencing 
each test or group of tests in selected site(s), we will publish a 
notice in the Federal Register. The notice will describe which model or 
combinations of models we intend to test, where the specific test 
site(s) will be, and the duration of the test(s). The individuals who 
participate in the test(s) will be randomly assigned to a test group in 
each site where the tests are conducted. Paragraph (b) (1) through (4) 
of this section lists descriptions of each model.
    (1) In the disability claim manager model, when you file an 
application for SSI payments based on disability, a disability claim 
manager will assume primary responsibility for the processing of your 
claim. The disability claim manager will be the focal point for your 
contacts with us during the claims intake process and until an initial 
determination on your claim is made. The disability claim manager will 
explain the SSI disability program to you, including the definition of 
disability and how we determine whether you meet all the requirements 
for SSI payments based on disability. The disability claim manager will 
explain what you will be asked to do throughout the claims process and 
how you can obtain information or assistance through him or her. The 
disability claim manager will also provide you with information 
regarding your right to representation, and he or she will provide you 
with appropriate referral sources for representation. The disability 
claim manager may be either a State agency employee or a Federal 
employee. In some instances, the disability claim manager may be 
assisted by other individuals.
    (2) In the single decisionmaker model, the decisionmaker will make 
the disability determination and may also determine whether the other 
conditions of eligibility for SSI payments based on disability are met. 
The decisionmaker will make the disability determination after any 
appropriate consultation with a medical or psychological consultant. The 
medical or psychological consultant will not be required to sign the 
disability determination forms we use to have the State agency certify 
the determination of disability to us (see Sec. 416.1015). However, 
before an initial determination is made that a claimant is not disabled 
in any case where there is evidence which indicates the existence of a 
mental impairment, the decisionmaker will make every reasonable effort 
to ensure that a qualified psychiatrist or psychologist has completed 
the medical portion of the case review and any applicable residual 
functional capacity assessment pursuant to our existing procedures (see 
Sec. 416.1017). Similarly, in making an initial determination with 
respect to the disability of a child under age 18 claiming SSI payments 
based on disability, the decisionmaker will make reasonable efforts to 
ensure that a qualified pediatrician, or other individual who 
specializes in a field of medicine appropriate to the child's 
impairment(s), evaluates the claim of such child (see Sec. 416.903(f)). 
In some instances the decisionmaker may be the disability claim manager 
described in paragraph (b)(1) of this section. When the

[[Page 885]]

decisionmaker is a State agency employee, a team of individuals that 
includes a Federal employee will determine whether the other conditions 
of eligibility for SSI payments are met.
    (3) In the predecision interview model, if the decisionmaker(s) 
finds that the evidence in your file is insufficient to make a fully 
favorable determination or requires an initial determination denying 
your claim, a predecision notice will be mailed to you. The notice will 
tell you that, before the decisionmaker(s) makes an initial 
determination about whether you are disabled, you may request a 
predecision interview with the decisionmaker(s). The notice will also 
tell you that you may also submit additional evidence. You must request 
a predecision interview within 10 days after the date you receive the 
predecision notice. You must also submit any additional evidence within 
10 days after the date you receive the predecision notice. If you 
request a predecision interview, the decisionmaker(s) will conduct the 
predecision interview in person, by videoconference, or by telephone as 
the decisionmaker(s) determines is appropriate under the circumstances. 
If you make a late request for a predecision interview, or submit 
additional evidence late, but show in writing that you had good cause 
under the standards in Sec. 416.1411 for missing the deadline, the 
decisionmaker(s) will extend the deadline. If you do not request the 
predecision interview or if you do not appear for a scheduled 
predecision interview and do not submit additional evidence, or if you 
do not respond to our attempts to communicate with you, the 
decisionmaker(s) will make an initial determination based upon the 
evidence in your file. If you identify additional evidence during the 
predecision interview, which was previously not available, the 
decisionmaker(s) will advise you to submit the evidence. If you are 
unable to do so, the decisionmaker(s) may assist you in obtaining it. 
The decisionmaker(s) also will advise you of the specific timeframes you 
have for submitting any additional evidence identified during the 
predecision interview. If you have no treating source(s) (see 
Sec. 416.902), or your treating source(s) is unable or unwilling to 
provide the necessary evidence, or there is a conflict in the evidence 
that cannot be resolved through evidence from your treating source(s), 
the decisionmaker(s) may arrange a consultative examination or resolve 
conflicts according to existing procedures (see Sec. 416.919a). If you 
attend the predecision interview, or do not attend the predecision 
interview but you submit additional evidence, the decisionmaker(s) will 
make an initial determination based on the evidence in your file, 
including the additional evidence you submit or the evidence obtained as 
a result of the predecision notice or interview, or both.
    (4) In the reconsideration elimination model, we will modify the 
disability determination process by eliminating the reconsideration step 
of the administrative review process. If you receive an initial 
determination on your claim for SSI payments based on disability, and 
you are dissatisfied with the determination, we will notify you that you 
may request a hearing before an administrative law judge. If you request 
a hearing before an administrative law judge, we will apply our usual 
procedures contained in subpart N of this part.

[60 FR 20028, Apr. 24, 1995]

                             Reconsideration



Sec. 416.1407  Reconsideration--general.

    Reconsideration is the first step in the administrative review 
process that we provide if you are dissatisfied with the initial 
determination. If you are dissatisfied with our reconsideration 
determination, you may request a hearing before an administrative law 
judge.

[51 FR 305, Jan. 3, 1986]



Sec. 416.1408  Parties to a reconsideration.

    (a) Who may request a reconsideration. If you are dissatisfied with 
the initial determination, you may request that we reconsider it. In 
addition, a person who shows in writing that his or her rights may be 
adversely affected by the initial determination may request a 
reconsideration.

[[Page 886]]

    (b) Who are parties to a reconsideration. After a request for the 
reconsideration, you and any person who shows in writing that his or her 
rights are adversely affected by the initial determination will be 
parties to the reconsideration.



Sec. 416.1409  How to request reconsideration.

    (a) We shall reconsider an initial determination if you or any other 
party to the reconsideration files a written request at one of our 
offices within 60 days after the date you receive notice of the initial 
determination (or within the extended time period if we extend the time 
as provided in paragraph (b) of this section).
    (b) Extension of time to request a reconsideration. If you want a 
reconsideration of the initial determination but do not request one in 
time, you may ask us for more time to request a reconsideration. Your 
request for an extension of time must be in writing and it must give the 
reasons why the request for reconsideration was not filed within the 
stated time period. If you show us that you had good cause for missing 
the deadline, we will extend the time period. To determine whether good 
cause exists, we use the standards explained in Sec. 416.1411.



Sec. 416.1411  Good cause for missing the deadline to request review.

    (a) In determining whether you have shown that you have good cause 
for missing a deadline to request review we consider--
    (1) What circumstances kept you from making the request on time;
    (2) Whether our action misled you;
    (3) Whether you did not understand the requirements of the Act 
resulting from amendments to the Act, other legislation, or court 
decisions; and
    (4) Whether you had any physical, mental, educational, or linguistic 
limitations (including any lack of facility with the English language) 
which prevented you from filing a timely request or from understanding 
or knowing about the need to file a timely request for review.
    (b) Examples of circumstances where good cause may exist include, 
but are not limited to, the following situations:
    (1) You were seriously ill and were prevented from contacting us in 
person, in writing, or through a friend, relative, or other person.
    (2) There was a death or serious illness in your immediate family.
    (3) Important records were destroyed or damaged by fire or other 
accidental cause.
    (4) You were trying very hard to find necessary information to 
support your claim but did not find the information within the stated 
time periods.
    (5) You asked us for additional information explaining our action 
within the time limit, and within 60 days of receiving the explanation 
you requested reconsideration or a hearing, or within 30 days of 
receiving the explanation you requested Appeals Council review or filed 
a civil suit.
    (6) We gave you incorrect or incomplete information about when and 
how to request administrative review or to file a civil suit.
    (7) You did not receive notice of the initial determination or 
decision.
    (8) You sent the request to another Government agency in good faith 
within the time limit and the request did not reach us until after the 
time period had expired.
    (9) Unusual or unavoidable circumstances exist, including the 
circumstances described in paragraph (a)(4) of this section, which show 
that you could not have known of the need to file timely, or which 
prevented you from filing timely.

[45 FR 52096, Aug. 5, 1980, as amended at 59 FR 1637, Jan. 12, 1994]



Sec. 416.1413  Reconsideration procedures.

    If you request reconsideration, we will give you a chance to present 
your case. How you can present your case depends upon the issue involved 
and whether you are asking us to reconsider an initial determination on 
an application or an initial determination on a suspension, reduction or 
termination of benefits. The methods of reconsideration include the 
following:

[[Page 887]]

    (a) Case review. We will give you and the other parties to the 
reconsideration an opportunity to review the evidence in our files and 
then to present oral and written evidence to us. We will then make a 
decision based on all of this evidence. The official who reviews the 
case will make the reconsidered determination.
    (b) Informal conference. In addition to following the procedures of 
a case review, an informal conference allows you and the other parties 
to the reconsideration an opportunity to present witnesses. A summary 
record of this proceeding will become part of the case record. The 
official who conducts the informal conference will make the reconsidered 
determination.
    (c) Formal conference. In addition to following the procedures of an 
informal conference, a formal conference allows you and the other 
parties to a reconsideration an opportunity to request us to subpoena 
adverse witnesses and relevant documents and to cross-examine adverse 
witnesses. A summary record of this proceeding will become a part of the 
case record. The official who conducts the formal conference will make 
the reconsidered determination.
    (d) Disability hearing. If you have been receiving supplemental 
security income benefits because you are blind or disabled and you 
request reconsideration of an initial or revised determination that, 
based on medical factors, you are not now blind or disabled, we will 
give you and the other parties to the reconsideration an opportunity for 
a disability hearing. (See Secs. 416.1414 through 416.1418.)

[45 FR 52096, Aug. 5, 1980, as amended at 51 FR 305, Jan. 3, 1986]



Sec. 416.1413a  Reconsiderations of initial determinations on applications.

    The method of reconsideration we will use when you appeal an initial 
determination on your application for benefits depends on the issue 
involved in your case.
    (a) Nonmedical issues. If you challenge our finding on a nonmedical 
issue, we shall offer you a case review or an informal conference, and 
will reach our reconsidered determination on the basis of the review you 
select.
    (b) Medical issues. If you challenge our finding on a medical issue 
(even if you received payments because we presumed you were blind or 
disabled), we shall reach our reconsidered determination on the basis of 
a case review.

[45 FR 52096, Aug. 5, 1980. Redesignated at 51 FR 305, Jan. 3, 1986]



Sec. 416.1413b  Reconsideration procedures for post-eligiblity claims.

    If you are eligible for supplemental security income benefits and we 
notify you that we are going to suspend, reduce or terminate your 
benefits, you can appeal our determination within 60 days of the date 
you receive our notice. The 60-day period may be extended if you have 
good cause for an extension of time under the conditions stated in 
Sec. 416.1411(b). If you appeal a suspension, reduction, or termination 
of benefits, the method of reconsideration we will use depends on the 
issue in your case. If the issue in your case is that you are no longer 
blind or disabled for medical reasons, you will receive an opportunity 
for a disability hearing. If any other issue is involved, you have the 
choice of a case review, informal conference or formal conference.

[51 FR 305, Jan. 3, 1986]



Sec. 416.1413c  Arrangement for conferences.

    (a) As soon as we receive a request for a formal or informal 
conference, we shall set the time, date and place for the conference.
    (b) We shall send you and any other parties to the reconsideration a 
written notice about the conference (either by mailing it to your last 
known address or by personally serving you with it) at least 10 days 
before the conference. However, we may hold the conference sooner if we 
all agree. We will not send written notice of the time, date, and place 
of the conference if you waive your right to receive it.
    (c) We shall schedule the conference within 15 days after you 
request it, but, at our discretion or at your request, we will delay the 
conference if we think the delay will ensure that the conference is 
conducted efficiently and properly.

[[Page 888]]

    (d) We shall hold the conference at one of our offices, by telephone 
or in person, whichever you prefer. We will hold the conference 
elsewhere in person if you show circumstances that make this arrangement 
reasonably necessary.

[45 FR 52096, Aug. 5, 1980. Redesignated at 51 FR 305, Jan. 3, 1986]



Sec. 416.1414  Disability hearing--general.

    (a) Availability. We will provide you with an opportunity for a 
disability hearing if:
    (1) You have been receiving supplemental security income benefits 
based on a medical impairment that renders you blind or disabled;
    (2) We have made an initial or revised determination based on 
medical factors that you are not blind or disabled because your 
impairment:
    (i) Has ceased;
    (ii) Did not exist; or
    (iii) Is no longer disabling; and
    (3) You make a timely request for reconsideration of the initial or 
revised determination.
    (b) Scope. The disability hearing will address only the initial or 
revised determination, based on medical factors, that you are not now 
blind or disabled. Any other issues you raise in connection with your 
request for reconsideration will be reviewed in accordance with the 
reconsideration procedures described in Sec. 416.1413 (a) through (c).
    (c) Time and place--(1) General. Either the State agency or the 
Director of the Office of Disability Hearings or his or her delegate, as 
appropriate, will set the time and place of your disability hearing. We 
will send you a notice of the time and place of your disability hearing 
at least 20 days before the date of the hearing. You may be expected to 
travel to your disability hearing. (See Secs. 416.1495-416.1499 
regarding reimbursement for travel expenses.)
    (2) Change of time or place. If you are unable to travel or have 
some other reason why you cannot attend your disability hearing at the 
scheduled time or place, you should request at the earliest possible 
date that the time or place of your hearing be changed. We will change 
the time or place if there is good cause for doing so under the 
standards in Sec. 416.1436 (c) and (d).
    (d) Combined issues. If a disability hearing is available to you 
under paragraph (a) of this section, and you file a new application for 
benefits while your request for reconsideration is still pending, we may 
combine the issues on both claims for the purpose of the disability 
hearing and issue a combined initial/reconsidered determination which is 
binding with respect to the common issues on both claims.
    (e) Definition. For purposes of the provisions regarding disability 
hearings (Secs. 416.1414 through 416.1418) we, us, or our means the 
Social Security Administration or the State agency.

[51 FR 305, Jan. 3, 1986, as amended at 51 FR 8809, Mar. 14, 1986]



Sec. 416.1415  Disability hearing--disability hearing officers.

    (a) General. Your disability hearing will be conducted by a 
disability hearing officer who was not involved in making the 
determination you are appealing. The disability hearing officer will be 
an experienced disability examiner, regardless of whether he or she is 
appointed by a State agency or by the Director of the Office of 
Disability Hearings or his or her delegate, as described in paragraphs 
(b) and (c) of this section.
    (b) State agency hearing officers--(1) Appointment of State agency 
hearing officers. If a State agency made the initial or revised 
determination that you are appealing, the disability hearing officer who 
conducts your disability hearing may be appointed by a State agency. If 
the disability hearing officer is appointed by a State agency, that 
individual will be employed by an adjudicatory unit of the State agency 
other than the adjudicatory unit which made the determination you are 
appealing.
    (2) State agency defined. For purposes of this subpart, State agency 
means the adjudicatory component in the State which issues disability 
determinations.
    (c) Federal hearing officers. The disability hearing officer who 
conducts your disability hearing will be appointed by the Director of 
the Office of Disability Hearings or his or her delegate if:
    (1) A component of our office other than a State agency made the 
determination you are appealing; or

[[Page 889]]

    (2) The State agency does not appoint a disability hearing officer 
to conduct your disability hearing under paragraph (b) of this section.

[51 FR 305, Jan. 3, 1986]



Sec. 416.1416  Disability hearing--procedures.

    (a) General. The disability hearing will enable you to introduce 
evidence and present your views to a disability hearing officer if you 
are dissatisfied with an initial or revised determination, based on 
medical factors, that you are not now blind or disabled, as described in 
Sec. 416.1414(a)(2).
    (b) Your procedural rights. We will advise you that you have the 
following procedural rights in connection with the disability hearing 
process:
    (1) You may request that we assist you in obtaining pertinent 
evidence for your disability hearing and, if necessary, that we issue a 
subpoena to compel the production of certain evidence or testimony. We 
will follow subpoena procedures similar to those described in 
Sec. 416.1450(d) for the administrative law judge hearing process;
    (2) You may have a representative at the hearing appointed under 
subpart O of this part, or you may represent yourself;
    (3) You or your representative may review the evidence in your case 
file, either on the date of your hearing or at an earlier time at your 
request, and present additional evidence;
    (4) You may present witnesses and question any witnesses at the 
hearing; and
    (5) You may waive your right to appear at the hearing. If you do not 
appear at the hearing, the disability hearing officer will prepare and 
issue a written reconsidered determination based on the information in 
your case file.
    (c) Case preparation. After you request reconsideration, your case 
file will be reviewed and prepared for the hearing. This review will be 
conducted in the component of our office (including a State agency) that 
made the initial or revised determination, by personnel who were not 
involved in making the initial or revised determination. Any new 
evidence you submit in connection with your request for reconsideration 
will be included in this review. If necessary, further development of 
evidence, including arrangements for medical examinations, will be 
undertaken by this component. After the case file is prepared for the 
hearing, it will be forwarded by this component to the disability 
hearing officer for a hearing. If necessary, the case file may be sent 
back to this component at any time prior to the issuance of the 
reconsidered determination for additional development. Under paragraph 
(d) of this section, this component has the authority to issue a 
favorable reconsidered determination at any time in its development 
process.
    (d) Favorable reconsidered determination without a hearing. If the 
evidence in your case file supports a finding that you are now blind or 
disabled, either the component that prepares your case for hearing under 
paragraph (c) or the disability hearing officer will issue a written 
favorable reconsidered determination, even if a disability hearing has 
not yet been held.
    (e) Opportunity to submit additional evidence after the hearing. At 
your request, the disability hearing officer may allow up to 15 days 
after your disability hearing for receipt of evidence which is not 
available at the hearing, if:
    (1) The disability hearing officer determines that the evidence has 
a direct bearing on the outcome of the hearing; and
    (2) The evidence could not have been obtained before the hearing.
    (f) Opportunity to review and comment on evidence obtained or 
developed by us after the hearing. If, for any reason, additional 
evidence is obtained or developed by us after your disability hearing, 
and all evidence taken together can be used to support a reconsidered 
determination that is unfavorable to you with regard to the medical 
factors of eligibility, we will notify you, in writing, and give you an 
opportunity to review and comment on the additional evidence. You will 
be given 10 days from the date you receive our notice to submit your 
comments (in writing or, in appropriate cases, by telephone), unless 
there is good cause for granting you additional time, as illustrated by

[[Page 890]]

the examples in Sec. 416.1411(b). Your comments will be considered 
before a reconsidered determination is issued. If you believe that it is 
necessary to have further opportunity for a hearing with respect to the 
additional evidence, a supplementary hearing may be scheduled at your 
request. Otherwise, we will ask for your written comments on the 
additional evidence, or, in appropriate cases, for your telephone 
comments.

[51 FR 306, Jan. 3, 1986]



Sec. 416.1417  Disability hearing--disability hearing officer's reconsidered determination.

    (a) General. The disability hearing officer who conducts your 
disability hearing will prepare and will issue a written reconsidered 
determination, unless:
    (1) The disability hearing officer sends the case back for 
additional development by the component that prepared the case for the 
hearing, and that component issues a favorable determination, as 
permitted by Sec. 416.1416(c);
    (2) It is determined that you are engaging in substantial gainful 
activity and that you are therefore not disabled; or
    (3) The reconsidered determination prepared by the disability 
hearing officer is reviewed under Sec. 416.1418.
    (b) Content. The disability hearing officer's reconsidered 
determination will give the findings of fact and the reasons for the 
reconsidered determination. The reconsidered determination must be based 
on evidence offered at the disability hearing or otherwise included in 
your case file.
    (c) Notice. We will mail you and the other parties a notice of 
reconsidered determination in accordance with Sec. 416.1422.
    (d) Effect. The disability hearing officer's reconsidered 
determination, or, if it is changed under Sec. 416.1418, the 
reconsidered determination that is issued by the Director of the Office 
of Disability Hearings or his or her delegate, is binding in accordance 
with Sec. 416.1421, subject to the exceptions specified in that section.

[51 FR 306, Jan. 3, 1986]



Sec. 416.1418  Disability hearing--review of the disability hearing officer's reconsidered determination before it is issued.

    (a) General. The Director of the Office of Disability Hearings or 
his or her delegate may select a sample of disability hearing officers' 
reconsidered determinations, before they are issued, and review any such 
case to determine its correctness on any grounds he or she deems 
appropriate. The Director or his or her delegate shall review any case 
within the sample if:
    (1) There appears to be an abuse of discretion by the hearing 
officer;
    (2) There is an error of law; or
    (3) The action, findings or conclusions of the disability hearing 
officer are not supported by substantial evidence.

If the review indicates that the reconsidered determination prepared by 
the disability hearing officer is correct, it will be dated and issued 
immediately upon completion of the review. If the reconsidered 
determination prepared by the disability hearing officer is found by the 
Director or his or her delegate to be deficient, it will be changed as 
described in paragraph (b) of this section.
    (b) Methods of correcting deficiencies in the disability hearing 
officer's reconsidered determination. If the reconsidered determination 
prepared by the disability hearing officer is found by the Director or 
his or her delegate to be deficient, the Director of the Office of 
Disability Hearings or his or her delegate will take appropriate action 
to assure that the deficiency is corrected before a reconsidered 
determination is issued. The --ction taken by the Director or his or her 
delegate will take one of two forms:
    (1) The Director or his or her delegate may return the case file 
either to the component responsible for preparing the case for hearing 
or to the disability hearing officer, for appropriate further action; or
    (2) The Director or his or her delegate may issue a written 
reconsidered determination which corrects the deficiency.

[[Page 891]]

    (c) Further action on your case if it is sent back by the Director 
or his or her delegate either to the component that prepared your case 
for hearing or to the disability hearing officer. If the Director of the 
Office of Disability Hearings or his or her delegate sends your case 
back either to the component responsible for preparing the case for 
hearing or to the disability hearing officer for appropriate further 
action, as provided in paragraph (b)(1) of this section, any additional 
proceedings in your case will be governed by the disability hearing 
procedures described in Sec. 416.1416(f) or if your case is returned to 
the disability hearing officer and an unfavorable determination is 
indicated, a supplementary hearing may be scheduled for you before a 
reconsidered determination is reached in your case.
    (d) Opportunity to comment before the Director or his or her 
delegate issues a reconsidered determination that is unfavorable to you. 
If the Director of the Office of Disability Hearings or his or her 
delegate proposes to issue a reconsidered determination as described in 
paragraph (b)(2) of this section, and that reconsidered determination is 
unfavorable to you, her or she will send you a copy of the proposed 
reconsidered determination with an explanation of the reasons for it, 
and will give you an opportunity to submit written comments before it is 
issued. At your request, you will also be given an opportunity to 
inspect the pertinent materials in your case file, including the 
reconsidered determination prepared by the disability hearing officer, 
before submitting your comments. You will be given 10 days from the date 
you receive the Director's notice of proposed action to submit your 
written comments, unless additional time is necessary to provide access 
to the pertinent file materials or there is good cause for providing 
more time, as illustrated by the examples in Sec. 416.1411(b). The 
Director or his or her delegate will consider your comments before 
taking any further action on your case.

[51 FR 307, Jan. 3, 1986]



Sec. 416.1419  Notice of another person's request for reconsideration.

    If any other person files a request for reconsideration of the 
initial determination in your case, we shall notify you at your last 
known address before we reconsider the initial determination. We shall 
also give you an opportunity to present any evidence you think helpful 
to the reconsidered determination.

[45 FR 52096, Aug. 5, 1980. Redesignated at 51 FR 306, Jan. 3, 1986]



Sec. 416.1420  Reconsidered determination.

    After you or another person requests a reconsideration, we shall 
review the evidence considered in making the initial determination and 
any other evidence we receive. We shall make our determination based on 
this evidence. The person who makes the reconsidered determination shall 
have had no prior involvement with the initial determination.

[45 FR 52096, Aug. 5, 1980. Redesignated at 51 FR 307, Jan. 3, 1986]



Sec. 416.1421  Effect of a reconsidered determination.

    The reconsidered determination is binding unless--
    (a) You or any other party to the reconsideration requests a hearing 
before an administrative law judge within the stated time period and a 
decision is made;
    (b) The expedited appeals process is used; or
    (c) The reconsidered determination is revised.

[51 FR 307, Jan. 3, 1986]



Sec. 416.1422  Notice of a reconsidered determination.

    We shall mail a written notice of the reconsidered determination to 
the parties at their last known address. We shall state the specific 
reasons for the determination and tell you and any other parties of the 
right to a hearing. If it is appropriate, we will also tell

[[Page 892]]

you and any other parties how to use the expedited appeals process.

[45 FR 52096, Aug. 5, 1980. Redesignated at 51 FR 306, Jan. 3, 1986]

                        Expedited Appeals Process



Sec. 416.1423  Expedited appeals process--general.

    By using the expedited appeals process you may go directly to a 
Federal district court without first completing the administrative 
review process that is generally required before the court will hear 
your case.



Sec. 416.1424  When the expedited appeals process may be used.

    You may use the expedited appeals process if all of the following 
requirements are met:
    (a) We have made an initial and a reconsidered determination; an 
administrative law judge has made a hearing decision; or Appeals Council 
review has been requested, but a final decision has not been issued.
    (b) You are a party to the reconsidered determination or the hearing 
decision.
    (c) You have submitted a written request for the expedited appeals 
process.
    (d) You have claimed, and we agree, that the only factor preventing 
a favorable determination or decision is a provision in the law that you 
believe is unconstitutional.
    (e) If you are not the only party, all parties to the determination 
or decision agree to request the expedited appeals process.



Sec. 416.1425  How to request expedited appeals process.

    (a) Time of filing request. You may request the expedited appeals 
process--
    (1) Within 60 days after the date you receive notice of the 
reconsidered determination (or within the extended time period if we 
extend the time as provided in paragraph (c) of this section);
    (2) At any time after you have filed a timely request for a hearing 
but before you receive notice of the administrative law judge's 
decision;
    (3) Within 60 days after the date you receive a notice of the 
administrative law judge's decision or dismissal (or within the extended 
time period if we extend the time as provided in paragraph (c) of this 
section); or
    (4) At any time after you have filed a timely request for Appeals 
Council review, but before you receive notice of the Appeals Council's 
action.
    (b) Place of filing request. You may file a written request for the 
expedited appeals process at one of our offices.
    (c) Extension of time to request expedited appeals process. If you 
want to use the expedited appeals process but do not request it within 
the stated time period, you may ask for more time to submit your 
request. Your request for an extension of time must be in writing and it 
must give the reasons why the request for the expedited appeals process 
was not filed within the stated time period. If you show that you had 
good cause for missing the deadline, the time period will be extended. 
To determine whether good cause exists, we use the standards explained 
in Sec. 416.1411.



Sec. 416.1426  Agreement in expedited appeals process.

    If you meet all the requirements necessary for the use of the 
expedited appeals process, our authorized representative shall prepare 
an agreement. The agreement must be signed by you, by every other party 
to the determination or decision, and by our authorized representative. 
The agreement must provide that--
    (a) The facts in your claim are not in dispute;
    (b) The sole issue in dispute is whether a provision of the Act that 
applies to your case is unconstitutional;
    (c) Except for your belief that a provision of the Act is 
unconstitutional, you agree with our interpretation of the law;
    (d) If the provision of the Act that you believe is unconstitutional 
were not applied to your case, your claim would be allowed; and
    (e) Our determination or the decision is final for the purpose of 
seeking judicial review.



Sec. 416.1427  Effect of expedited appeals process agreement.

    After an expedited appeals process agreement is signed, you will not 
need to complete the remaining steps of the

[[Page 893]]

administrative review process. Instead, you may file an action in a 
Federal district court within 60 days after the date you receive notice 
(a signed copy of the agreement will be mailed to you and will 
constitute notice) that the agreement has been signed by our authorized 
representative.

[45 FR 52096, Aug. 5, 1980, as amended at 49 FR 46370, Nov. 26, 1984]



Sec. 416.1428  Expedited appeals process request that does not result in agreement.

    If you do not meet all of the requirements necessary to use the 
expedited appeals process, we shall tell you that your request to use 
this process is denied and that your request will be considered as a 
request for a hearing, or Appeals Council review, whichever is 
appropriate.

               Hearing Before an Administrative Law Judge



Sec. 416.1429  Hearing before an administrative law judge--general.

    If you are dissatisfied with one of the determinations or decisions 
listed in Sec. 416.1430 you may request a hearing. The Associate 
Commissioner for Hearings and Appeals, or his or her delegate, shall 
appoint an administrative law judge to conduct the hearing. If 
circumstances warrant, the Associate Commissioner, or his or her 
delegate, may assign your case to another administrative law judge. At 
the hearing you may appear in person, submit new evidence, examine the 
evidence used in making the determination or decision under review, and 
present and question witnesses. The administrative law judge who 
conducts the hearing may ask you questions. He or she shall issue a 
decision based on the hearing record. If you waive your right to appear 
at a hearing, the administrative law judge will make a decision based on 
the evidence that is in the file and any new evidence that may have been 
submitted for consideration.

[45 FR 52096, Aug. 5, 1980, as amended at 51 FR 307, Jan. 3, 1986]



Sec. 416.1430  Availability of a hearing before an administrative law judge.

    (a) You or another party may request a hearing before an 
administrative law judge if we have made--
    (1) A reconsidered determination;
    (2) A reconsideration of a revised determination of an initial or 
reconsidered determination that involves a suspension, reduction or 
termination of benefits;
    (3) A revised initial determination or revised reconsidered 
determination that does not involve a suspension, reduction or 
termination of benfits; or
    (4) A revised decision based on evidence not included in the record 
on which the prior decision was based.
    (b) We will hold a hearing only if you or another party to the 
hearing file a written request for a hearing.

[45 FR 52096, Aug. 5, 1980, as amended at 51 FR 307, Jan. 3, 1986]



Sec. 416.1432  Parties to a hearing before an administrative law judge.

    (a) Who may request a hearing. You may request a hearing if a 
hearing is available under Sec. 416.1430. In addition, a person who 
shows in writing that his or her rights may be adversely affected by the 
decision may request a hearing.
    (b) Who are parties to a hearing. After a request for a hearing is 
made, you, the other parties to the initial, reconsidered, or revised 
determination, and any other person who shows in writing that his or her 
rights may be adversely affected by the hearing, are parties to the 
hearing. In addition, any other person may be made a party to the 
hearing if his or her rights may be adversely affected by the decision, 
and the administrative law judge notifies the person to appear at the 
hearing or to present evidence supporting his or her interest.

[45 FR 52096, Aug. 5, 1980, as amended at 51 FR 307, Jan. 3, 1986]



Sec. 416.1433  How to request a hearing before an administrative law judge.

    (a) Written request. You may request a hearing by filing a written 
request. You should include in your request--
    (1) Your name and social security number;

[[Page 894]]

    (2) The name and social security number of your spouse, if any;
    (3) The reasons you disagree with the previous determination or 
decision;
    (4) A statement of additional evidence to be submitted and the date 
you will submit it; and
    (5) The name and address of any designated representative.
    (b) When and where to file. The request must be filed at one of our 
offices within 60 days after the date you receive notice of the previous 
determination or decision (or within the extended time period if we 
extend the time as provided in paragraph (c) of this section).
    (c) Extension of time to request a hearing. If you have a right to a 
hearing but do not request one in time, you may ask for more time to 
make your request. The request for an extension of time must be in 
writing and it must give the reasons why the request for a hearing was 
not filed within the stated time period. You may file your request for 
an extension of time at one of our offices. If you show that you had 
good cause for missing the deadline, the time period will be extended. 
To determine whether good cause exists, we use the standards explained 
in Sec. 416.1411.

[45 FR 52096, Aug. 5, 1980, as amended at 51 FR 307, Jan. 3, 1986]



Sec. 416.1435  Submitting evidence prior to a hearing before an administrative law judge.

    If possible, the evidence or a summary of evidence you wish to have 
considered at the hearing should be submitted to the administrative law 
judge with the request for hearing or within 10 days after filing the 
request. Each party shall make every effort to be sure that all material 
evidence is received by the administrative law judge or is available at 
the time and place set for the hearing.

[45 FR 52096, Aug. 5, 1980, as amended at 51 FR 307, Jan. 3, 1986]



Sec. 416.1436  Time and place for a hearing before an administrative law judge.

    (a) The administrative law judge sets the time and place for the 
hearing. He or she may change the time and place, if it is necessary. 
After sending the parties reasonable notice of the proposed action, the 
administrative law judge may adjourn or postpone the hearing or reopen 
it to receive additional evidence any time before he or she notifies the 
parties of a hearing decision. Hearings are held in the 50 States, the 
District of Columbia and the Northern Mariana Islands.
    (b) If you object to the time or place of the hearing, you must 
notify the administrative law judge at the earliest possible opportunity 
before the time set for the hearing. You must state the reason for your 
objection and state the time and place you want the hearing to be held. 
If possible, the request should be in writing. The administrative law 
judge will change the time or place of the hearing if you have good 
cause, as determined under paragraphs (c) and (d) of this section. 
Section 416.1438 provides procedures we will follow when you do not 
respond to a notice of hearing.
    (c) The administrative law judge will find good cause for changing 
the time or place of your scheduled hearing and will reschedule your 
hearing if your reason is one of the following circumstances and is 
supported by the evidence:
    (1) You or your representative are unable to attend or to travel to 
the scheduled hearing because of a serious physical or mental condition, 
incapacitating injury, or death in the family; or
    (2) Severe weather conditions make it impossible to travel to the 
hearing.
    (d) In determining whether good cause exists in circumstances other 
than those set out in paragraph (c) of this section, the administrative 
law judge will consider your reason for requesting the change, the facts 
supporting it, and the impact of the proposed change on the efficient 
administration of the hearing process. Factors affecting the impact of 
the change include, but are not limited to, the effect on the processing 
of other scheduled hearings, delays which might occur in rescheduling 
your hearing, and whether any prior changes were granted to you. 
Examples of such other circumstances, which you might give for 
requesting a

[[Page 895]]

change in the time or place of the hearing, include, but are not limited 
to, the following:
    (1) You have attempted to obtain a representative but need 
additional time;
    (2) Your representative was appointed within 30 days of the 
scheduled hearing and needs additional time to prepare for the hearing;
    (3) Your representative has a prior commitment to be in court or at 
another administrative hearing on the date scheduled for the hearing;
    (4) A witness who will testify to facts material to your case would 
be unavailable to attend the scheduled hearing and the evidence cannot 
be otherwise obtained;
    (5) Transportation is not readily available for you to travel to the 
hearing;
    (6) You live closer to another hearing site; or
    (7) You are unrepresented, and you are unable to respond to the 
notice of hearing because of a physical, mental, educational, or 
linguistic limitation (including any lack of facility with the English 
language) which you may have.

[45 FR 52096, Aug. 5, 1980, as amended at 50 FR 21438, May 24, 1985; 51 
FR 307, Jan. 3, 1986; 59 FR 1637, Jan. 12, 1994]



Sec. 416.1438  Notice of a hearing before an administrative law judge.

    After the administrative law judge sets the time and place of the 
hearing, notice of the hearing will be mailed to the parties at their 
last known addresses, or given by personal service, unless you have 
indicated in writing that you do not wish to receive this notice. The 
notice will be mailed or served at least 20 days before the hearing. The 
notice of hearing will contain a statement of the specific issues to be 
decided and tell you that you may designate a person to represent you 
during the proceedings. The notice will also contain an explanation of 
the procedures for requesting a change in the time or place of your 
hearing, a reminder that if you fail to appear at your scheduled hearing 
without good cause the ALJ may dismiss your hearing request, and other 
information about the scheduling and conduct of your hearing. If you or 
your representative do not acknowledge receipt of the notice of hearing, 
we will attempt to contact you for an explanation. If you tell us that 
you did not receive the notice of hearing, an amended notice will be 
sent to you by certified mail. See Sec. 416.1436 for the procedures we 
will follow in deciding whether the time or place of your scheduled 
hearing will be changed if you do not respond to the notice of hearing.

[50 FR 21439, May 24, 1985, as amended at 51 FR 307, Jan. 3, 1986]



Sec. 416.1439  Objections to the issues.

    If you object to the issues to be decided upon at the hearing, you 
must notify the administrative law judge in writing at the earliest 
possible opportunity before the time set for the hearing. You must state 
the reasons for your objections. The administrative law judge shall make 
a decision on your objections either in writing or at the hearing.



Sec. 416.1440  Disqualification of the administrative law judge.

    An administrative law judge shall not conduct a hearing if he or she 
is prejudiced or partial with respect to any party or has any interest 
in the matter pending for decision. If you object to the administrative 
law judge who will conduct the hearing, you must notify the 
administrative law judge at your earliest opportunity. The 
administrative law judge shall consider your objections and shall decide 
whether to proceed with the hearing or withdraw. If he or she withdraws, 
the Associate Commissioner for Hearings and Appeals, or his or her 
delegate, will appoint another administrative law judge to conduct the 
hearing. If the administrative law judge does not withdraw, you may, 
after the hearing, present your objections to the Appeals Council as 
reasons why the hearing decision should be revised or a new hearing held 
before another administrative law judge.



Sec. 416.1441  Prehearing case review.

    (a) General. After a hearing is requested but before it is held, we 
may, for the purposes of a prehearing case review, forward the case to 
the component of our office (including a State

[[Page 896]]

agency) that issued the determination being reviewed. That component 
will decide whether the determination may be revised. A revised 
determination may be wholly or partially favorable to you. A prehearing 
case review will not delay the scheduling of a hearing unless you agree 
to continue the review and delay the hearing. If the prehearing case 
review is not completed before the date of the hearing, the case will be 
sent to the administrative law judge unless a favorable revised 
determination is in process or you and the other parties to the hearing 
agree in writing to delay the hearing until the review is completed.
    (b) When a prehearing case review may be conducted. We may conduct a 
prehearing case review if--
    (1) Additional evidence is submitted;
    (2) There is an indication that additional evidence is available;
    (3) There is a change in the law or regulation; or
    (4) There is an error in the file or some other indication that the 
prior determination may be revised.
    (c) Notice of a prehearing revised determination. If we revise the 
determination in a prehearing case review, we shall mail written notice 
of the revised determination to all parties at their last known address. 
We will state the basis for the revised determination and advise all 
parties of their right to request a hearing on the revised determination 
within 60 days after the date of receiving this notice.
    (d) Revised determination wholly favorable. If the revised 
determination is wholly favorable to you, we shall tell you in the 
notice that the administrative law judge will dismiss the hearing 
request unless a party requests that the hearing proceed. A request to 
continue must be made in writing within 30 days after the date the 
notice of the revised determination is mailed.
    (e) Revised determination partially favorable. If the revised 
determination is partially favorable to you, we shall tell you in the 
notice what was not favorable. We shall also tell you that the hearing 
you requested will be held unless you, the parties to the revised 
determination and the parties to the hearing tell us that all parties 
agree to dismiss the hearing request.



Sec. 416.1442  Prehearing proceedings and decisions by attorney advisors.

    (a) General. After a hearing is requested but before it is held, an 
attorney advisor in our Office of Hearings and Appeals may conduct 
prehearing proceedings as set out in paragraph (c) of this section. If 
upon the completion of these proceedings, a decision that is wholly 
favorable to you and all other parties may be made, an attorney advisor, 
instead of an administrative law judge, may issue such a decision. The 
conduct of the prehearing proceedings by the attorney advisor will not 
delay the scheduling of a hearing. If the prehearing proceedings are not 
completed before the date of the hearing, the case will be sent to the 
administrative law judge unless a wholly favorable decision is in 
process or you and all other parties to the hearing agree in writing to 
delay the hearing until the proceedings are completed.
    (b) When prehearing proceedings may be conducted by an attorney 
advisor. An attorney advisor may conduct prehearing proceedings if you 
have filed a claim for SSI benefits based on disability and--
    (1) New and material evidence is submitted;
    (2) There is an indication that additional evidence is available;
    (3) There is a change in the law or regulations; or
    (4) There is an error in the file or some other indication that a 
wholly favorable decision may be issued.
    (c) Nature of the prehearing proceedings that may be conducted by an 
attorney advisor. As part of the prehearing proceedings, the attorney 
advisor, in addition to reviewing the existing record, may--
    (1) Request additional evidence that may be relevant to the claim, 
including medical evidence; and
    (2) If necessary to clarify the record for the purpose of 
determining if a wholly favorable decision is warranted, schedule a 
conference with the parties.
    (d) Notice of a decision by an attorney advisor. If the attorney 
advisor issues a wholly favorable decision under this section, we shall 
mail a written notice of the decision to all parties at their last known 
address. We shall state the basis for the decision and advise all

[[Page 897]]

parties that an administrative law judge will dismiss the hearing 
request unless a party requests that the hearing proceed. A request to 
proceed with the hearing must be made in writing within 30 days after 
the date the notice of the decision of the attorney advisor is mailed.
    (e) Effect of actions under this section. If under this section, an 
administrative law judge dismisses a request for a hearing, the 
dismissal is binding in accordance with Sec. 416.1459 unless it is 
vacated by an administrative law judge or the Appeals Council pursuant 
to Sec. 416.1460. A decision made by an attorney advisor under this 
section is binding unless--
    (1) A party files a request to proceed with the hearing pursuant to 
paragraph (d) of this section and an administrative law judge makes a 
decision;
    (2) The Appeals Council reviews the decision on its own motion 
pursuant to Sec. 416.1469 as explained in paragraph (f)(3) of this 
section; or
    (3) The decision of the attorney advisor is revised under the 
procedures explained in Sec. 416.1487.
    (f) Ancillary provisions. For the purposes of the procedures 
authorized by this section, the regulations of part 416 shall apply to--
    (1) Authorize an attorney advisor to exercise the functions 
performed by an administrative law judge under Secs. 416.920a, 
416.924d(b), and 416.946;
    (2) Define the term ``decision'' to include a decision made by an 
attorney advisor, as well as the decisions identified in Sec. 416.1401; 
and
    (3) Make the decision of an attorney advisor subject to review by 
the Appeals Council under Sec. 416.1469 if an administrative law judge 
dismisses the request for a hearing following issuance of the decision, 
and the Appeals Council decides to review the decision of the attorney 
advisor anytime within 60 days after the date of the dismissal.
    (g) Sunset provision. The provisions of this section will no longer 
be effective on June 30, 1997 unless they are extended by the 
Commissioner of Social Security by publication of a final rule in the 
Federal Register.

[60 FR 34132, June 30, 1995]



Sec. 416.1443  Responsibilities of the adjudication officer.

    (a)(1) General. Under the procedures set out in this section we will 
test modifications to the procedures we follow when you file a request 
for a hearing before an administrative law judge in connection with a 
claim for benefits based on disability where the question of whether you 
are under a disability as defined in Secs. 416.905 and 416.906 is at 
issue. These modifications will enable us to test the effect of having 
an adjudication officer be your primary point of contact after you file 
a hearing request and before you have a hearing with an administrative 
law judge. The tests may be conducted alone, or in combination with the 
tests of the modifications to the disability determination procedures 
which we conduct under Sec. 416.1406. The adjudication officer, working 
with you and your representative, if any, will identify issues in 
dispute, develop evidence, conduct informal conferences, and conduct any 
other prehearing proceeding as may be necessary. The adjudication 
officer has the authority to make a decision wholly favorable to you if 
the evidence so warrants. If the adjudication officer does not make a 
decision on your claim, your hearing request will be assigned to an 
administrative law judge for further proceedings.
    (2) Procedures for cases included in the tests. Prior to commencing 
tests of the adjudication officer position in selected site(s), we will 
publish a notice in the Federal Register. The notice will describe where 
the specific test site(s) will be and the duration of the test(s). We 
will also state whether the tests of the adjudication officer position 
in each site will be conducted alone, or in combination with the tests 
of the modifications to the disability determination procedures which we 
conduct under Sec. 416.1406. The individuals who participate in the 
test(s) will be assigned randomly to a test group in each site where the 
tests are conducted.
    (b)(1) Prehearing procedures conducted by an Adjudication Officer. 
When you file a request for a hearing before an administrative law judge 
in connection with a claim for benefits based on disability where the 
question of whether

[[Page 898]]

you are under a disability as defined in Secs. 416.905 and 416.906 is at 
issue, the adjudication officer will conduct an interview with you. The 
interview may take place in person, by telephone, or by videoconference, 
as the adjudication officer determines is appropriate under the 
circumstances of your case. If you file a request for an extension of 
time to request a hearing in accordance with Sec. 416.1433(c), the 
adjudication officer may develop information on, and may decide where 
the adjudication officer issues a wholly favorable decision to you that 
you had good cause for missing the deadline for requesting a hearing. To 
determine whether you had good cause for missing the deadline, the 
adjudication officer will use the standards contained in Sec. 416.1411.
    (2) Representation. The adjudication officer will provide you with 
information regarding the hearing process, including your right to 
representation. As may be appropriate, the adjudication officer will 
provide you with referral sources for representation, and give you 
copies of necessary documents to facilitate the appointment of a 
representative. If you have a representative, the adjudication officer 
will conduct an informal conference with the representative, in person 
or by telephone, to identify the issues in dispute and prepare proposed 
written agreements for the approval of the administrative law judge 
regarding those issues which are not in dispute and those issues 
proposed for the hearing. If you decide to proceed without 
representation, the adjudication officer may hold an informal conference 
with you. If you obtain representation after the adjudication officer 
has concluded that your case is ready for a hearing, the administrative 
law judge will return your case to the adjudication officer who will 
conduct an informal conference with you and your representative.
    (3) Evidence. You, or your representative, may submit, or may be 
asked to obtain and submit, additional evidence to the adjudication 
officer. As the adjudication officer determines is appropriate under the 
circumstances of your case, the adjudication officer may refer the claim 
for further medical or vocational evidence.
    (4) Referral for a hearing. The adjudication officer will refer the 
claim to the administrative law judge for further proceedings when the 
development of evidence is complete, and you or your representative 
agree that a hearing is ready to be held. If you or your representative 
are unable to agree with the adjudication officer that the development 
of evidence is complete, the adjudication officer will note your 
disagreement and refer the claim to the administrative law judge for 
further proceedings. At this point, the administrative law judge 
conducts all further hearing proceedings, including scheduling and 
holding a hearing, (Sec. 416.1436), considering any additional evidence 
or arguments submitted (Secs. 416.1435, 416.1444, 416.1449, 416.1450), 
and issuing a decision or dismissal of your request for a hearing, as 
may be appropriate (Secs. 416.1448, 416.1453, 416.1457). In addition, if 
the administrative law judge determines on or before the date of your 
hearing that the development of evidence is not complete, the 
administrative law judge may return the claim to the adjudication 
officer to complete the development of the evidence and for such other 
action as necessary.
    (c)(1) Wholly favorable decisions issued by an adjudication officer. 
If, after a hearing is requested but before it is held, the adjudication 
officer decides that the evidence in your case warrants a decision which 
is wholly favorable to you, the adjudication officer may issue such a 
decision. For purposes of the tests authorized under this section, the 
adjudication officer's decision shall be considered to be a decision as 
defined in Sec. 416.1401. If the adjudication officer issues a decision 
under this section, it will be in writing and will give the findings of 
fact and the reasons for the decision. The adjudication officer will 
evaluate the issues relevant to determining whether or not you are 
disabled in accordance with the provisions of the Social Security Act, 
the rules in this part and part 422 of this chapter and applicable 
Social Security Rulings. For cases in which the adjudication officer 
issues a decision, he or she may determine your residual functional 
capacity in the same manner that an administrative law judge is

[[Page 899]]

authorized to do so in Sec. 416.946. The adjudication officer may also 
evaluate the severity of your mental impairments in the same manner that 
an administrative law judge is authorized to do so under Sec. 416.920a. 
The adjudication officer's decision will be based on the evidence which 
is included in the record and, subject to paragraph (c)(2) of this 
section, will complete the actions that will be taken on your request 
for hearing. A copy of the decision will be mailed to all parties at 
their last known address. We will tell you in the notice that the 
administrative law judge will not hold a hearing unless a party to the 
hearing requests that the hearing proceed. A request to proceed with the 
hearing must be made in writing within 30 days after the date the notice 
of the decision of the adjudication officer is mailed.
    (2) Effect of a decision by an adjudication officer. A decision by 
an adjudication officer which is wholly favorable to you under this 
section, and notification thereof, completes the administrative action 
on your request for hearing and is binding on all parties to the hearing 
and not subject to further review, unless--
    (i) You or another party requests that the hearing continue, as 
provided in paragraph (c)(1) of this section;
    (ii) The Appeals Council decides to review the decision on its own 
motion under the authority provided in Sec. 416.1469;
    (iii) The decision is revised under the procedures explained in 
Secs. 416.1487 through 416.1489; or
    (iv) In a case remanded by a Federal court, the Appeals Council 
assumes jurisdiction under the procedures in Sec. 416.1484.
    (3) Fee for a representative's services. The adjudication officer 
may authorize a fee for your representative's services if the 
adjudication officer makes a decision on your claim that is wholly 
favorable to you, and you are represented. The actions of, and any fee 
authorization made by, the adjudication officer with respect to 
representation will be made in accordance with the provisions of subpart 
O of this part.
    (d) Who may be an adjudication officer. The adjudication officer 
described in this section may be an employee of the Social Security 
Administration or a State agency that makes disability determinations 
for us.

[60 FR 47476, Sept. 13, 1995]

               Administrative Law Judge Hearing Procedures



Sec. 416.1444  Administrative law judge hearing procedures--general.

    A hearing is open to the parties and to other persons the 
administrative law judge considers necessary and proper. At the hearing 
the administrative law judge looks fully into the issues, questions you 
and the other witnesses, and accepts as evidence any documents that are 
material to the issues. The administrative law judge may stop the 
hearing temporarily and continue it at a later date if he or she 
believes that there is material evidence missing at the hearing. The 
administrative law judge may also reopen the hearing at any time before 
he or she mails a notice of the decision in order to receive new and 
material evidence. The administrative law judge may decide when the 
evidence will be presented and when the issues will be discussed.

[45 FR 52096, Aug. 5, 1980, as amended at 51 FR 307, Jan. 3, 1986]



Sec. 416.1446  Issues before an administrative law judge.

    (a) General. The issues before the administrative law judge include 
all the issues brought out in the initial, reconsidered or revised 
determination that were not decided entirely in your favor. However, if 
evidence presented before or during the hearing causes the 
administrative law judge to question a fully favorable determination, he 
or she will notify you and will consider it an issue at the hearing.
    (b) New issues--(1) General. The administrative law judge may 
consider a new issue at the hearing if he or she notifies you and all 
the parties about the new issue any time after receiving the hearing 
request and before mailing notice of the hearing decision. The 
administrative law judge or any party may raise a new issue; an issue 
may be raised even though it arose after the request for a hearing and 
even though it has not been considered in an initial

[[Page 900]]

or reconsidered determination. However, it may not be raised if it 
involves a claim that is within the jurisdiction of a State agency under 
a Federal-State agreement concerning the determination of disability.
    (2) Notice of a new issue. The administrative law judge shall notify 
you and any other party if he or she will consider any new issue. Notice 
of the time and place of the hearing on any new issues will be given in 
the manner described in Sec. 416.1438, unless you have indicated in 
writing that you do not wish to receive the notice.

[45 FR 52096, Aug. 5, 1980, as amended at 51 FR 307, Jan. 3, 1986]



Sec. 416.1448  Deciding a case without an oral hearing before an administrative law judge.

    (a) Decision wholly favorable. If the evidence in the hearing record 
supports a finding in favor of you and all the parties on every issue, 
the administrative law judge may issue a hearing decision without 
holding an oral hearing. However, the notice of the decision will inform 
you that you have the right to an oral hearing and that you have a right 
to examine the evidence on which the decision is based.
    (b) Parties do not wish to appear. (1) The administrative law judge 
may decide a case on the record and not conduct an oral hearing if--
    (i) You and all the parties indicate in writing that you do not wish 
to appear before the administrative law judge at an oral hearing; or
    (ii) You live outside the United States and you do not inform us 
that you want to appear and there are no other parties who wish to 
appear.
    (2) When an oral hearing is not held, the administrative law judge 
shall make a record of the material evidence. The record will include 
the applications, written statements, certificates, reports, affidavits, 
and other documents which were used in making the determination under 
review and any additional evidence you or any other party to the hearing 
present in writing. The decision of the administrative law judge must be 
based on this record.
    (c) Case remanded for a revised determination. (1) The 
administrative law judge may remand a case to the appropriate component 
of our office for a revised determination if there is reason to believe 
that the revised determination would be fully favorable to you. This 
could happen if the administrative law judge receives new and material 
evidence or if there is a change in the law that permits the favorable 
determination.
    (2) Unless you request the remand the administrative law judge shall 
notify you that your case has been remanded and tell you that if you 
object, you must notify him or her of your objections within 10 days of 
the date the case is remanded or we will assume that you agree to the 
remand. If you object to the remand, the administrative law judge will 
consider the objection and rule on it in writing.

[45 FR 52096, Aug. 5, 1980, as amended at 51 FR 307, Jan. 3, 1986]



Sec. 416.1449  Presenting written statements and oral arguments.

    You or a person you designate to act as your representative may 
appear before the administrative law judge to state your case, to 
present a written summary of your case, or to enter written statements 
about the facts and law material to your case into the record. A copy of 
your written statements should be filed for each party.



Sec. 416.1450  Presenting evidence at a hearing before an administrative law judge.

    (a) The right to appear and present evidence. Any party to a hearing 
has the right to appear before the administrative law judge, either 
personally or by means of a designated representative, to present 
evidence and to state his or her position.
    (b) Waiver of the right to appear. You may send the administrative 
law judge a waiver or a written statement indicating that you do not 
wish to appear at the hearing. You may withdraw this waiver any time 
before a notice of the hearing decision is mailed to you. Even if all of 
the parties waive their right to appear at a hearing, the administrative 
law judge may notify them of a time and a place for an oral hearing, if 
he or she believes that a personal appearance

[[Page 901]]

and testimony by you or any other party is necessary to decide the case.
    (c) What evidence is admissible at a hearing. The administrative law 
judge may receive evidence at the hearing even though the evidence would 
not be admissible in court under the rules of evidence used by the 
court.
    (d) Subpoenas. (1) When it is reasonably necessary for the full 
presentation of a case, an administrative law judge or a member of the 
Appeals Council may, on his or her own initiative or at the request of a 
party, issue subpoenas for the appearance and testimony of witnesses and 
for the production of books, records, correspondence, papers, or other 
documents that are material to an issue at the hearing.
    (2) Parties to a hearing who wish to subpoena documents or witnesses 
must file a written request for the issuance of a subpoena with the 
administrative law judge or at one of our offices at least 5 days before 
the hearing date. The written request must give the names of the 
witnesses or documents to be produced; describe the address or location 
of the witnesses or documents with sufficient detail to find them; state 
the important facts that the witness or document is expected to prove; 
and indicate why these facts could not be proven without issuing a 
subpoena.
    (3) We will pay the cost of issuing the subpoena.
    (4) We will pay subpoenaed witnesses the same fees and mileage they 
would receive if they had been subpoenaed by a Federal district court.
    (e) Witnesses at a hearing. Witnesses may appear at a hearing. They 
shall testify under oath or affirmation, unless the administrative law 
judge finds an important reason to excuse them from taking an oath or 
affirmation. The administrative law judge may ask the witnesses any 
questions material to the issues and shall allow the parties or their 
designated representatives to do so.
    (f) Collateral estoppel--issues previously decided. An issue at your 
hearing may be a fact that has already been decided in one of our 
previous determinations or decisions in a claim involving the same 
parties, but arising under a different title of the Act or under the 
Federal Coal Mine Health and Safety Act. If this happens, the 
administrative law judge will not consider the issue again, but will 
accept the factual finding made in the previous determination or 
decision unless there are reasons to believe that it was wrong.

[45 FR 52096, Aug. 5, 1980, as amended at 51 FR 307, Jan. 3, 1986]



Sec. 416.1451  When a record of a hearing before an administrative law judge is made.

    The administrative law judge shall make a complete record of the 
hearing proceedings. The record will be prepared as a typed copy of the 
proceedings if--
    (a) The case is sent to the Appeals Council without a decision or 
with a recommended decision by the administrative law judge;
    (b) You seek judicial review of your case by filing an action in a 
Federal district court within the stated time period, unless we request 
the court to remand the case; or
    (c) An administrative law judge or the Appeals Council asks for a 
written record of the proceedings.

[45 FR 52096, Aug. 5, 1980, as amended at 51 FR 308, Jan. 3, 1986]



Sec. 416.1452  Consolidated hearings before an administrative law judge.

    (a) General. (1) A consolidated hearing may be held if--
    (i) You have requested a hearing to decide your eligibility for 
supplemental security income benefits and you have also requested a 
hearing to decide your rights under another law we administer; and
    (ii) One or more of the issues to be considered at the hearing you 
requested are the same issues that are involved in another claim you 
have pending before us.
    (2) If the administrative law judge decides to hold the hearing on 
both claims, he or she decides both claims, even if we have not yet made 
an initial or reconsidered determination on the other claim.
    (b) Record, evidence, and decision. There will be a single record at 
a consolidated hearing. This means that the

[[Page 902]]

evidence introduced in one case becomes evidence in the other(s). The 
administrative law judge may make either a separate or consolidated 
decision.

[45 FR 52096, Aug. 5, 1980, as amended at 51 FR 308, Jan. 3, 1986]



Sec. 416.1453  The decision of an administrative law judge.

    (a) General. The administrative law judge shall issue a written 
decision which gives the findings of fact and the reasons for the 
decision. The decision must be based on evidence offered at the hearing 
or otherwise included in the record. The administrative law judge shall 
mail a copy of the decision to all the parties at their last known 
address. The Appeals Council may also receive a copy of the decision.
    (b) Time for the administrative law judge's decision. (1) The 
administrative law judge must issue the hearing decision no later than 
90 days after the request for hearing is filed, unless--
    (i) The matter to be decided is whether you are disabled; or
    (ii) There is good cause for extending the time period because of 
unavoidable circumstances.
    (2) Good cause for extending the time period may be found under the 
following circumstances:
    (i) Delay caused by you or by your representative's action. The time 
period for decision in this instance may be extended by the total number 
of days of the delays. The delays include delays in submitting evidence, 
briefs, or other statements, postponements or adjournments made at your 
request, and any other delays caused by you or your representative.
    (ii) Other delays. The time period for decision may be extended 
where delays occur through no fault of the Secretary. In this instance, 
the decision will be issued as soon as practicable.
    (c) Recommended decision. Although an administrative law judge will 
usually make a decision, he or she may send the case to the Appeals 
Council with a recommended decision where appropriate. The 
administrative law judge will mail a copy of the recommended decision to 
the parties at their last known addresses and send the recommended 
decision to the Appeals Council.

[45 FR 52096, Aug. 5, 1980, as amended at 51 FR 308, Jan. 3, 1986; 54 FR 
37793, Sept. 13, 1989]



Sec. 416.1455  The effect of an administrative law judge's decision.

    The decision of the administrative law judge is binding on all 
parties to the hearing unless--
    (a) You or another party request a review of the decision by the 
Appeals Council within the stated time period, and the Appeals Council 
reviews your case;
    (b) You or another party requests a review of the decision by the 
Appeals Council within the stated time period, the Appeals Council 
denies your request for review, and you seek judicial review of your 
case by filing an action in a Federal district court;
    (c) The decision is revised by an administrative law judge or the 
Appeals Council under the procedures explained in Sec. 416.1487;
    (d) The expedited appeals process is used;
    (e) The decision is a recommended decision directed to the Appeals 
Council; or
    (f) In a case remanded by a Federal court, the Appeals Council 
assumes jurisdiction under the procedures in Sec. 416.1484.

[45 FR 52096, Aug. 5, 1980, as amended at 51 FR 308, Jan. 3, 1986; 54 FR 
37793, Sept. 13, 1989]



Sec. 416.1456  Removal of a hearing request from an administrative law judge to the Appeals Council.

    If you have requested a hearing and the request is pending before an 
administrative law judge, the Appeals Council may assume responsibility 
for holding a hearing by requesting that the administrative law judge 
send the hearing request to it. If the Appeals Council holds a hearing, 
it shall conduct the hearing according to the rules for hearings before 
an administrative law judge. Notice shall be mailed to all parties at 
their last known address telling them that the Appeals Council

[[Page 903]]

has assumed responsibility for the case.

[45 FR 52096, Aug. 5, 1980, as amended at 51 FR 308, Jan. 3, 1986]



Sec. 416.1457  Dismissal of a request for a hearing before an administrative law judge.

    An administrative law judge may dismiss a request for a hearing 
under any of the following conditions:
    (a) At any time before notice of the hearing decision is mailed, you 
or the party or parties that requested the hearing ask to withdraw the 
request. This request may be submitted in writing to the administrative 
law judge or made orally at the hearing.
    (b)(1)(i) Neither you nor the person you designate to act as your 
representative appears at the time and place set for the hearing and you 
have been notified before the time set for the hearing that your request 
for a hearing may be dismissed without further notice if you did not 
appear at the time and place of hearing, and good cause has not been 
found by the administrative law judge for your failure to appear; or
    (ii) Neither you nor the person you designate to act as your 
representative appears at the time and place set for the hearing and 
within 10 days after the administrative law judge mails you a notice 
asking why you did not appear, you do not give a good reason for the 
failure to appear.
    (2) In determining good cause or good reason under this paragraph, 
we will consider any physical, mental, educational, or linguistic 
limitations (including any lack of facility with the English language) 
which you may have.
    (c) The administrative law judge decides that there is cause to 
dismiss a hearing request entirely or to refuse to consider any one or 
more of the issues because--
    (1) The doctrine of res judicata applies in that we have made a 
previous determination or decision under this subpart about your rights 
on the same facts and on the same issue or issues, and this previous 
determination or decision has become final by either administrative or 
judicial action;
    (2) The person requesting a hearing has no right to it under 
Sec. 416.1430;
    (3) You did not request a hearing within the stated time period and 
we have not extended the time for requesting a hearing under 
Sec. 416.1433(c); or
    (4) You die, there are no other parties, and we have no information 
to show that you may have a survivor who may be paid benefits due to you 
under Sec. 416.542(b) and who wishes to pursue the request for hearing, 
or that you authorized interim assistance reimbursement to a State 
pursuant to section 1631(g) of the Act. The administrative law judge, 
however, will vacate a dismissal of the hearing request if, within 60 
days after the date of the dismissal:
    (i) A person claiming to be your survivor, who may be paid benefits 
due to you under Sec. 416.542(b), submits a written request for a 
hearing, and shows that a decision on the issues that were to be 
considered at the hearing may adversely affect him or her; or
    (ii) We receive information showing that you authorized interim 
assistance reimbursement to a State pursuant to section 1631(g) of the 
Act.

[45 FR 52096, Aug. 5, 1980, as amended at 50 FR 21439, May 24, 1985; 51 
FR 308, Jan. 3, 1986; 58 FR 52913, Oct. 13, 1993; 59 FR 1637, Jan. 12, 
1994]



Sec. 416.1458  Notice of dismissal of a request for a hearing before an administrative law judge.

    We shall mail a written notice of the dismissal of the hearing 
request to all parties at their last known address. The notice will 
state that there is a right to request that the Appeals Council vacate 
the dismissal action.

[45 FR 52096, Aug. 5, 1980, as amended at 51 FR 308, Jan. 3, 1986]



Sec. 416.1459  Effect of dismissal of a request for a hearing before an administrative law judge.

    The dismissal of a request for a hearing is binding, unless it is 
vacated by an administrative law judge or the Appeals Council.

[45 FR 52096, Aug. 5, 1980, as amended at 51 FR 308, Jan. 3, 1986]

[[Page 904]]



Sec. 416.1460  Vacating a dismissal of a request for a hearing before an administrative law judge.

    An administrative law judge or the Appeals Council may vacate any 
dismissal of a hearing request if, within 60 days after the date you 
receive the dismissal notice, you request that the dismissal be vacated 
and show good cause why the hearing request should not have been 
dismissed. The Appeals Council itself may decide within 60 days after 
the notice of dismissal is mailed to vacate the dismissal. The Appeals 
Council shall advise you in writing of any action it takes.

[45 FR 52096, Aug. 5, 1980, as amended at 51 FR 308, Jan. 3, 1986]



Sec. 416.1461  Prehearing and posthearing conferences.

    The administrative law judge may decide on his or her own, or at the 
request of any party to the hearing, to hold a prehearing or posthearing 
conference to facilitate the hearing or the hearing decision. The 
administrative law judge shall tell the parties of the time, place and 
purpose of the conference at least seven days before the conference 
date, unless the parties have indicated in writing that they do not wish 
to receive a written notice of the conference. At the conference, the 
administrative law judge may consider matters in addition to those 
stated in the notice, if the parties consent in writing. A record of the 
conference will be made. The administrative law judge shall issue an 
order stating all agreements and actions resulting from the conference. 
If the parties do not object, the agreements and actions become part of 
the hearing record and are binding on all parties.



Sec. 416.1465  [Reserved]

                         Appeals Council Review



Sec. 416.1467  Appeals Council review--general.

    If you or any other party is dissatisfied with the hearing decision 
or with the dismissal of a hearing request, you may request that the 
Appeals Council review that action. The Appeals Council may deny or 
dismiss the request for review, or it may grant the request and either 
issue a decision or remand the case to an administrative law judge. The 
Appeals Council shall notify the parties at their last known address of 
the action it takes.



Sec. 416.1468  How to request Appeals Council review.

    (a) Time and place to request Appeals Council review. You may 
request Appeals Council review by filing a written request. Any 
documents or other evidence you wish to have considered by the Appeals 
Council should be submitted with your request for review. You may file 
your request at one of our offices within 60 days after the date you 
receive notice of the hearing decision or dismissal (or within the 
extended time period if we extend the time as provided in paragraph (b) 
of this section).
    (b) Extension of time to request review. You or any party to a 
hearing decision may ask that the time for filing a request for the 
review be extended. The request for an extension of time must be in 
writing. It must be filed with the Appeals Council, and it must give the 
reasons why the request for review was not filed within the stated time 
period. If you show that you had good cause for missing the deadline, 
the time period will be extended. To determine whether good cause 
exists, we use the standards explained in Sec. 416.1411.



Sec. 416.1469  Appeals Council initiates review.

    Anytime within 60 days after the date of a hearing decision or 
dismissal, the Appeals Council itself may decide to review the action 
that was taken. If the Appeals Council does review the hearing decision 
or dismissal notice of the action will be mailed to all parties at their 
last known address.



Sec. 416.1470  Cases the Appeals Council will review.

    (a) The Appeals Council will review a case if--
    (1) There appears to be an abuse of discretion by the administrative 
law judge;
    (2) There is an error of law;
    (3) The action, findings or conclusions of the administrative law 
judge

[[Page 905]]

are not supported by substantial evidence; or
    (4) There is a broad policy or procedural issue that may affect the 
general public interest.
    (b) In reviewing decisions based on an application for benefits, if 
new and material evidence is submitted, the Appeals Council shall 
consider the additional evidence only where it relates to the period on 
or before the date of the administrative law judge hearing decision. In 
reviewing decisions other than those based on an application for 
benefits, the Appeals Council shall evaluate the entire record including 
any new and material evidence submitted. It will then review the case if 
it finds that the administrative law judge's action, findings, or 
conclusion is contrary to the weight of the evidence currently of 
record.

[45 FR 52096, Aug. 5, 1980, as amended at 52 FR 4004, Feb. 9, 1987]



Sec. 416.1471  Dismissal by Appeals Council.

    The Appeals Council will dismiss your request for review if you did 
not file your request within the stated period of time and the time for 
filing has not been extended. The Appeals Council may also dismiss any 
proceedings before it if--
    (a) You and any other party to the proceedings files a written 
request for dismissal; or
    (b) You die, there are no other parties, and we have no information 
to show that you may have a survivor who may be paid benefits due to you 
under Sec. 416.542(b) and who wishes to pursue the request for review, 
or that you authorized interim assistance reimbursement to a State 
pursuant to section 1631(g) of the Act. The Appeals Council, however, 
will vacate a dismissal of the request for review if, within 60 days 
after the date of the dismissal:
    (1) A person claiming to be your survivor, who may be paid benefits 
due to you under Sec. 416.542(b), submits a written request for review, 
and shows that a decision on the issues that were to be considered on 
review may adversely affect him or her; or
    (2) We receive information showing that you authorized interim 
assistance reimbursement to a State pursuant to section 1631(g) of the 
Act.

[45 FR 52096, Aug. 5, 1980, as amended at 58 FR 52914, Oct. 13, 1993]



Sec. 416.1472  Effect of dismissal of request for Appeals Council review.

    The dismissal of a request for Appeals Council review is binding and 
not subject to further review.



Sec. 416.1473  Notice of Appeals Council review.

    When the Appeals Council decides to review a case, it shall mail a 
notice to all parties at their last known address stating the reasons 
for the review and the issues to be considered.



Sec. 416.1474  Obtaining evidence from Appeals Council.

    You may request and receive copies or a statement of the documents 
or other written evidence upon which the hearing decision or dismissal 
was based and a copy or summary of the transcript of oral evidence. 
However, you will be asked to pay the costs of providing these copies 
unless there is a good reason why you should not pay.



Sec. 416.1475  Filing briefs with the Appeals Council.

    Upon request, the Appeals Council shall give you and all other 
parties a reasonable opportunity to file briefs or other written 
statements about the facts and law relevant to the case. A copy of each 
brief or statement should be filed for each party.



Sec. 416.1476  Procedures before Appeals Council on review.

    (a) Limitation of issues. The Appeals Council may limit the issues 
it considers if it notifies you and the other parties of the issues it 
will review.
    (b) Evidence. (1) In reviewing decisions based on an application for 
benefits, the Appeals Council will consider the evidence in the 
administrative law judge hearing record and any new and material 
evidence only if it relates to the period on or before the date of the 
administrative law judge hearing decision. If you submit evidence which 
does not relate to the period on or before the date of the 
administrative law judge hearing decision, the Appeals

[[Page 906]]

Council will return the additional evidence to you with an explanation 
as to why it did not accept the additional evidence and will advise you 
of your right to file a new application. The notice returning the 
evidence to you will also advise you that if you file an application 
within 60 days after the date of the Appeals Council's notice, your 
request for review will constitute a written statement indicating an 
intent to claim benefits in accordance with Sec. 416.340. If a new 
application is filed within 60 days of this notice, the date of the 
request for review will be used as the filing date for your application.
    (2) In reviewing decisions other than those based on an application 
for benefits, the Appeals Council will consider the evidence in the 
administrative law judge hearing record and any additional evidence it 
believes is material to an issue being considered.
    (3) If additional evidence is needed, the Appeals Council may remand 
the case to an administrative law judge to receive evidence and issue a 
new decision. However, if the Appeals Council decides that it can obtain 
the evidence more quickly, it may do so, unless it will adversely affect 
your rights.
    (c) Oral argument. You may request to appear before the Appeals 
Council to present oral argument. The Appeals Council will grant your 
request if it decides that your case raises an important question of law 
or policy or that oral argument would help to reach a proper decision. 
If your request to appear is granted, the Appeals Council will tell you 
the time and place of the oral argument at least 10 days before the 
scheduled date.

[45 FR 52096, Aug. 5, 1980, as amended at 52 FR 4004, Feb. 9, 1987]



Sec. 416.1477  Case remanded by Appeals Council.

    (a) When the Appeals Council may remand a case. The Appeals Council 
may remand a case to an administrative law judge so that he or she may 
hold a hearing and issue a decision or a recommended decision. The 
Appeals Council may also remand a case in which additional evidence is 
needed or additional action by the administrative law judge is required.
    (b) Action by administrative law judge on remand. The administrative 
law judge shall take any action that is ordered by the Appeals Council 
and may take any additional action that is not inconsistent with the 
Appeals Council's remand order.
    (c) Notice when case is returned with a recommended decision. When 
the administrative law judge sends a case to the Appeals Council with a 
recommended decision, a notice is mailed to the parties at their last 
known address. The notice tells them that the case has been sent to the 
Appeals Council, explains the rules for filing briefs or other written 
statements with the Appeals Council, and includes a copy of the 
recommended decision.
    (d) Filing briefs with and obtaining evidence from the Appeals 
Council. (1) You may file briefs or other written statements about the 
facts and law relevant to your case with the Appeals Council within 20 
days of the date that the recommended decision is mailed to you. Any 
party may ask the Appeals Council for additional time to file briefs or 
statements. The Appeals Council will extend this period, as appropriate, 
if you show that you had good cause for missing the deadline.
    (2) All other rules for filing briefs with and obtaining evidence 
from the Appeals Council follow the procedures explained in this 
subpart.
    (e) Procedures before the Appeals Council. (1) The Appeals Council 
after receiving a recommended decision will conduct its proceedings and 
issue its decision according to the procedures explained in this 
subpart.
    (2) If the Appeals Council believes that more evidence is required, 
it may again remand the case to an administrative law judge for further 
inquiry into the issues, rehearing, receipt of evidence, and another 
decision or recommended decision. However, if the Appeals Council 
decides that it can get the additional evidence more quickly, it will 
take appropriate action.



Sec. 416.1479  Decision of Appeals Council.

    After it has reviewed all the evidence in the administrative law 
judge hearing record and any additional evidence received, subject to 
the limitations on

[[Page 907]]

Appeals Council consideration of additional evidence in 
Secs. 416.1470(b) and 416.1476(b), the Appeals Council will make a 
decision or remand the case to an administrative law judge. The Appeals 
Council may affirm, modify or reverse the administrative law judge 
hearing decision or it may adopt, modify or reject a recommended 
decision. A copy of the Appeals Council's decision will be mailed to the 
parties at their last known address.

[52 FR 4005, Feb. 9, 1987]



Sec. 416.1481  Effect of Appeals Council's decision or denial of review.

    The Appeals Council may deny a party's request for review or it may 
decide to review a case and make a decision. The Appeals Council's 
decision, or the decision of the administrative law judge if the request 
for review is denied, is binding unless you or another party file an 
action in Federal district court, or the decision is revised. You may 
file an action in a Federal district court within 60 days after the date 
you receive notice of the Appeals Council's action.



Sec. 416.1482  Extension of time to file action in Federal district court.

    Any party to the Appeals Council's decision or denial of review, or 
to an expedited appeals process agreement, may request that the time for 
filing an action in a Federal district court be extended. The request 
must be in writing and it must give the reasons why the action was not 
filed within the stated time period. The request must be filed with the 
Appeals Council, or if it concerns an expedited appeals process 
agreement, with one of our offices. If you show that you had good cause 
for missing the deadline, the time period will be extended. To determine 
whether good cause exists, we use the standards explained in 
Sec. 416.1411.

                           Court Remand Cases



Sec. 416.1483  Case remanded by a Federal court.

    When a Federal court remands a case to the Secretary for further 
consideration, the Appeals Council, acting on behalf of the Secretary, 
may make a decision, or it may remand the case to an administrative law 
judge with instructions to take action and issue a decision or return 
the case to the Appeals Council with a recommended decision. If the case 
is remanded by the Appeals Council, the procedures explained in 
Sec. 416.1477 will be followed. Any issues relating to your claim may be 
considered by the administrative law judge whether or not they were 
raised in the administrative proceedings leading to the final decision 
in your case.

[54 FR 37793, Sept. 13, 1989]



Sec. 416.1484  Appeals Council review of administrative law judge decision in a case remanded by a Federal court.

    (a) General. In accordance with Sec. 416.1483, when a case is 
remanded by a Federal court for further consideration, the decision of 
the administrative law judge will become the final decision of the 
Secretary after remand on your case unless the Appeals Council assumes 
jurisdiction of the case. The Appeals Council may assume jurisdiction 
based on written exceptions to the decision of the administrative law 
judge which you file with the Appeals Council or based on its authority 
pursuant to paragraph (c) of this section. If the Appeals Council 
assumes jurisdiction of your case, any issues relating to your claim may 
be considered by the Appeals Council whether or not they were raised in 
the administrative proceedings leading to the final decision in your 
case or subsequently considered by the administrative law judge in the 
administrative proceedings following the court's remand order. The 
Appeals Council will either make a new, independent decision based on 
the entire record that will be the final decision of the Secretary after 
remand or remand the case to an administrative law judge for further 
proceedings.
    (b) You file exceptions disagreeing with the decision of the 
administrative law judge. (1) If you disagree with the decision of the 
administrative law judge, in whole or in part, you may file exceptions 
to the decision with the Appeals Council. Exceptions may be filed by 
submitting a written statement to the Appeals Council setting forth your 
reasons for disagreeing with the decision

[[Page 908]]

of the administrative law judge. The exceptions must be filed within 30 
days of the date you receive the decision of the administrative law 
judge or an extension of time in which to submit exceptions must be 
requested in writing within the 30-day period. A timely request for a 
30-day extension will be granted by the Appeals Council. A request for 
an extension of more than 30 days should include a statement of reasons 
as to why you need the additional time.
    (2) If written exceptions are timely filed, the Appeals Council will 
consider your reasons for disagreeing with the decision of the 
administrative law judge and all the issues presented by your case. If 
the Appeals Council concludes that there is no reason to change the 
decision of the administrative law judge, it will issue a notice to you 
addressing your exceptions and explaining why no change in the decision 
of the administrative law judge is warranted. In this instance, the 
decision of the administrative law judge is the final decision of the 
Secretary after remand.
    (3) When you file written exceptions to the decision of the 
administrative law judge, the Appeals Council may assume jurisdiction at 
any time, even after the 60-day time period which applies when you do 
not file exceptions. If the Appeals Council assumes jurisdiction, it 
will make a new, independent decision based on its consideration of the 
entire record affirming, modifying, or reversing the decision of the 
administrative law judge or remand the case to an administrative law 
judge for further proceedings, including a new decision. The new 
decision of the Appeals Council is the final decision of the Secretary 
after remand.
    (c) Appeals Council assumes jurisdiction without exceptions being 
filed. Any time within 60 days after the date of the decision of the 
administrative law judge, the Appeals Council may decide to assume 
jurisdiction of your case even though no written exceptions have been 
filed. Notice of this action will be mailed to all parties at their last 
known address. You will be provided with the opportunity to file briefs 
or other written statements with the Appeals Council about the facts and 
law relevant to your case. After the briefs or other written statements 
have been received or the time allowed (usually 30 days) for submitting 
them has expired, the Appeals Council will either issue a final decision 
of the Secretary affirming, modifying, or reversing the decision of the 
administrative law judge, or remand the case to an administrative law 
judge for further proceedings, including a new decision.
    (d) Exceptions are not filed and the Appeals Council does not 
otherwise assume jurisdiction. If no exceptions are filed and the 
Appeals Council does not assume jurisdiction of your case, the decision 
of the administrative law judge becomes the final decision of the 
Secretary after remand.

[54 FR 37793, Sept. 13, 1989]



Sec. 416.1485  Application of circuit court law.

    The procedures which follow apply to administrative determinations 
or decisions on claims involving the application of circuit court law.
    (a) We will apply a holding in a United States Court of Appeals 
decision which we determine conflicts with our interpretation of a 
provision of the Social Security Act or regulations unless the 
Government seeks further review of that decision or we relitigate the 
issue presented in the decision in accordance with paragraphs (c) and 
(d) of this section. We will apply the holding to claims at all levels 
of administrative adjudication within the applicable circuit unless the 
holding, by its nature, applies only at certain levels of adjudication.
    (b) When we determine that a United States Court of Appeals holding 
conflicts with our interpretation of a provision of the Social Security 
Act or regulations and the Government does not seek further review or is 
unsuccessful on further review, we will issue a Social Security 
Acquiescence Ruling that describes the administrative case and the court 
decision, identifies the issue(s) involved, and explains how we will 
apply the holding, including, as necessary, how the holding relates to 
other decisions within the applicable circuit. These rulings will 
generally be effective on the date of their publication in the Federal 
Register and will

[[Page 909]]

apply to all determinations, redeterminations or decisions made on or 
after that date. If we make a determination or decision between the date 
of a circuit court decision, and the date we publish an Acquiescence 
Ruling, the claimant may request application of the published ruling to 
the prior determination or decision. The claimant must first demonstrate 
that application of the ruling could change the prior determination or 
decision. A claimant may so demonstrate by submitting a statement which 
cites the ruling and indicates what finding or statement in the 
rationale of the prior determination or decision conflicts with the 
ruling. If the claimant can so demonstrate, we will readjudicate the 
claim at the level at which it was last adjudicated in accordance with 
the ruling. Any readjudication will be limited to consideration of the 
issue(s) covered by the ruling and any new determination or decision on 
readjudication will be subject to administrative and judicial review in 
accordance with this subpart. Our denial of a request for readjudication 
will not be subject to further administrative or judicial review. If a 
claimant files a request for readjudication within the sixty day appeal 
period and we deny that request, we shall extend the time to file an 
appeal on the merits of the claim to sixty days after the date that we 
deny the request for readjudication.
    (c) After we have published a Social Security Acquiescence Ruling to 
reflect a holding of a United States Court of Appeals on an issue, we 
may decide under certain conditions to relitigate that issue within the 
same circuit. We will relitigate only when the conditions specified in 
paragraphs (c) (2) and (3) of this section are met, and, in general, one 
of the events specified in paragraph (c)(1) of this section occurs.
    (1) Activating events: (i) An action by both Houses of Congress 
indicates that a court case on which an Acquiescence Ruling was based 
was decided inconsistently with congressional intent, such as may be 
expressed in a joint resolution, an appropriations restriction, or 
enactment of legislation which affects a closely analogous body of law;
    (ii) A statement in a majority opinion of the same circuit indicates 
that the court might no longer follow its previous decision if a 
particular issue were presented again;
    (iii) Subsequent circuit court precedent in other circuits supports 
our interpretation of the Social Security Act or regulations on the 
issue(s) in question; or
    (iv) A subsequent Supreme Court decision presents a reasonable legal 
basis for questioning a circuit court holding upon which we base a 
Social Security Acquiescence Ruling.
    (2) The General Counsel of the Department of Health and Human 
Services, after consulting with the Department of Justice, concurs that 
relitigation of an issue and application of our interpretation of the 
Social Security Act or regulations at the administrative level within 
the circuit would be appropriate.
    (3) We publish a notice in the Federal Register that we intend to 
relitigate an Acquiescence Ruling issue, and that we will apply our 
interpretation of the Social Security Act or regulations at the 
administrative level within the circuit. The notice will explain why we 
made this decision.
    (d) When we decide to relitigate an issue, we will provide a notice 
explaining our action to all affected claimants. In adjudicating claims 
subject to relitigation, decisionmakers throughout the SSA 
administrative review process will apply our interpretation of the 
Social Security Act and regulations, but will also state in written 
determinations or decisions how the claims would have been decided under 
the circuit standard. Claims not subject to relitigation will continue 
to be decided under the Acquiescence Ruling in accordance with the 
circuit standard. So that affected claimants can be readily identified 
and any subsequent decision of the circuit court or the Supreme Court 
can be implemented quickly and efficiently, we will maintain a listing 
of all claimants who receive this notice and will provide them with the 
relief ordered by the court.
    (e) We will rescind as obsolete a Social Security Acquiescence 
Ruling and apply our interpretation of the Social Security Act or 
regulations by publishing a notice in the Federal Register

[[Page 910]]

when any of the following events occurs:
    (1) The Supreme Court overrules or limits a circuit court holding on 
an issue that was the basis of an Acquiescence Ruling;
    (2) A circuit court overrules or limits itself on an issue that was 
the basis of an Acquiescence Ruling;
    (3) A Federal law is enacted that removes the basis for the holding 
in a decision of a circuit court that was the subject of an Acquiescence 
Ruling; or
    (4) We subsequently clarify, modify or revoke the regulation or 
ruling that was the subject of circuit court holding that we determined 
conflicts with our interpretation of the Social Security Act or 
regulations, or we subsequently publish a new regulation(s) addressing 
an issue(s) not previously included in our regulations when that 
issue(s) was the subject of a circuit court holding that conflicted with 
our interpretation of the Social Security Act or regulations and that 
holding was not compelled by the statute or Constitution.

[55 FR 1020, Jan. 11, 1990]

           Reopening and Revising Determinations and Decisions



Sec. 416.1487  Reopening and revising determinations and decisions.

    (a) General. Generally, if you are dissatisfied with a determination 
or decision made in the administrative review process, but do not 
request further review within the stated time period, you lose your 
right to further review and that determination or decision becomes 
final. However, a determination or a decision made in your case which is 
otherwise final and binding may be reopened and revised by us.
    (b) Procedure for reopening and revision. We may reopen a final 
determination or decision on our own initiative, or you may ask that a 
final determination or a decision to which you were a party be reopened. 
In either instance, if we reopen the determination or decision, we may 
revise that determination or decision. The conditions under which we may 
reopen a previous determination or decision, either on our own 
initiative or at your request, are explained in Sec. 416.1488.

[59 FR 8535, Feb. 23, 1994]



Sec. 416.1488  Conditions for reopening.

    A determination, revised determination, decision, or revised 
decision may be reopened--
    (a) Within 12 months of the date of the notice of the initial 
determination, for any reason;
    (b) Within two years of the date of the notice of the initial 
determination if we find good cause, as defined in Sec. 416.1489, to 
reopen the case; or
    (c) At any time if it was obtained by fraud or similar fault. In 
determining whether a determination or decision was obtained by fraud or 
similar fault, we will take into account any physical, mental, 
educational, or linguistic limitations (including any lack of facility 
with the English language) which you may have had at the time.

[45 FR 52096, Aug. 5, 1980, as amended at 59 FR 1637, Jan. 12, 1994]



Sec. 416.1489  Good cause for reopening.

    (a) We will find that there is good cause to reopen a determination 
or decision if--
    (1) New and material evidence is furnished;
    (2) A clerical error was made; or
    (3) The evidence that was considered in making the determination or 
decision clearly shows on its face that an error was made.
    (b) We will not find good cause to reopen your case if the only 
reason for reopening is a change of legal interpretation or 
administrative ruling upon which the determination or decision was made.



Sec. 416.1491  Late completion of timely investigation.

    We may revise a determination or decision after the applicable time 
period in Sec. 416.1488(a) or Sec. 416.1488(b) expires if we begin an 
investigation into whether to revise the determination or decision 
before the applicable time period expires. We may begin the 
investigation either based on a request by you or by an action on our 
part. The investigation is a process of gathering facts after a 
determination or decision has been reopened to determine if a revision 
of the determination or decision is applicable.

[[Page 911]]

    (a) If we have diligently pursued the investigation to its 
conclusion, we may revise the determination or decision. The revision 
may be favorable or unfavorable to you. ``Diligently pursued'' means 
that in light of the facts and circumstances of a particular case, the 
necessary action was undertaken and carried out as promptly as the 
circumstances permitted. Diligent pursuit will be presumed to have been 
met if we conclude the investigation and if necessary, revise the 
determination or decision within 6 months from the date we began the 
investigation.
    (b) If we have not diligently pursued the investigation to its 
conclusion, we will revise the determination or decision if a revision 
is applicable and if it will be favorable to you. We will not revise the 
determination or decision if it will be unfavorable to you.

[49 FR 46370, Nov. 26, 1984; 49 FR 48036, Dec. 10, 1984]



Sec. 416.1492  Notice of revised determination or decision.

    (a) When a determination or decision is revised, notice of the 
revision will be mailed to the parties at their last known address. The 
notice will state the basis for the revised determination or decision 
and the effect of the revision. The notice will also inform the parties 
of the right to further review.
    (b) If a determination is revised and the revised determination 
requires that your benefits be suspended, reduced, or terminated, the 
notice will inform you of your right to continued payment (see 
Sec. 416.1336 and the exceptions set out in Sec. 416.1337) and of your 
right of reconsideration.
    (c) If a determination is revised and the revised determination does 
not require that your benefits be suspended, reduced, or terminated, the 
notice will inform you of your right to a hearing before an 
administrative law judge.
    (d) If a reconsidered determination that you are blind or disabled, 
based on medical factors, is reopened for the purpose of being revised, 
you will be notified, in writing, of the proposed revision and of your 
right to request that a disability hearing be held before a revised 
reconsidered determination is issued. If a revised reconsidered 
determination is issued, you may request a hearing before an 
administrative law judge.
    (e) If an administrative law judge or the Appeals Council proposes 
to revise a decision, and the revision would be based on evidence not 
included in the record on which the prior decision was based, you and 
any other parties to the decision will be notified, in writing, of the 
proposed action and of your right to request that a hearing be held 
before any further action is taken. If a revised decision is issued by 
an administrative law judge, you and any other party may request that it 
be reviewed by the Appeals Council, or the Appeals Council may review 
the decision on its own initiative.
    (f) If an administrative law judge or the Appeals Council proposes 
to revise a decision, and the revision would be based only on evidence 
included in the record on which the prior decision was based, you and 
any other parties to the decision will be notified, in writing, of the 
proposed action. If a revised decision is issued by an administrative 
law judge, you and any other party may request that it be reviewed by 
the Appeals Council, or the Appeals Council may review the decision on 
its own initiative.
    (g) An administrative law judge may, in connection with a valid 
request for a hearing, propose to reopen an issue other than the issue 
on which the request for a hearing was based. The administrative law 
judge will follow the time limits for reopenings set out in 
Sec. 416.1488. The administrative law judge shall mail to the parties at 
their last known address a notice of the reopening.

[45 FR 52096, Aug. 5, 1980, as amended at 51 FR 308, Jan. 3, 1986]



Sec. 416.1493  Effect of revised determination or decision.

    A revised determination or decision is binding unless--
    (a) You or a party to the revised determination file a written 
request for a reconsideration or a hearing;
    (b) You or another party to the revised decision file, as 
appropriate, a request for review by the Appeals Council or a hearing;
    (c) The Appeals Council reviews the revised decision; or

[[Page 912]]

    (d) The revised determination or decision is further revised.



Sec. 416.1494  Time and place to request further review or a hearing on revised determination or decision.

    You or another party to the revised determination or decision may 
request, as appropriate, further review or a hearing on the revision by 
filing a request in writing at one of our offices within 60 days after 
the date you receive notice of the revision. Further review or a hearing 
will be held on the revision according to the rules of this subpart.

                   Payment of Certain Travel Expenses



Sec. 416.1495  Payment of certain travel expenses--general.

    When you file a claim for supplemental security income (SSI) 
benefits, you may incur certain travel expenses in pursuing your claim. 
Sections 416.1496 through 416.1499 explain who may be reimbursed for 
travel expenses, the types of travel expenses that are reimbursable, and 
when and how to claim reimbursement. Generally, the agency that requests 
you to travel will be the agency that reimburses you. No later than when 
it notifies you of the examination or hearing described in 
Sec. 416.1496(a), that agency will give you information about the right 
to travel reimbursement, the right to advance payment and how to request 
it, the rules on means of travel and unusual travel costs, and the need 
to submit receipts.

[51 FR 8810, Mar. 14, 1986]



Sec. 416.1496  Who may be reimbursed.

    (a) The following individuals may be reimbursed for certain travel 
expenses--
    (1) You, when you attend medical examinations upon request in 
connection with disability determinations; these are medical 
examinations requested by the State agency or by us when additional 
medical evidence is necessary to make a disability determination (also 
referred to as consultative examinations, see Sec. 416.917);
    (2) You, your representative (see Sec. 416.1505 (a) and (b)), and 
all unsubpoenaed witnesses we or the State agency determines to be 
reasonably necessary who attend disability hearings; and
    (3) You, your representative, and all unsubpoenaed witnesses we 
determine to be reasonably necessary who attend hearings on any claim 
for SSI benefits before an administrative law judge.
    (b) Sections 416.1495 through 416.1499 do not apply to subpoenaed 
witnesses. They are reimbursed under Secs. 416.1450(d) and 
416.1416(b)(1).

[51 FR 8810, Mar. 14, 1986]



Sec. 416.1498  What travel expenses are reimbursable.

    Reimbursable travel expenses include the ordinary expenses of public 
or private transportation as well as unusual costs due to special 
circumstances.
    (a) Reimbursement for ordinary travel expenses is limited--
    (1) To the cost of travel by the most economical and expeditious 
means of transportation available and appropriate to the individual's 
condition of health as determined by the State agency or by us, 
considering the available means in the following order--
    (i) Common carrier (air, rail, or bus);
    (ii) Privately owned vehicles;
    (iii) Commercially rented vehicles and other special conveyances;
    (2) If air travel is necessary, to the coach fare for air travel 
between the specified travel points involved unless first-class air 
travel is authorized in advance by the State agency or by the Secretary 
in instances when--
    (i) Space is not available in less-than-first-class accommodations 
on any scheduled flights in time to accomplish the purpose of the 
travel;
    (ii) First-class accommodations are necessary because you, your 
representative, or reasonably necessary witness is so handicapped or 
otherwise impaired that other accommodations are not practical and the 
impairment is substantiated by competent medical authority;
    (iii) Less-than-first-class accommodations on foreign carriers do 
not provide adequate sanitation or health standards; or
    (iv) The use of first-class accommodations would result in an 
overall savings to the government based on economic considerations, such 
as the

[[Page 913]]

avoidance of additional subsistence costs that would be incurred while 
awaiting availability of less-than-first-class accommodations.
    (b) Unusual travel costs may be reimbursed but must be authorized in 
advance and in writing by us or the appropriate State official, as 
applicable, unless they are unexpected or unavoidable; we or the State 
agency must determine their reasonableness and necessity and must 
approve them before payment can be made. Unusual expenses that may be 
covered in connection with travel include, but are not limited to--
    (1) Ambulance services;
    (2) Attendant services;
    (3) Meals;
    (4) Lodging; and
    (5) Taxicabs.
    (c) If we reimburse you for travel, we apply the rules in 
Secs. 416.1496 through 416.1499 and the same rates and conditions of 
payment that govern travel expenses for Federal employees as authorized 
under 41 CFR chapter 301. If a State agency reimburses you, the 
reimbursement rates shall be determined by the rules in Secs. 416.1496 
through 416.1499 and that agency's rules and regulations and may differ 
from one agency to another and also may differ from the Federal 
reimbursement rates.
    (1) When public transportation is used, reimbursement will be made 
for the actual costs incurred, subject to the restrictions in paragraph 
(a)(2) of this section on reimbursement for first-class air travel.
    (2) When travel is by a privately owned vehicle, reimbursement will 
be made at the current Federal or State mileage rate specified for that 
geographic location plus the actual costs of tolls and parking, if 
travel by a privately owned vehicle is determined appropriate under 
paragraph (a)(1) of this section. Otherwise, the amount of reimbursement 
for travel by privately owned vehicle cannot exceed the total cost of 
the most economical public transportation for travel between the same 
two points. ``Total cost'' includes the cost for all the authorized 
travelers who travel in the same privately owned vehicle. Advance 
approval of travel by privately owned vehicle is not required (but could 
give you assurance of its approval).
    (3) Sometimes your health condition dictates a mode of 
transportation different from most economical and expeditious. In order 
for your health to require a mode of transportation other than common 
carrier or passenger car, you must be so handicapped or otherwise 
impaired as to require special transportation arrangements and the 
condition must be substantiated by competent medical authority.
    (d) For travel to a hearing--
    (1) Reimbursement is limited to travel within the U.S. For this 
purpose, the U.S. includes the U.S. as defined in Sec. 416.120(c)(10).
    (2) When the travel is performed after September 30, 1981, we or the 
State agency will reimburse you, your representative, or an unsubpoenaed 
witness only if the distance from the person's residence or office 
(whichever he or she travels from) to the hearing site exceeds 75 miles.
    (3) For travel expenses incurred on or after April 1, 1991, the 
amount of reimbursement under this section for travel by your 
representative to attend a disability hearing or a hearing before an 
administrative law judge shall not exceed the maximum amount allowable 
under this section for travel to the hearing site from any point within 
the geographic area of the office having jurisdiction over the hearing.
    (i) The geographic area of the office having jurisdiction over the 
hearing means, as appropriate--
    (A) The designated geographic service area of the State agency 
adjudicatory unit having responsibility for providing the disability 
hearing;
    (B) If a Federal disability hearing officer holds the disability 
hearing, the geographic area of the State (as defined in 
Sec. 416.120(c)(9)) in which the claimant resides or, if the claimant is 
not a resident of a State, in which the hearing officer holds the 
disability hearing; or
    (C) The designated geographic service area of the Office of Hearings 
and Appeals hearing office having responsibility for providing the 
hearing before an administrative law judge.
    (ii) We or the State agency determine the maximum amount allowable 
for

[[Page 914]]

travel by a representative based on the distance to the hearing site 
from the farthest point within the appropriate geographic area. In 
determining the maximum amount allowable for travel between these two 
points, we or the State agency apply the rules in paragraphs (a) through 
(c) of this section and the limitations in paragraph (d) (1) and (4) of 
this section. If the distance between these two points does not exceed 
75 miles, we or the State agency will not reimburse any of your 
representative's travel expenses.
    (4) If a change in the location of the hearing is made at your 
request from the location we or the State agency selected to one farther 
from your residence or office, neither your additional travel expenses 
nor the additional travel expenses of your representative and witnesses 
will be reimbursed.

[51 FR 8810, Mar. 14, 1986, as amended at 59 FR 8532, Feb. 23, 1994]



Sec. 416.1499  When and how to claim reimbursement.

    (a)(1) Generally, you will be reimbursed for your expenses after 
your trip. However, travel advances may be authorized if you request 
prepayment and show that the requested advance is reasonable and 
necessary.
    (2) You must submit to us or the State agency, as appropriate, an 
itemized list of what you spent and supporting receipts to be 
reimbursed.
    (3) Arrangements for special means of transportation and related 
unusual costs may be made only if we or the State agency authorizes the 
costs in writing in advance of travel, unless the costs are unexpected 
or unavoidable. If they are unexpected or unavoidable we or the State 
agency must determine their reasonableness and necessity and must 
approve them before payment may be made.
    (4) If you receive prepayment, you must, within 20 days after your 
trip, provide to us or the State agency, as appropriate, an itemized 
list of your actual travel costs and submit supporting receipts. We or 
the State agency will require you to pay back any balance of the 
advanced amount that exceeds any approved travel expenses within 20 days 
after you are notified of the amount of that balance. (State agencies 
may have their own time limits in place of the 20-day periods in the 
preceding two sentences.)
    (b) You may claim reimbursable travel expenses incurred by your 
representative for which you have been billed by your representative, 
except that if your representative makes a claim for them to us or the 
State, he or she will be reimbursed directly.

(Approved by the Office of Management and Budget under control number 
0960-0434)


[51 FR 8810, Mar. 14, 1986, as amended by 51 FR 44983, Dec. 16, 1986]



                  Subpart O--Representation of Parties

    Authority:  Secs. 702(a)(5) and 1631(d) of the Social Security Act 
(42 U.S.C. 902(a)(5) and 1383(d)).

    Source:  45 FR 52106, Aug. 5, 1980, unless otherwise noted.



Sec. 416.1500  Introduction.

    You may appoint someone to represent you in any of your dealings 
with us. This subpart explains, among other things--
    (a) Who may be your representative and what his or her 
qualifications must be;
    (b) How you appoint a representative;
    (c) The payment of fees to a representative;
    (d) Our rules that representatives must follow; and
    (e) What happens to a representative who breaks the rules.



Sec. 416.1503  Definitions.

    As used in this subpart:
    Representative means an attorney who meets all of the requirements 
of Sec. 416.1505(a), or a person other than an attorney who meets all of 
the requirements of Sec. 416.1505(b), and whom you appoint to represent 
you in dealings with us.
    We, our, or us refers to the Social Security Administration.
    You or your refers to any person or the eligible spouse of any 
person claiming or receiving supplemental security income benefits.

[[Page 915]]



Sec. 416.1505  Who may be your representative.

    (a) Attorney. You may appoint as your representative in dealings 
with us any attorney in good standing who--
    (1) Has the right to practice law before a court of a State, 
Territory, District, or island possession of the United States, or 
before the Supreme Court or a lower Federal court of the United States;
    (2) Is not disqualified or suspended from acting as a representative 
in dealings with us; and
    (3) Is not prohibited by any law from acting as a representative.
    (b) Person other than attorney. You may appoint any person who is 
not an attorney to be your representative in dealings with us if he or 
she--
    (1) Is generally known to have a good character and reputation;
    (2) Is capable of giving valuable help to you in connection with 
your claim;
    (3) Is not disqualified or suspended from acting as a representative 
in dealing with us; and
    (4) Is not prohibited by any law from acting as a representative.



Sec. 416.1506  Notification of options for obtaining attorney representation.

    If you are not represented by an attorney and we make a 
determination or decision that is subject to the administrative review 
process provided under subpart N of this part and it does not grant all 
of the benefits or other relief you requested or it adversely affects 
any eligibility to benefits that we have established or may establish 
for you, we will include with the notice of that determination or 
decision information about your options for obtaining an attorney to 
represent you in dealing with us. We will also tell you that a legal 
services organization may provide you with legal representation free of 
charge if you satisfy the qualifying requirements applicable to that 
organization.

[58 FR 64886, Dec. 10, 1993]



Sec. 416.1507  Appointing a representative.

    We will recognize a person as your representative if the following 
things are done:
    (a) You sign a written notice stating that you want the person to be 
your representative in dealings with us.
    (b) That person signs the notice, agreeing to be your 
representative, if the person is not an attorney. An attorney does not 
have to sign a notice of appointment.
    (c) The notice is filed at one of our offices if you have initially 
filed a claim or requested reconsideration; with an administrative law 
judge if you have requested a hearing; or with the Appeals Council if 
you have requested a review of the administrative law judge's decision.



Sec. 416.1510  Authority of a representative.

    (a) What a representative may do. Your representative may, on your 
behalf--
    (1) Obtain information about your claim to the same extent that you 
are able to do;
    (2) Submit evidence;
    (3) Make statements about facts and law; and
    (4) Make any request or give any notice about the proceedings before 
us.
    (b) What a representative may not do. A representative may not sign 
an application on behalf of a claimant for rights or benefits under 
title XVI of the Act unless authorized to do so under Sec. 416.315.



Sec. 416.1515  Notice or request to a representative.

    (a) We shall send your representative--
    (1) Notice and a copy of any administrative action, determination, 
or decision; and
    (2) Requests for information or evidence.
    (b) A notice or request sent to your representative will have the 
same force and effect as if it had been sent to you.



Sec. 416.1520  Fee for a representative's services.

    (a) General. A representative may charge and receive a fee for his 
or her services as a representative only as provided in paragraph (b) of 
this section.
    (b) Charging and receiving a fee. (1) The representative must file a 
written request with us before he or she may

[[Page 916]]

charge or receive a fee for his or her services.
    (2) We decide the amount of the fee, if any, a representative may 
charge or receive.
    (3) A representative shall not charge or receive any fee unless we 
have approved it, and he or she shall not charge or receive any fee that 
is more than the amount we approve. This rule applies whether the fee is 
charged to or received from you or from someone else.
    (c) Notice of fee determination. We shall mail to both you and your 
representative at your last known address a written notice of what we 
decide about the fee. We shall state in the notice--
    (1) The amount of the fee that is authorized;
    (2) How we made that decision;
    (3) That we are not responsible for paying the fee; and
    (4) That within 30 days of the date of the notice, either you or 
your representative may request us to review the fee determination.
    (d) Review of fee determination--(1) Request filed on time. We will 
review the decision we made about a fee if either you or your 
representative files a written request for the review at one of our 
offices within 30 days after the date of the notice of the fee 
determination. Either you or your representative, whoever requests the 
review, shall mail a copy of the request to the other person. An 
authorized official of the Social Security Administration who did not 
take part in the fee determination being questioned will review the 
determination. This determination is not subject to further review. The 
official shall mail a written notice of the decision made on review both 
to you and to your representative at your last known address.
    (2) Request not filed on time. (i) If you or your representative 
requests a review of the decision we made about a fee, but does so more 
than 30 days after the date of the notice of the fee determination, 
whoever makes the request shall state in writing why it was not filed 
within the 30-day period. We will review the determination if we decide 
that there was good cause for not filing the request on time.
    (ii) Some examples of good cause follow:
    (A) Either you or your representative was seriously ill and the 
illness prevented you or your representative from contacting us in 
person or in writing.
    (B) There was a death or serious illness in your family or in the 
family of your representative.
    (C) Material records were destroyed by fire or other accidental 
cause.
    (D) We gave you or your representative incorrect or incomplete 
information about the right to request review.
    (E) You or your representative did not timely receive notice of the 
fee determination.
    (F) You or your representative sent the request to another 
government agency in good faith within the 30-day period, and the 
request did not reach us until after the period had ended.
    (3) Payment of fees. We assume no responsibility for the payment of 
a fee based on a representative's services before the Social Security 
Administration under title XVI.



Sec. 416.1525  Request for approval of a fee.

    (a) Filing a request. In order for your representative to obtain 
approval of a fee for services he or she performed in dealings with us, 
he or she shall file a written request with one of our offices. This 
should be done after the proceedings in which he or she was a 
representative are completed. The request must contain--
    (1) The dates the representative's services began and ended;
    (2) A list of the services he or she gave and the amount of time he 
or she spent on each type of service;
    (3) The amount of the fee he or she wants to charge for the 
services;
    (4) The amount of fee the representative wants to request or charge 
for his or her services in the same matter before any State or Federal 
court;
    (5) The amount of and a list of any expenses the representative 
incurred for which he or she has been paid or expects to be paid;
    (6) A description of the special qualifications which enabled the 
representative, if he or she is not an attorney, to give valuable help 
to you in connection with your claim; and

[[Page 917]]

    (7) A statement showing that the representative sent a copy of the 
request for approval of a fee to you.
    (b) Evaluating a request for approval of a fee. (1) When we evaluate 
a representative's request for approval of a fee, we consider the 
purpose of the supplemental security income program, which is to assure 
a minimum level of income for the beneficiaries of the program, together 
with--
    (i) The extent and type of services the representative performed;
    (ii) The complexity of the case;
    (iii) The level of skill and competence required of the 
representative in giving the services;
    (iv) The amount of time the representative spent on the case;
    (v) The results the representative achieved;
    (vi) The level of review to which the claim was taken and the level 
of the review at which the representative became your representative; 
and
    (vii) The amount of fee the representative requests for his or her 
services, including any amount authorized or requested before, but not 
including the amount of any expenses he or she incurred.
    (2) Although we consider the amount of benefits, if any, that are 
payable, we do not base the amount of fee we authorize on the amount of 
the benefit alone, but on a consideration of all the factors listed in 
this section. The benefits payable in any claim are determined by 
specific provisions of law and are unrelated to the efforts of the 
representative. We may authorize a fee even if no benefits are payable.



Sec. 416.1528  Proceedings before a State or Federal court.

    We shall not consider any service the representative gave you in any 
proceeding before a State or Federal court to be services as a 
representative in dealings with us. However, if the representative has 
also given service to you in the same connection in any dealings with 
us, he or she must specify what, if any, portion of the fee he or she 
wants to charge is for services performed in dealings with us. If the 
representative charges any fee for those services, he or she must file 
the request and furnish all of the information required by 
Sec. 416.1525.



Sec. 416.1535  Services in a proceeding under title XVI of the Act.

    Services provided a claimant in any dealing with us under title XVI 
of the Act consist of services performed for that claimant in connection 
with any claim he or she may have before the Secretary of Health and 
Human Services under title XVI of the Act. These services include any in 
connection with any asserted right a claimant may have calling for an 
initial or reconsidered determination by us, and a decision or action by 
an administrative law judge or by the Appeals Council.



Sec. 416.1540  Rules governing representatives.

    No attorney or other person representing a claimant shall--
    (a) With intent to defraud, in any manner willfully and knowingly 
deceive, mislead, or threaten by word, circular, letter, or 
advertisement, either oral or written, any claimant or prospective 
claimant or beneficiary regarding benefits, or other initial or 
continued right under the Act;
    (b) Knowingly charge or collect, or make any agreement to charge or 
collect, directly or indirectly, any fee in any amount in excess of that 
allowed by us or by the court;
    (c) Knowingly make or participate in the making or presentation of 
any false statement, representation, or claim about any material fact 
affecting the rights of any person under title XVI of the Act; or
    (d) Divulge, except as may be authorized by regulations prescribed 
by us, any information we furnish or disclose, about the claim or 
prospective claim of another person.



Sec. 416.1545  What happens to a representative who breaks the rules.

    The Deputy Commissioner for Programs, or his or her designee, may 
begin proceedings to suspend or disqualify a person from acting as a 
representative in dealings with us if it appears that he or she--
    (a) Has violated any of the rules in Sec. 416.1540;

[[Page 918]]

    (b) Has been convicted of a violation under section 1631(d)(2) of 
the Act; or
    (c) Has otherwise refused to comply with our rules and regulations 
on representing claimants in dealings with us.

[45 FR 52106, Aug. 5, 1980, as amended at 56 FR 24132, May 29, 1991]



Sec. 416.1550  Notice of charges against a representative.

    (a) The Deputy Commissioner for Programs, or his or her designee, 
will prepare a notice containing a statement of charges that constitutes 
the basis for the proceeding against the representative.
    (b) We will send this notice to the representative either by 
certified or registered mail, to his or her last known address, or by 
personal delivery.
    (c) We will advise the representative to file an answer, within 30 
days from the date of the notice or from the date the notice was 
delivered personally, stating why he or she should not be suspended or 
disqualified from acting as a representative in dealings with us.
    (d) The Deputy Commissioner for Programs, or his or her designee, 
may extend the 30-day period for good cause.
    (e) The representative must--
    (1) Answer the notice in writing under oath (or affirmation); and
    (2) File the answer with the Social Security Administration, Office 
of Hearings and Appeals, Attention: Special Counsel Staff, within the 
30-day time period.
    (f) If the representative does not file an answer within the 30-day 
time period, he or she does not have the right to present evidence, 
except as may be provided in Sec. 416.1565(g).

[45 FR 52106, Aug. 5, 1980, as amended at 56 FR 24132, May 29, 1991]



Sec. 416.1555  Withdrawing charges against a representative.

    We may withdraw charges against a representative. We will do this if 
the representative files an answer, or we obtain evidence, that 
satisfies us that there is reasonable doubt about whether he or she 
should be suspended or disqualified from acting as a representative in 
dealings with us. If we withdraw the charges, we shall notify the 
representative by mail at his or her last known address.



Sec. 416.1565  Hearing on charges.

    (a) Scheduling the hearing. If the Deputy Commissioner for Programs, 
or his or her designee, does not take action to withdraw the charges 
within 15 days after the date on which the representative filed an 
answer, we will hold a hearing and make a decision on the charges.
    (b) Hearing officer. (1) The Associate Commissioner for Hearings and 
Appeals, or his or her designee, shall assign an administrative law 
judge, designated to act as a hearing officer, to hold a hearing on the 
charges.
    (2) No hearing officer shall hold a hearing in a case in which he or 
she is prejudiced or partial about any party, or has any interest in the 
matter.
    (3) If the representative or any party to the hearing objects to the 
hearing officer who has been named to hold the hearing, we must be 
notified at the earliest opportunity. The hearing officer shall consider 
the objection(s) and either proceed with the hearing or withdraw from 
it.
    (4) If the hearing officer withdraws from the hearing, another one 
will be named.
    (5) If the hearing officer does not withdraw, the representative or 
any other person objecting may, after the hearing, present his or her 
objections to the Appeals Council explaining why he or she believes the 
hearing officer's decision should be revised or a new hearing held by 
another administrative law judge designated to act as a hearing officer.
    (c) Time and place of hearing. The hearing officer shall mail the 
parties a written notice of the hearing at their last known addresses, 
at least 20 days before the date set for the hearing.
    (d) Change of time and place for hearing. (1) The hearing officer 
may change the time and place for the hearing. This may be done either 
on his or her own initiative, or at the request of the representative or 
the other party to the hearing,
    (2) The hearing officer may adjourn or postpone the hearing.

[[Page 919]]

    (3) The hearing officer may reopen the hearing for the receipt of 
additional evidence at any time before mailing notice of the decision.
    (4) The hearing officer shall give the representative and the other 
party to the hearing reasonable notice of any change in the time or 
place for the hearing, or of an adjournment or reopening of the hearing.
    (e) Parties. The representative against whom charges have been made 
is a party to the hearing. The Deputy Commissioner for Programs, or his 
or her designee, shall also be a party to the hearing.
    (f) Subpoenas. (1) The representative or the other party to the 
hearing may request the hearing officer to issue a subpoena for the 
attendance and testimony of witnesses and for the production of books, 
records, correspondence, papers, or other documents that are material to 
any matter being considered at the hearing. The hearing officer may, on 
his or her own, initiative, issue subpoenas for the same purposes when 
the action is reasonably necessary for the full presentation of the 
facts.
    (2) The representative or the other party who wants a subpoena 
issued shall file a written request with the hearing officer. This must 
be done at least 5 days before the date set for the hearing. The request 
must name the documents to be produced, and describe the address or 
location in enough detail to permit the witnesses or documents to be 
found.
    (3) The representative or the other party who wants a subpoena 
issued shall state in the request for a subpoena the material facts that 
he or she expects to establish by the witness or document, and why the 
facts could not be established by the use of other evidence which could 
be obtained without use of a subpoena.
    (4) We will pay the cost of the issuance and the fees and mileage of 
any witness subpoenaed, as provided in section 205(d) of the Act.
    (g) Conduct of the hearing. (1) The hearing officer shall make the 
hearing open to the representative, to the other party, and to any 
persons the hearing officer or the parties consider necessary or proper. 
The hearing officer shall inquire fully into the matters being 
considered, hear the testimony of witnesses, and accept any documents 
that are material.
    (2) If the representative did not file an answer to the charges, he 
or she has no right to present evidence at the hearing. The hearing 
officer may make or recommend a decision on the basis of the record, or 
permit the representative to present a statement about the sufficiency 
of the evidence or the validity of the proceedings upon which the 
suspension or disqualification, if it occurred, would be based.
    (3) If the representative did not file an answer to the charges, and 
if the hearing officer believes that there is material evidence 
available that was not presented at the hearing, the hearing officer may 
at any time before mailing notice of the hearing decision reopen the 
hearing to accept the additional evidence.
    (4) The hearing officer has the right to decide the order in which 
the evidence and the allegations will be presented and the conduct of 
the hearing.
    (h) Evidence. The hearing officer may accept evidence at the 
hearing, even though it is not admissible under the rules of evidence 
that apply to Federal court procedure.
    (i) Witnesses. Witnesses who testify at the hearing shall do so 
under oath or affirmation. Either the representative or a person 
representing him or her may question the witnesses. The other party and 
that party's representative must also be allowed to question the 
witnesses. The hearing officer may also ask questions as considered 
necessary, and shall rule upon any objection made by either party about 
whether any question is proper.
    (j) Oral and written summation. (1) The hearing officer shall give 
the representative and the other party a reasonable time to present oral 
summation and to file briefs or other written statements about proposed 
findings of fact and conclusions of law if the parties request it.
    (2) The party that files briefs or other written statements shall 
provide enough copies so that they may be made available to any other 
party to the hearing who requests a copy.

[[Page 920]]

    (k) Record of hearing. In all cases, the hearing officer shall have 
a complete record of the proceedings at the hearing made.
    (l) Representation. The representative, as the person charged, may 
appear in person and may be represented by an attorney or other 
representative.
    (m) Failure to appear. If the representative or the other party to 
the hearing fails to appear after being notified of the time and place, 
the hearing officer may hold the hearing anyway so that the party 
present may offer evidence to sustain or rebut the charges. The hearing 
officer shall give the party who failed to appear an opportunity to show 
good cause for failure to appear. If the party fails to show good cause, 
he or she is considered to have waived the right to be present at the 
hearing. If the party shows good cause, the hearing officer may hold a 
supplemental hearing.
    (n) Dismissal of charges. The hearing officer may dismiss the 
charges in the event of the death of the representative.
    (o) Cost of transcript. If the representative or the other party to 
a hearing requests a copy of the transcript of the hearing, the hearing 
officer will have it prepared and sent to the party upon payment of the 
cost, unless the payment is waived for good cause.

[45 FR 52106, Aug. 5, 1980, as amended at 56 FR 24132, May 29, 1991]



Sec. 416.1570  Decision by hearing officer.

    (a) General. (1) After the close of the hearing, the hearing officer 
shall issue a decision or certify the case to the Appeals Council. The 
decision must be in writing, will contain findings of fact and 
conclusions of law, and be based upon the evidence of record.
    (2) If the hearing officer finds that the charges against the 
representative have been sustained, he or she shall either--
    (i) Suspend the representative for a specified period of not less 
than 1 year, nor more than 5 years, from the date of the decision; or
    (ii) Disqualify the representative from acting as a representative 
in dealings with us until he or she may be reinstated under 
Sec. 416.1599.
    (3) The hearing officer shall mail a copy of the decision to the 
parties at their last known addresses. The notice will inform the 
parties of the right to request the Appeals Council to review the 
decision.
    (b) Effect of hearing officer's decision. (1) The hearing officer's 
decision is final and binding unless reversed or modified by the Appeals 
Council upon review.
    (2) If the final decision is that a person is disqualified from 
being a representative in dealings with us, he or she will not be 
permitted to represent anyone in dealings with us until authorized to do 
so under the provisions of Sec. 416.1599.
    (3) If the final decision is that a person is suspended for a 
specified period of time from being a representative in dealings with 
us, he or she will not be permitted to represent anyone in dealings with 
us during the period of suspension unless authorized to do so under the 
provisions of Sec. 416.1599.

[45 FR 52106, Aug. 5, 1980, as amended at 56 FR 24132, May 29, 1991]



Sec. 416.1575  Requesting review of the hearing officer's decision.

    (a) General. After the hearing officer issues a decision, either the 
representative or the other party to the hearing may ask the Appeals 
Council to review the decision.
    (b) Time and place of filing request for review. The party 
requesting review shall file the request for review in writing with the 
Appeals Council within 30 days from the date the hearing officer mailed 
the notice. The party requesting review shall certify that a copy of the 
request for review and of any documents that are submitted have been 
mailed to the opposing party.



Sec. 416.1576  Assignment of request for review of the hearing officer's decision.

    Upon receipt of a request for review of the hearing officer's 
decision, the matter will be assigned to a panel consisting of three 
members of the Appeals Council none of whom shall be the Chair of the 
Appeals Council. The panel shall jointly consider and rule by majority 
opinion on the request for review

[[Page 921]]

of the hearing officer's decision, including a determination to dismiss 
the request for review. Matters other than a final disposition of the 
request for review may be disposed of by the member designated chair of 
the panel.

[56 FR 24132, May 29, 1991]



Sec. 416.1580  Appeals Council's review of hearing officer's decision.

    (a) Upon request, the Appeals Council shall give the parties a 
reasonable time to file briefs or other written statements as to fact 
and law, and to appear before the Appeals Council to present oral 
argument.
    (b) If a party files a brief or other written statement with the 
Appeals Council, he or she shall send a copy to the opposing party and 
certify that the copy has been sent.



Sec. 416.1585  Evidence permitted on review.

    (a) General. Generally, the Appeals Council will not consider 
evidence in addition to that introduced at the hearing. However, if the 
Appeals Council believes that the evidence offered is material to an 
issue it is considering, the evidence will be considered.
    (b) Individual charged filed an answer. (1) When the Appeals Council 
believes that additional material evidence is available, and the 
representative has filed an answer to the charges, the Appeals Council 
shall require that the evidence be obtained. The Appeals Council may 
name an administrative law judge or a member of the Appeals Council to 
receive the evidence.
    (2) Before additional evidence is admitted into the record, the 
Appeals Council shall mail a notice to the parties telling them that 
evidence about certain issues will be obtained, unless the notice is 
waived. The Appeals Council shall give each party a reasonable 
opportunity to comment on the evidence and to present other evidence 
that is material to an issue it is considering.
    (c) Individual charged did not file an answer. If the representative 
did not file an answer to the charges, the Appeals Council will not 
permit the introduction of evidence that was not considered at the 
hearing.



Sec. 416.1590  Appeals Council's decision.

    (a) The Appeals Council shall base its decision upon the evidence in 
the hearing record and any other evidence it may permit on review. The 
Appeals Council shall either--
    (1) Affirm, reverse, or modify the hearing officer's decision;
    (2) Return a case to the hearing officer when the Appeals Council 
considers it appropriate.
    (b) The Appeals Council, in changing a hearing officer's decision to 
suspend a representative for a specified period, shall in no event 
reduce the period of suspension to less than 1 year. In modifying a 
hearing officer's decision to disqualify a representative, the Appeals 
Council shall in no event impose a period of suspension of less than 1 
year.
    (c) If the Appeals Council affirms or changes a hearing officer's 
decision, the period of suspension or the disqualification is effective 
from the date of the Appeals Council's decision.
    (d) If the hearing officer did not impose a period of suspension or 
a disqualification, and the Appeals Council decides to impose one or the 
other, the suspension or disqualification is effective from the date of 
the Appeals Council's decision.
    (e) The Appeals Council shall make its decision in writing and shall 
mail a copy of the decision to the parties at their last known 
addresses.

[45 FR 52106, Aug. 5, 1980, as amended at 56 FR 24133, May 29, 1991]



Sec. 416.1595  When the Appeals Council will dismiss a request for review.

    The Appeals Council may dismiss a request for the review of any 
proceeding to suspend or disqualify a representative in any of the 
following circumstances:
    (a) Upon request of party. The Appeals Council may dismiss a request 
for review upon written request of the party or parties who filed the 
request, if there is no other party who objects to the dismissal.
    (b) Death of party. The Appeals Council may dismiss a request for 
review in the event of the death of the representative.
    (c) Request for review not timely filed. The Appeals Council will 
dismiss a request for review if a party failed to file

[[Page 922]]

a request for review within the 30-day time period and the Appeals 
Council does not extend the time for good cause.



Sec. 416.1597  Reinstatement after suspension--period of suspension expired.

    We shall automatically allow a person to serve again as a 
representative in dealings with us at the end of any suspension.



Sec. 416.1599  Reinstatement after suspension or disqualification--period of suspension not expired.

    (a) After more than one year has passed, a person who has been 
suspended or disqualified may ask the Appeals Council for permission to 
serve as a representative again.
    (b) The suspended or disqualified person shall submit any evidence 
he or she wishes to have considered along with the request to be allowed 
to serve as a representative again.
    (c) The Appeals Council shall allow the Deputy Commissioner for 
Programs, or his or her designee, upon notification of receipt of the 
request, 30 days in which to present a written report of any experiences 
with the suspended or disqualified person subsequent to that person's 
suspension or disqualification. The Appeals Council shall make available 
to the suspended or disqualified person a copy of the report.
    (d) The Appeals Council shall not grant the request unless it is 
reasonably satisfied that the person will in the future act according to 
the provisions of section 1631(d)(2) of the Act, and to our regulations.
    (e) The Appeals Council shall mail a notice of its decision on the 
request to the suspended or disqualified person. It shall also mail a 
copy to the Deputy Commissioner for Programs.
    (f) If the Appeals Council decides not to grant the request it shall 
not consider another request before the end of 1 year from the date of 
the notice of the previous denial.

[45 FR 52106, Aug. 5, 1980, as amended at 56 FR 24133, May 29, 1991]



                  Subpart P--Residence and Citizenship

    Authority:  Secs. 702(a)(5), 1614(a)(1)(B) and (e), and 1631 of the 
Social Security Act (42 U.S.C. 902(a)(5), 1382c(a)(1)(B) and (e), and 
1383); 8 U.S.C. 1254a; sec. 502, Pub. L. 94-241, 90 Stat. 268 (48 U.S.C. 
1681 note).

    Source:  47 FR 3106, Jan. 22, 1982, unless otherwise noted.



Sec. 416.1600  Introduction.

    You are eligible for supplemental security income (SSI) benefits if 
you meet the requirements in subpart B. Among these are requirements 
that you must be a resident of the United States and either a citizen, a 
national, or an alien with a lawful right to reside permanently in the 
United States. In this subpart, we tell you what kinds of evidence show 
that you are a resident of the United States (see Sec. 416.1603) and--
    (a) A citizen or a national of the United States (see 
Sec. 416.1610);
    (b) An alien lawfully admitted for permanent residence in the United 
States (see Sec. 416.1615); or
    (c) An alien permanently residing in the United States under color 
of law (see Sec. 416.1618).



Sec. 416.1601  Definitions and terms used in this subpart.

    We or Us means the Social Security Administration.
    You or Your means the person who applies for or receives SSI 
benefits or the person for whom an application is filed.



Sec. 416.1603  How to prove you are a resident of the United States.

    (a) What you should give us. Your home address in the United States 
may be sufficient to establish that you are a resident. However, if we 
have any reason to question that you are a resident of the United States 
we will ask for evidence. You can prove you are a resident of the United 
States by giving us papers or documents showing that you live in the 
United States such as--
    (1) Property, income, or other tax forms or receipts;
    (2) Utility bills, leases or rent payment records;

[[Page 923]]

    (3) Documents that show you participate in a social services program 
in the United States; or
    (4) Other records or documents that show you live in the United 
States.
    (b) What ``resident of the United States'' means. We use the term 
resident of the United States to mean a person who is living within the 
geographical limits of the United States.
    (c) What ``United States'' means. We use the term United States in 
this section to mean the 50 States, the District of Columbia, and the 
Northern Mariana Islands.



Sec. 416.1610  How to prove you are a citizen or a national of the United States.

    (a) What you should give us. You can prove that you are a citizen or 
a national of the United States by giving us--
    (1) A certified copy of your birth certificate which shows that you 
were born in the United States;
    (2) A certified copy of a religious record of your birth or baptism 
which shows you were born in the United States;
    (3) Your naturalization certificate;
    (4) Your United States passport;
    (5) Your certificate of citizenship;
    (6) An identification card for use of resident citizens in the 
United States (Immigration and Naturalization Service Form I-197); or
    (7) An identification card for use of resident citizens of the 
United States by both or naturalization of parents (INS Form I-179).
    (b) How to prove you are an interim citizen of the United States if 
you live in the Northern Mariana Islands. As a resident of the Northern 
Mariana Islands you must meet certain conditions to prove you are an 
interim citizen of the United States. You must prove that you were 
domiciled in the Northern Mariana Islands as required by section 8 of 
the Schedule of Transitional Matters of the Constitution of the Northern 
Mariana Islands, or that you were born there after March 6, 1977. By 
``domiciled'' we mean that you maintained a residence with the intention 
of continuing that residence for an unlimited or indefinite period, and 
that you intended to return to that residence whenever absent, even for 
an extended period. You must also give us proof of your citizenship if 
you are a citizen of the Trust Territory of the Pacific Islands of which 
the Marianas are a part.
    (1) You can prove you were domiciled in the Northern Mariana Islands 
by giving us--
    (i) Statements of civil authorities; or
    (ii) Receipts or other evidence that show you were domiciled there.
    (2) You can prove that you are a citizen of the Trust Territory of 
the Pacific Islands by giving us--
    (i) Your identification card issued by the Trust Territory of the 
Pacific Islands and a public or religious record of age which shows you 
were born in this territory;
    (ii) Your voter's registration card;
    (iii) A Chammoro Family Record showing your birth in the Trust 
Territory of the Pacific Islands; or
    (iv) Your naturalization certificate.
    (c) What to do if you cannot give us the information listed in 
paragraph (a) or (b). If you cannot give us any of the documents listed 
in paragraph (a) or (b), we may find you to be a citizen or a national 
of the United States if you--
    (1) Explain why you cannot give us any of the documents; and
    (2) Give us any information you have which shows or results in proof 
that you are a citizen or a national of the United States. The kind of 
information we are most concerned about shows--
    (i) The date and place of your birth in the United States;
    (ii) That you have voted or are otherwise known to be a citizen or 
national of the United States; or
    (iii) The relationship to you and the citizenship of any person 
through whom you obtain citizenship.
    (d) What ``United States'' means. We use the term United States in 
this section to mean the 50 States, the District of Columbia, Puerto 
Rico, Guam, the Virgin Islands of the United States, American Samoa, 
Swain's Island, and the Northern Mariana Islands.



Sec. 416.1615  How to prove you are lawfully admitted for permanent residence in the United States.

    (a) What you should give us. You can prove that you are lawfully 
admitted

[[Page 924]]

for permanent residence in the United States by giving us--
    (1) An Alien Registration Receipt Card issued by the Immigration and 
Naturalization Service (INS) in accordance with that Agency's current 
regulations;
    (2) A reentry permit;
    (3) An alien identification card issued by the government of the 
Northern Mariana Islands showing that you are admitted to the Northern 
Mariana Islands for permanent residence; or
    (4) INS Form I-688 which shows that you have been granted lawful 
temporary resident status under section 210 or section 210A of the 
Immigration and Nationality Act.
    (b) What to do if you cannot give us the information listed in 
paragraph (a). If you cannot give us any of the documents listed in 
paragraph (a), we may find you to be lawfully admitted for permanent 
residence in the United States if you--
    (1) Explain why you cannot give us any of the documents; and
    (2) Give us any information you have which shows or results in proof 
that you are lawfully admitted for permanent residence in the United 
States.
    (c) What ``United States'' means. We use the term United States in 
this section to mean the 50 States, the District of Columbia, and the 
Northern Mariana Islands.

(Approved by the Office of Management and Budget under control number 
0960-0451)


[47 FR 3106, Jan. 22, 1982, as amended at 52 FR 21943, June 10, 1987; 56 
FR 55075, Oct. 24, 1991; 61 FR 56134, Oct. 31, 1996]



Sec. 416.1618  When you are considered permanently residing in the United States under color of law.

    (a) General. We will consider you to be permanently residing in the 
United States under color of law and you may be eligible for SSI 
benefits if you are an alien residing in the United States with the 
knowledge and permission of the Immigration and Naturalization Service 
and that agency does not contemplate enforcing your departure. The 
Immigration and Naturalization Service does not contemplate enforcing 
your departure if it is the policy or practice of that agency not to 
enforce the departure of aliens in the same category or if from all the 
facts and circumstances in your case it appears that the Immigration and 
Naturalization Service is otherwise permitting you to reside in the 
United States indefinitely. We make these decisions by verifying your 
status with the Immigration and Naturalization Service following the 
rules contained in paragraphs (b) through (e) of this section.
    (b) Categories of aliens who are permanently residing in the United 
States under color of law. Aliens who are permanently residing in the 
United States under color of law are listed below. None of the 
categories includes applicants for an Immigration and Naturalization 
status other than those applicants listed in paragraph (b)(6) of this 
section or those covered under paragraph (b)(17) of this section. None 
of the categories allows SSI eligibility for nonimmigrants; for example, 
students or visitors. Also listed are the most common documents that the 
Immigration and Naturalization Service provides to aliens in these 
categories:
    (1) Aliens admitted to the United States pursuant to 8 U.S.C. 
1153(a)(7), (section 203(a)(7) of the Immigration and Nationality Act). 
We ask for INS Form I-94 endorsed ``Refugee-Conditional Entry'';
    (2) Aliens paroled into the United States pursuant to 8 U.S.C. 
1182(d)(5) (section 212(d)(5) of the Immigration and Nationality Act) 
including Cuban/Haitian Entrants. We ask for INS Form I-94 with the 
notation that the alien was paroled pursuant to section 212(d)(5) of the 
Immigration and Nationality Act. For Cuban/Haitian Entrants, we ask for 
INS Form I-94 stamped ``Cuban/Haitian Entrant (Status Pending) 
reviewable January 15, 1981. Employment authorized until January 15, 
1981.'' (Although the forms bear this notation, Cuban/Haitian Entrants 
are admitted under section 212(d)(5) of the Immigration and Nationality 
Act.);
    (3) Aliens residing in the United States pursuant to an indefinite 
stay of deportation. We ask for an Immigration and Naturalization 
Service letter with this information or INS Form I-94 with such a 
notation;

[[Page 925]]

    (4) Aliens residing in the United States pursuant to an indefinite 
voluntary departure. We ask for an Immigration and Naturalization 
Service letter or INS Form I-94 showing that a voluntary departure has 
been granted for an indefinite time period;
    (5) Aliens on whose behalf an immediate relative petition has been 
approved and their families covered by the petition, who are entitled to 
voluntary departure (under 8 CFR 242.5(a)(2)(vi)) and whose departure 
the Immigration and Naturalization Service does not contemplate 
enforcing. We ask for a copy of INS Form I-94 or I-210 letter showing 
that status;
    (6) Aliens who have filed applications for adjustment of status 
pursuant to section 245 of the Immigration and Nationality Act (8 U.S.C. 
1255) that the Immigration and Naturalization Service has accepted as 
``properly filed'' (within the meaning of 8 CFR 245.2(a) (1) or (2)) and 
whose departure the Immigration and Naturalization Service does not 
contemplate enforcing. We ask for INS Form I-181 or a passport properly 
endorsed;
    (7) Aliens granted stays of deportation by court order, statute or 
regulation, or by individual determination of the Immigration and 
Naturalization Service pursuant to section 106 of the Immigration and 
Nationality Act (8 U.S.C. 1105a) or relevant Immigration and 
Naturalization Service instructions, whose departure that agency does 
not contemplate enforcing. We ask for INS Form I-94 or a letter from the 
Immigration and Naturalization Service, or copy of a court order 
establishing the alien's status;
    (8) Aliens granted asylum pursuant to section 208 of the Immigration 
and Nationality Act (8 U.S.C. 1158). We ask for INS Form I-94 and a 
letter establishing this status;
    (9) Aliens admitted as refugees pursuant to section 207 of the 
Immigration and Nationality Act (8 U.S.C. 1157) or section 203(a)(7) of 
the Immigration and Nationality Act (8 U.S.C. 1153(a)(7)). We ask for 
INS Form I-94 properly endorsed;
    (10) Aliens granted voluntary departure pursuant to section 242(b) 
of the Immigration and Nationality Act (8 U.S.C. 1252(b)) or 8 CFR 242.5 
whose departure the Immigration and Naturalization Service does not 
contemplate enforcing. We ask for INS Form I-94 or I-210 bearing a 
departure date;
    (11) Aliens granted deferred action status pursuant to Immigration 
and Naturalization Service Operations Instruction 103.1(a)(ii) prior to 
June 15, 1984 or 242.1(a)(22) issued June 15, 1984 and later. We ask for 
INS Form I-210 or a letter showing that departure has been deferred;
    (12) Aliens residing in the United States under orders of 
supervision pursuant to section 242 of the Immigration and Nationality 
Act (8 U.S.C. 1252(d)). We ask for INS Form I-220B;
    (13) Aliens who have entered and continuously resided in the United 
States since before January 1, 1972 (or any date established by section 
249 of the Immigration and Nationality Act, 8 U.S.C. 1259). We ask for 
any proof establishing this entry and continuous residence;
    (14) Aliens granted suspension of deportation pursuant to section 
244 of the Immigration and Nationality Act (8 U.S.C. 1254) and whose 
departure the Immigration and Naturalization Service does not 
contemplate enforcing. We ask for an order from the immigration judge;
    (15) Aliens whose deportation has been withheld pursuant to section 
243(h) of the Immigration and Nationality Act (8 U.S.C. 1253(h)). We ask 
for an order from an immigration judge showing that deportation has been 
withheld;
    (16) Aliens granted lawful temporary resident status pursuant to 
section 245A of the Immigration and Nationality Act (8 U.S.C. 1255a). We 
ask for INS form I-688 showing that status; or
    (17) Any other aliens living in the United States with the knowledge 
and permission of the Immigration and Naturalization Service and whose 
departure that agency does not contemplate enforcing.
    (c) How to prove you are in a category listed in paragraph (b) of 
this section. You must give us proof that you are in one of the 
categories in paragraph (b) of this section. You may give us--
    (1) Any of the documents listed in paragraph (b) of this section; or

[[Page 926]]

    (2) Other information which shows that you are in one of the 
categories listed in paragraph (b) of this section.
    (d) We must contact the Immigration and Naturalization Service. (1) 
We must contact the Immigration and Naturalization Service to verify the 
information you give us to prove you are permanently residing in the 
United States under color of law.
    (2) If you give us any of the documents listed in paragraphs (b)(1), 
(2), (3), (4), (8), (9), (11), (12), (13), (15), or (16) of this 
section, we will pay you benefits if you meet all other eligibility 
requirements. We will contact the Immigration and Naturalization Service 
to verify that the document you give us is currently valid.
    (3) If you give us any of the documents listed in paragraphs (b)(5), 
(6), (7), (10), or (14) of this section, or documents that indicate that 
you meet paragraph (b)(17) of this section, or any other information to 
prove you are permanently residing in the United States under color of 
law, we will contact the Immigration and Naturalization Service to 
verify that the document or other information is currently valid. We 
must also get information from the Immigration and Naturalization 
Service as to whether that agency contemplates enforcing your departure. 
We will apply the following rules:
    (i) If you have a document that shows that you have an Immigration 
and Naturalization Service status that is valid for an indefinite period 
we will assume that the Immigration and Naturalization Service does not 
contemplate enforcing your departure. Therefore, we will pay you 
benefits if you meet all other eligibility requirements. If, based on 
the information we get from the Immigration and Naturalization Service, 
we find that your document is currently valid, we will consider this 
sufficient proof that the Immigration and Naturalization Service does 
not contemplate enforcing your departure. We will continue your 
benefits. However, if we find that your document is not currently valid, 
we will suspend your benefits under Sec. 416.1321.
    (ii) If you have a document that appears currently valid and shows 
you have an Immigration and Naturalization Service status for at least 1 
year, or that shows the Immigration and Naturalization Service is 
allowing you to remain in the United States for a specified period due 
to conditions in your home country, we will assume that the Immigration 
and Naturalization Service does not contemplate enforcing your 
departure. Therefore, we will pay you benefits if you meet all other 
eligibility requirements. If, based on the information we get from the 
Immigration and Naturalization Service, we learn that your document is 
currently valid and that agency does not contemplate enforcing your 
departure, we will continue your benefits. However, if we learn that 
your document is not currently valid or that the Immigration and 
Naturalization Service does contemplate enforcing your departure, we 
will suspend your benefits under Sec. 416.1321.
    (iii) If you have a document that shows you have an Immigration and 
Naturalization Service status valid for less than 1 year, or if your 
document has no expiration date, or if you have no document, we will not 
pay you benefits until the Immigration and Naturalization Service 
confirms that your document is currently valid and we get information 
from that agency that indicates whether it contemplates enforcing your 
departure. If that agency does not contemplate enforcing your departure, 
we will pay you benefits if you meet all other eligibility requirements.
    (iv) If at any time after you begin receiving benefits we receive 
information from the Immigration and Naturalization Service which 
indicates that the Immigration and Naturalization Service contemplates 
enforcing your departure, we will suspend your benefits under 
Sec. 416.1321 and any benefits you have received after the date that the 
Immigration and Naturalization Service began contemplating enforcing 
departure will be overpayments under subpart E of this part.
    (e) What ``United States'' means. We use the term United States in 
this section to mean the 50 States, the District

[[Page 927]]

of Columbia, and the Northern Mariana Islands.

(Approved by the Office of Management and Budget under control number 
0960-0451)


[52 FR 21943, June 10, 1987, as amended at 56 FR 55075, Oct. 24, 1991; 
56 FR 61287, Dec. 2, 1991]



Sec. 416.1619  When you cannot be considered permanently residing in the United States under color of law.

    We will not consider you to be permanently residing in the United 
States under color of law and you are not eligible for SSI benefits 
during a period in which you have been granted temporary protected 
status by the Immigration and Naturalization Service under section 244A 
of the Immigration and Nationality Act.

[58 FR 41182, Aug. 3, 1993]



Subpart Q--Referral of Persons Eligible for Supplemental Security Income 
                            to Other Agencies

    Authority:  Secs. 702(a)(5), 1611(e)(3), 1615, and 1631 of the 
Social Security Act (42 U.S.C. 902(a)(5), 1382(e)(3), 1382d, and 1383).

    Source:  45 FR 70859, Oct. 27, 1980, unless otherwise noted.

                                 General



Sec. 416.1701  Scope of subpart.

    This subpart describes whom we refer to agencies for (a) vocational 
rehabilitation services or (b) treatment for alcoholism or drug 
addiction. The purpose of these services or treatments is to restore 
your ability to work. This subpart also describes the conditions under 
which you can refuse these services or treatments after we have referred 
you. If these conditions are not met, this subpart describes how your 
benefits are effected when you refuse these services or treatments.



Sec. 416.1705  Definitions.

    As used in this subpart--
    Vocational rehabilitation services refers to services provided blind 
or disabled persons under the State plan approved under the 
Rehabilitation Act of 1973 (see 45 CFR 401.120ff for requirements of 
these State plans).
    We or us refers to either the Social Security Administration or the 
State agency making the disability or blindness determination.
    You or your refers to the person who applies for or receives 
benefits or the person for whom an application is filed.

             Referral for Vocational Rehabilitation Services



Sec. 416.1710  Whom we refer and when.

    (a) Whom we refer. If you are 16 years of age or older and under 65 
years old, and receiving supplemental security income (SSI) benefits, we 
will refer you to the State agency providing vocational rehabilitation 
services. If you are under age 16, we will refer you to an agency 
administering services under the Maternal and Child Health Services 
(Title V) Block Grant Act.
    (b) When we refer. We will make this referral when we find you 
eligible for benefits or at any other time that we find you might be 
helped by vocational rehabilitation services.

[45 FR 70859, Oct. 27, 1980, as amended at 48 FR 6297, Feb. 23, 1983]



Sec. 416.1715  Effect of your rejecting vocational rehabilitation services.

    (a) Ineligible for benefits if you do not have good cause. If we 
refer you to the State agency providing vocational rehabilitation 
services, you are not eligible for SSI benefits for any month that you 
refuse, without good cause, to accept services available to you (see 
Sec. 416.1328(a) on suspension because of a refusal). In determining 
whether you have good cause for refusing vocational rehabilitation 
services, we will take into account any physical, mental, educational, 
or linguistic limitations (including any lack of facility with the 
English language) which may have caused you to refuse such services. If 
you believe good cause exists to refuse these services, you will be 
asked to submit proof showing this.
    (b) Examples of good cause. If you can show good cause for not 
accepting vocational rehabilitation services offered to you, you will 
continue to be eligible for benefits. Examples of good cause include the 
following:

[[Page 928]]

    (1) The services that are offered are not designed to restore your 
ability to work.
    (2) You are already in a program (either governmental or private) 
that is expected to restore your ability to work.
    (3) You are regularly attending a school, college, or university or 
are attending a course of vocational or technical training, and the 
program you are attending is designed to restore your ability to work.
    (4) You are physically or mentally unable to participate in the 
services that are offered.
    (5) The services offered would interfere with a medical program 
provided for you.
    (6) The services would require you to be away from home and your 
absence would be harmful to the health and welfare of your family.
    (7) You are working at the present time or you will be working 
within 3 months.
    (8) You are a member or a follower of a recognized church or 
religious sect which teaches its members or followers to rely solely on 
prayer or other spiritual means for the treatment and care of any 
physical or mental illness, and you refuse to accept these services 
solely because of your belief in these teachings.

[45 FR 70859, Oct. 27, 1980, as amended at 59 FR 1637, Jan. 12, 1994]

         Referral for Treatment of Alcoholism or Drug Addiction



Sec. 416.1720  Whom we refer.

    We will refer you to an approved facility for treatment of your 
alcoholism or drug addiction if--
    (a) You are disabled;
    (b) You are not blind;
    (c) You are not 65 years old or older; and
    (d) Alcoholism or drug addiction is a contributing factor to your 
disability.



Sec. 416.1725  Effect of your failure to comply with treatment requirements for your drug addiction or alcoholism.

    (a) Suspension of benefits. Your eligibility for benefits will be 
suspended beginning with the first month after we notify you in writing 
that we have determined that you have failed to comply with the 
treatment requirements for your drug addiction or alcoholism as defined 
in Sec. 416.940. Your benefits will be suspended and reinstated in 
accordance with the provisions in Sec. 416.1326.
    (b) Termination of benefits. If your benefits are suspended for 12 
consecutive months for failure to comply with treatment in accordance 
with Sec. 416.1326, your eligibility for disability benefits will be 
terminated in accordance with Sec. 416.1331.

[60 FR 8153, Feb. 10, 1995]



                         Subpart R--Relationship

    Authority:  Secs. 702(a)(5), 1614(b), (c), and (d), and 1631(d)(1) 
and (e) of the Social Security Act (42 U.S.C. 902(a)(5), 1382c (b), (c), 
and (d), and 1383 (d)(1) and (e)).

    Source:  45 FR 71795, Oct. 30, 1980, unless otherwise noted. 
Redesignated at 46 FR 29211, May 29, 1981; 46 FR 42063, Aug. 19, 1981.



Sec. 416.1801  Introduction.

    (a) What is in this subpart. This subpart contains the basic rules 
for deciding for SSI purposes whether a person is considered married 
and, if so, to whom; whether a person is considered a child; and whether 
a person is considered another person's parent. It tells what 
information and evidence we need to decide these facts.
    (b) Related subparts. Subpart D discusses how to determine the 
amount of a person's benefits; subpart G discusses what changes in a 
person's situation he or she must report to us; subpart K discusses how 
we count income; and subpart L discusses how we count resources (money 
and property). The questions of whether a person is married, to whom a 
person is married, whether a person is a child, and who is a person's 
parent must be answered in order to know which rules in subparts D, G, 
K, and L apply.
    (c) Definitions. In this subpart--
    Eligible spouse means a person--
    (1) Who is eligible for SSI,
    (2) Whom we consider the spouse of another person who is eligible 
for SSI, and

[[Page 929]]

    (3) Who was living in the same household with that person on--
    (i) The date of filing an application for benefits (for the month of 
an application);
    (ii) The date a request for reinstatement of eligibility is filed 
(for the month of such request); or
    (iii) The first day of the month, for all other months. An 
individual is considered to be living with an eligible spouse during 
temporary absences as defined in Sec. 416.1149 and while receiving 
continued benefits under section 1611(e)(1) (E) or (G) of the Act.
    Spouse means a person's husband or wife under the rules of 
Secs. 416.1806 and 416.1811.
    We and us mean the Social Security Administration.
    You means a person who has applied for or has been receiving SSI 
benefits, or a person for whom someone else has applied for or has been 
receiving SSI benefits.

[45 FR 71795, Oct. 30, 1980. Redesignated at 46 FR 29211, May 29, 1981; 
46 FR 42063, Aug. 19, 1981, as amended at 60 FR 16376, Mar. 30, 1995]

                      Who Is Considered Your Spouse



Sec. 416.1802  Effects of marriage on eligibility and amount of benefits.

    (a) If you have an ineligible spouse--(1) Counting income. If you 
apply for or receive SSI benefits, and you are married to someone who is 
not eligible for SSI benefits and are living in the same household as 
that person, we may count part of that person's income as yours. 
Counting part of that person's income as yours may reduce the amount of 
your benefits or even make you ineligible. Section 416.410 discusses the 
amount of benefits and Sec. 416.1163 explains how we count income for an 
individual with an ineligible spouse.
    (2) Counting resources. If you are married to someone who is not 
eligible for SSI benefits and are living in the same household as that 
person, we will count the value of that person's resources (money and 
property), minus certain exclusions, as yours when we determine your 
eligibility. Section 416.1202(a) gives a more detailed statement of how 
we count resources and Sec. 416.1205(a) gives the limit of resources 
allowed for eligibility of a person with an ineligible spouse.
    (b) If you have an eligible spouse--(1) Counting income. If you 
apply for or receive SSI benefits and have an eligible spouse as defined 
in Sec. 416.1801(c), we will count your combined income and calculated 
the benefit amount for you as a couple. Section 416.412 gives a detailed 
statement of the amount of benefits and subpart K of this part explains 
how we count income for an eligible couple.
    (2) Counting resources. If you have an eligible spouse as defined in 
Sec. 416.1801(c), we will count the value of your combined resources 
(money and property), minus certain exclusions, and use the couple's 
resource limit when we determine your eligibility. Section 416.1205(b) 
gives a detailed statement of the resource limit for an eligible couple.
    (c) If you are married, we do not consider you a child. The rules 
for counting income and resources are different for children than for 
adults. (Section 416.1851 discusses the effects of being considered a 
child on eligibility and amount of benefits.) Regardless of your age, if 
you are married we do not consider you to be a child.
    (d)(1) General rule: Benefits depend on whether you are married or 
not married at the beginning of each month. If you get married, even on 
the first day of a month we will treat you as single until the next 
month. If your marriage ends, even on the first day of a month, we will 
treat you as married until the next month.
    (2) Exception: If you both meet eligibility requirements after your 
date of marriage or after your marriage ends. If, in the month that you 
marry, each of you first meets all eligibility requirements after the 
date of your marriage, we will treat you as an eligible couple for that 
month. If, in the month that your marriage ends, each of you first meets 
all eligibility requirements after the date your marriage ends, we will 
treat you as eligible individuals. (See subparts D and E regarding how 
your benefits will be prorated.)

[45 FR 71795, Oct. 30, 1980. Redesignated at 46 FR 29211, May 29, 1981; 
46 FR 42063, Aug. 19, 1981, and amended at 51 FR 13495, Apr. 21, 1986; 
60 FR 16376, Mar. 30, 1995]

[[Page 930]]



Sec. 416.1806  Whether you are married and who is your spouse.

    (a) We will consider someone to be your spouse (and therefore 
consider you to be married) for SSI purposes if--
    (1) You are legally married under the laws of the State where your 
and his or her permanent home is (or was when you lived together);
    (2) We have decided that either of you is entitled to husband's or 
wife's Social Security insurance benefits as the spouse of the other 
(this decision will not affect your SSI benefits for any month before it 
is made); or
    (3) You and an unrelated person of the opposite sex are living 
together in the same household at or after the time you apply for SSI 
benefits, and you both lead people to believe that you are husband and 
wife.
    (b) if more than one person would qualify as your husband or wife 
under paragraph (a) of this section, we will consider the person you are 
presently living with to be your spouse for SSI purposes.

[60 FR 16376, Mar. 30, 1995]



Sec. 416.1816  Information we need concerning marriage when you apply for SSI.

    When you apply for SSI benefits, we will ask whether you are 
married. If you are married, we will ask whether you are living with 
your spouse. If you are unmarried or you are married but not living with 
your spouse, we will ask whether you are living in the same household 
with anyone of the opposite sex who is not related to you. If you are, 
we will ask whether you and that person lead other people to believe 
that you are husband and wife.



Sec. 416.1821  Showing that you are married when you apply for SSI.

    (a) General rule: Proof is unnecessary. If you tell us you are 
married we will consider you married unless we have information to the 
contrary. We will also consider you married, on the basis of your 
statement, if you say you are living with an unrelated person of the 
opposite sex and you both lead people to believe you are married. 
However, if we have information contrary to what you tell us, we will 
ask for evidence as described in paragraph (c).
    (b) Exception: If you are a child to whom parental deeming rules 
apply. If you are a child to whom the parental deeming rules apply and 
we receive information from you or others that you are married, we will 
ask for evidence of your marriage. The rules on deeming parental income 
are in Secs. 416.1165 and 416.1166. The rules on deeming of parental 
resources are in Sec. 416.1202.
    (c) Evidence of marriage. If paragraph (a) or (b) of this section 
indicates that you must show us evidence that you are married, you must 
show us your marriage certificate (which can be the original 
certificate, a certified copy of the public record of marriage, or a 
certified copy of the church record) if you can. If you cannot, you must 
tell us why not and give us whatever evidence you can.

[45 FR 71795, Oct. 30, 1980. Redesignated at 46 FR 29211, May 29, 1981; 
46 FR 42063, Aug. 19, 1981, and amended at 52 FR 8889, Mar. 20, 1987]



Sec. 416.1826  Showing that you are not married when you apply for SSI.

    (a) General rule: Proof is unnecessary. If you do not live with an 
unrelated person of the opposite sex and you say that you are not 
married, we will generally accept your statement unless we have 
information to the contrary.
    (b) Exception: If you are under age 22 and have been married. If you 
are under age 22 and have been married, to prove that your marriage has 
ended you must show us the decree of divorce or annulment or the death 
certificate if you can. If you cannot, you must tell us why not and give 
us whatever evidence you can.
    (c) Exception: If you are living with an unrelated person of the 
opposite sex. (1) If you are living with an unrelated person of the 
opposite sex, you and the person you are living with must explain to us 
what your relationship is and answer questions such as the following:
    (i) What names are the two of you known by?
    (ii) Do you introduce yourselves as husband and wife? If not, how 
are you introduced?
    (iii) What names are used on mail for each of you?
    (iv) Who owns or rents the place where you live?

[[Page 931]]

    (v) Do any deeds, leases, time payment papers, tax papers, or any 
other papers show you as husband and wife?
    (2) We will consider you married to the person you live with unless 
the information we have, including the answers to the questions in 
paragraph (c)(1) of this section, all considered together, show that the 
two of you do not lead people to believe that you are each other's 
husband and wife.



Sec. 416.1830  When we stop considering you and your spouse an eligible couple.

    We will stop considering you and your spouse an eligible couple, 
even if you both remain eligible, at the beginning of whichever of these 
months comes first--
    (a) The calendar month after the month you stopped living with your 
eligible spouse, or
    (b) The calendar month after the month in which your marriage ends.

[45 FR 71795, Oct. 30, 1980. Redesignated at 46 FR 29211, May 29, 1981; 
46 FR 42063, Aug. 19, 1981, as amended at 60 FR 16376, Mar. 30, 1995]



Sec. 416.1832  When we consider your marriage ended.

    We consider your marriage ended when--
    (a) Your spouse dies;
    (b) Your divorce or annulment becomes final;
    (c) We decide that either of you is not a spouse of the other for 
purposes of husband's or wife's social security insurance benefits, if 
we considered you married only because of Sec. 416.1806(a)(2); or
    (d) You and your spouse stop living together, if we considered you 
married only because of Sec. 416.1806(a)(3).

[45 FR 71795, Oct. 30, 1980. Redesignated at 46 FR 29211, May 29, 1981; 
46 FR 42063, Aug. 19, 1981, as amended at 60 FR 16376, Mar. 30, 1995]



Sec. 416.1835  Information we need about separation or end of marriage after you become eligible for SSI.

    (a) If you and your spouse stop living together. If you and your 
spouse stop living together, you must promptly report that fact to us, 
so that we can decide whether there has been a change that affects 
either person's benefits. You must also answer questions such as the 
following. If you cannot answer our questions you must tell us why not 
and give us whatever information you can.
    (1) When did you stop living together?
    (2) Do you expect to live together again?
    (3) If so, when?
    (4) Where is your husband or wife living?
    (5) Is either of you living with someone else as husband and wife?
    (b) Evidence of end of marriage--(1) Death. We will accept your 
statement that your husband or wife died unless we have information to 
the contrary. If we have contrary information, you must show us the 
death certificate if you can. If you cannot, you must tell us why not 
and give us whatever evidence you can.
    (2) Divorce or annulment. If your marriage ends by divorce or 
annulment, you must show us the decree of divorce or annulment if you 
can. If you cannot, you must tell us why not and give us whatever 
evidence you can.
    (3) Other reason. If your marriage ends for reasons other than 
death, divorce, or annulment, you must give us any information we ask 
you to give us about the end of the marriage. If you cannot, you must 
explain why you cannot. We will consider all of the relevant information 
to decide if and when your marriage ends.

                        Who Is Considered a Child



Sec. 416.1851  Effects of being considered a child.

    If we consider you to be a child for SSI purposes, the rules in this 
section apply when we determine your eligibility for SSI and the amount 
of your SSI benefits.
    (a) If we consider you to be a student, we will not count all of 
your earned income when we determine your SSI eligibility and benefit 
amount. Section 416.1110 tells what we mean by earned income. Section 
416.1112(c)(2) tells how much of your earned income we will not count.
    (b) If you have a parent who does not live with you but who pays 
money to help support you, we will not count one-third of that money 
when we count

[[Page 932]]

your income. Section 416.1124(c)(9) discusses this rule.
    (c) If you are under age 18 and live with your parent or stepparent 
who is not eligible for SSI benefits, we consider (deem) part of his or 
her income and resources to be your own. Sections 416.1165 and 416.1166 
explain the rules and the exception to the rules on deeming your 
parent's income to be yours, and Sec. 416.1202 explains the rules and 
the exception to the rules on deeming your parent's resources to be 
yours.

[45 FR 71795, Oct. 30, 1980. Redesignated at 46 FR 29211, May 29, 1981; 
46 FR 42063, Aug. 19, 1981, and amended at 52 FR 8889, Mar. 20, 1987]



Sec. 416.1856  Who is considered a child.

    We consider you to be a child if--
    (a)(1) You are under 18 years old; or
    (2) You are under 22 years old and you are a student regularly 
attending school or college or training that is designed to prepare you 
for a paying job;
    (b) You are not married; and
    (c) You are not the head of a household.



Sec. 416.1861  Deciding whether you are a child: Are you a student?

    (a) Are you a student? You are a student regularly attending school 
or college or training that is designed to prepare you for a paying job 
if you are enrolled for one or more courses of study and you attend 
class--
    (1) In a college or university for at least 8 hours a week under a 
semester or quarter system;
    (2) In grades 7-12 for at least 12 hours a week;
    (3) In a course of training to prepare you for a paying job, and you 
are attending that training for at least 15 hours a week if the training 
involves shop practice or 12 hours a week if it does not involve shop 
practice (this kind of training includes anti-poverty programs, such as 
the Job Corps, and government-supported courses in self-improvement); or
    (4) Less than the amount of time given in paragraph (a) (1), (2), or 
(3) of this section for reasons you cannot control, such as illness, if 
the circumstances justify your reduced credit load or attendance.
    (b) If you have to stay home. You may be a student regularly 
attending school, college, or training to prepare you for a paying job 
if--
    (1) You have to stay home because of your disability;
    (2) You are studying at home a course or courses given by a school 
(grades 7-12), college, university, or government agency; and
    (3) A home visitor or tutor directs your study or training.
    (c) When you are not in school--(1) When school is out. We will 
consider you to be a student regularly attending school, college, or 
training to prepare you for a paying job even when classes are out if 
you actually attend regularly just before the time classes are out and 
you--
    (i) Tell us that you intend to resume attending regularly when 
school opens again; or
    (ii) Actually do resume attending regularly when school opens again.
    (2) Other times. Your counselor or teacher may believe you need to 
stay out of class for a short time during the course or between courses 
to enable you to continue your study or training. That will not stop us 
from considering you to be a student regularly attending school, 
college, or training to prepare you for a paying job if you are in--
    (i) A course designed to prepare disabled people for work; or
    (ii) A course to prepare you for a job that is specially set up for 
people who cannot work at ordinary jobs.
    (d) Last month of school. We will consider you to be a student 
regularly attending school, college, or training to prepare you for a 
paying job for the month in which you complete or stop your course of 
study or training.
    (e) When we need evidence that you are a student. We need evidence 
that you are a student if--
    (1) You are 18 years old or older but under age 22, because we will 
not consider you to be a child unless we consider you to be a student; 
or
    (2) We consider you to be a child and you expect to earn over $195 
in any 3-month period, because we will not count all of your earned 
income if we consider you to be a student.

[[Page 933]]

    (f) What evidence we need. If we need evidence that you are a 
student, you must--
    (1) Show us any paper you have that shows you are a student in a 
school, college, or training program, such as a student identification 
card or tuition receipt; and
    (2) Tell us--
    (i) What courses you are taking;
    (ii) How many hours a week you spend in classes;
    (iii) The name and address of the school or college you attend or 
the agency training you; and
    (iv) The name and telephone number of someone at the school, 
college, or agency who can tell us more about your courses, in case we 
need information you cannot give us.



Sec. 416.1866  Deciding whether you are a child: Are you the head of a household?

    (a) Meaning of head of household. You are the head of a household if 
you have left your parental home on a permanent basis and you are 
responsible for the day-to-day decisions on the operation of your own 
household. If you live with your parent(s) or stepparents, we will 
ordinarily assume you are not the head of a household. However, we will 
consider you to be the head of a household if for some reason (such as 
your parent's illness) you are the one who makes the day-to-day 
decisions. You need not have someone living with you to be the head of a 
household.
    (b) If you share decision-making equally. If you live with one or 
more people and everyone has an equal voice in the decision-making (for 
example, a group of students who share off-campus housing), that group 
is not a household. Each person who has left the parental home on a 
permanent basis is the head of his or her own household.

                      Who Is Considered Your Parent



Sec. 416.1876  Effects a parent (or parents) can have on the child's benefits.

    Section 416.1851 (b) and (c) tells what effects a parent's income 
and resources can have on his or her child's benefits.



Sec. 416.1881  Deciding whether someone is your parent or stepparent.

    (a) We consider your parent to be--
    (1) Your natural mother or father; or
    (2) A person who legally adopted you.
    (b) We consider your stepparent to be the present husband or wife of 
your natural or adoptive parent. A person is not your stepparent if your 
natural or adoptive parent, to whom your stepparent was married, has 
died, or if your parent and stepparent have been divorced or their 
marriage has been annulled.
    (c) Necessary evidence. We will accept your statement on whether or 
not someone is your parent or stepparent unless we have information to 
the contrary. If we have contrary information, you must show us, if you 
can, one or more of the following kinds of evidence that would help to 
prove whether or not the person is your parent or stepparent: 
Certificate of birth, baptism, marriage, or death, or decree of 
adoption, divorce, or annulment. If you cannot, you must tell us why not 
and show us any other evidence that would help to show whether or not 
the person is your parent or stepparent.



                Subpart S--Interim Assistance Provisions

    Authority:  Secs. 702(a)(5) and 1631 of the Social Security Act (42 
U.S.C. 902(a)(5) and 1383).

    Source:  46 FR 47449, Sept. 27, 1981, unless otherwise noted.

                              Introduction



Sec. 416.1901  Scope of subpart S.

    (a) General. This subpart explains that we may withhold your SSI 
benefit and/or State supplementary payments and send them to the State 
(or a political subdivision of the State) as repayment for interim 
assistance it gave you while your application for SSI was pending, or 
while your SSI benefits were suspended or terminated if you are 
subsequently found to have been eligible for such benefits. Before we 
will do this, the State must have entered into an interim assistance 
agreement with us authorizing such reimbursement, and you must have 
given written authorization for us to repay the State (or a political 
subdivision of the State).
    (b) Organization of this subpart. We have organized this subpart as 
follows:

[[Page 934]]

    (1) Definitions. Section 416.1902 contains definitions of terms used 
in this subpart.
    (2) Authorizations. Sections 416.1904 through 416.1908 give the 
rules that apply to your written authorization.
    (3) Interim assistance agreements. Section 416.1910 gives the 
requirements for interim assistance agreements between us and the State.
    (4) Appeals. Sections 416.1920 through 416.1922 describe your appeal 
rights in the State and in SSA.

[46 FR 47449, Sept. 27, 1981, as amended at 56 FR 19262, Apr. 26, 1991]



Sec. 416.1902  Definitions.

    For purposes of this subpart--
    Authorization means your written permission, in a form legally 
acceptable to us and to the State from which you received interim 
assistance, for us to withhold the appropriate SSI benefit payment and 
send it to the State.
    Interim assistance means assistance the State gives you, including 
payments made on your behalf to providers of goods or services, to meet 
your basic needs, beginning with the day of the month you apply for SSI 
benefits and are eligible for them, and ending with, and including, the 
month your SSI benefit payments begin, or assistance the State gives you 
beginning with the day for which your eligibility for SSI benefits is 
reinstated after a period of suspension or termination and ending with, 
and including, the month the Secretary makes the first payment of 
benefits following the suspension or termination if it is determined 
subsequently that you were eligible for benefits during that period. It 
does not include assistance the State gives to or for any other person. 
If the State has prepared and cannot stop delivery of its last 
assistance payment to you when it receives your SSI benefit payment from 
us, that assistance payment is included as interim assistance to be 
reimbursed. Interim assistance does not include assistance payments 
financed wholly or partly with Federal funds.
    SSI benefit payment means your Federal benefit and any State 
supplementary payment made by us to you on behalf of a State (see 
subpart T of this part) which is due you at the time we make the first 
payment of benefits or when your benefits are reinstated after 
suspension or termination. Advance payment, as defined in Sec. 416.520, 
payment based upon presumptive disability or presumptive blindness, as 
defined in Sec. 416.931, or certain payments made under the 
administrative immediate payment procedure, are not considered SSI 
benefit payments for interim assistance purposes.
    State for purposes of an interim assistance agreement, means a State 
of the United States, the District of Columbia, or the Northern Mariana 
Islands. For all other purposes (for example, payment, appeals, notices) 
State also means a political subdivision of any of these.
    We, Us, or Our means the Social Security Administration.
    You or Your means someone who has applied for or is already 
receiving SSI benefits.

[46 FR 47449, Sept. 28, 1981; 46 FR 50947, Oct. 16, 1981, as amended at 
56 FR 19262, Apr. 26, 1991; 56 FR 25446, June 4, 1991]

                             Authorizations



Sec. 416.1904  Authorization to withhold SSI benefits.

    We may withhold your SSI benefit payment and send it to the State to 
repay the State for the interim assistance it gave to you, if--
    (a) We have an interim assistance agreement with the State at the 
time your authorization goes into effect; and
    (b) Your authorization is in effect at the time we make the SSI 
benefit payment.



Sec. 416.1906  When your authorization is in effect.

    Your authorization for us to withhold your SSI benefit payment, to 
repay the State for interim assistance the State gives you, is effective 
when we receive it, or (if our agreement with the State allows) when we 
receive notice from the State that it has received your authorization. 
It remains in effect until--
    (a) We make the first SSI benefit payment on your initial 
application for benefits or, in the case of an authorization effective 
for a period of suspense

[[Page 935]]

or termination, until the initial payment following the termination or 
suspension of your benefits.
    (b) We make a final determination on your claim (if your SSI claim 
is denied, the denial is the final determination, unless you file a 
timely appeal as described in subpart N of this part);
    (c) You and the State agree to terminate your authorization; or
    (d) If earlier than the event in paragraph (a), (b), or (c) of this 
section, the date (if any) specified in your authorization.

[46 FR 47449, Sept. 27, 1981, as amended at 56 FR 19262, Apr. 26, 1991]



Sec. 416.1908  When we need another authorization.

    Once an event described in Sec. 416.1906 occurs, your authorization 
is no longer effective. If you reapply for SSI benefits, or the 
authorization has expired, the State must obtain a new authorization 
from you in order for us to repay the State for interim assistance it 
gives you.

                      Interim Assistance Agreements



Sec. 416.1910  Requirements for interim assistance agreement.

    An interim assistance agreement must be in effect between us and the 
State if we are to repay the State for interim assistance. The following 
requirements must be part of the agreement:
    (a) SSA to repay the State. We must agree to repay the State for 
interim assistance it gives you. Repayment to the State takes priority 
over any underpayments due you (see Secs. 416.525 and 416.542).
    (b) State to pay any excess repayment to you. The State must agree 
that, if we repay it an amount greater than the amount of interim 
assistance it gave to you, the State will--
    (1) Pay the excess amount to you no later than 10 working days from 
the date the State receives repayment from us; or
    (2) Refund the excess amount to us for disposition under the rules 
in subpart E of the this part on payment of benefits if the State cannot 
pay it to you (for example, you die or you move and the State cannot 
locate you).
    (c) State to notify you. The State must agree to give you written 
notice explaining--
    (1) How much we have repaid the State for interim assistance it gave 
you;
    (2) The excess amount, if any, due you; and
    (3) That it will give you an opportunity for a hearing if you 
disagree with State's actions regarding repayment of interim assistance.
    (d) Duration of the agreement. We and the State must agree to the 
length of time that the agreement will remain in effect.
    (e) State to comply with other regulations. The State must agree to 
comply with any other regulations that we find necessary to administer 
the interim assistance provisions.

                                 Appeals



Sec. 416.1920  Your appeal rights in the State.

    Under its interim assistance agreement with us, the State must agree 
to give you an opportunity for a hearing if you disagree with the 
State's actions regarding repayment of interim assistance. For example, 
you are entitled to a hearing by the State if you disagree with the 
State regarding the amount of the repayment the State keeps or the 
amount of any excess the State pays to you. You are not entitled to a 
Federal hearing on the State's actions regarding repayment of interim 
assistance.



Sec. 416.1922  Your appeal rights in SSA.

    If you disagree with the total amount of money we have withheld and 
sent to the State for the interim assistance it gave to you, you have a 
right to appeal to us, as described in subpart N of this part.



    Subpart T--State Supplementation Provisions; Agreement; Payments

    Authority:  Secs. 702(a)(5), 1616, 1618, and 1631 of the Social 
Security Act (42 U.S.C. 902(a)(5), 1382e, 1382g, and 1383); sec. 212, 
Pub. L. 93-66, 87 Stat. 155 (42 U.S.C. 1382 note); sec. 8(a), (b)(1)-
(b)(3), Pub. L. 93-233, 87 Stat. 956 (7 U.S.C. 612c note, 1431 note and 
42 U.S.C. 1382e note); secs. 1(a)-(c) and 2(a), 2(b)(1), 2(b)(2), Pub. 
L. 93-335, 88 Stat. 291 (42 U.S.C. 1382 note, 1382e note).

[[Page 936]]


    Source:  40 FR 7640, Feb. 21, 1975, unless otherwise noted.



Sec. 416.2001  State supplementary payments; general.

    (a) State supplementary payments; defined. State supplementary 
payments are any payments made by a State or one of its political 
subdivisions (including any such payments for which reimbursement is 
available from the Social Security Administration pursuant to Pub. L. 
94-23, as amended) to a recipient of supplemental security income 
benefits (or to an individual who would be eligible for such benefits 
except for income), if the payments are made:
    (1) In supplementation of the Federal supplemental security income 
benefits; i.e., as a complement to the Federal benefit amount, thereby 
increasing the amount of income available to the recipient to meet his 
needs; and
    (2) Regularly, on a periodic recurring, or routine basis of at least 
once a quarter; and
    (3) In cash, which may be actual currency or any negotiable 
instrument, convertible into cash upon demand; and
    (4) In an amount based on the need or income of an individual or 
couple.
    (b) State; defined. For purposes of this subpart, State means a 
State of the United States or the District of Columbia.
    (c) Mandatory minimum supplementary payments. In order for a State 
to be eligible for payments pursuant to title XIX of the Act with 
respect to expenditures for any quarter beginning after December 1973, 
such State must have in effect an agreement with the Secretary under 
which such State will provide to aged, blind, and disabled individuals 
(as defined in Sec. 416.202) residing in the State who were recipients 
of aid or assistance for December 1973 as defined in Sec. 416.121, under 
such State's plan approved under title I, X, XIV, or XVI of the Act, 
mandatory minimum supplementary payments beginning in January 1974 in an 
amount determined in accordance with Sec. 416.2050 in order to maintain 
their income levels of December 1973. (See Secs. 416.2065 and 416.2070.)
    (d) Supplementary payments for recipients of special SSI cash 
benefits. A State which makes supplementary payments (regardless of 
whether they are mandatory or optional and whether the payments are 
federally administered), has the option of making those payments to 
individuals who receive cash benefits under section 1619(a) of the Act 
(see Sec. 416.261), or who would be eligible to receive cash benefits 
except for their income.

[40 FR 7640, Feb. 21, 1975, as amended at 43 FR 48995, Oct. 20, 1978; 45 
FR 54748, July 18, 1980; 47 FR 15326, Apr. 9, 1982]



Sec. 416.2005  Administration agreements with SSA.

    (a) Agreement-mandatory only. Subject to the provisions of paragraph 
(d) of this section, any State having an agreement with the Social 
Security Administration (SSA) under Sec. 416.2001(c) may enter into an 
administration agreement with SSA under which SSA will make the 
mandatory minimum supplementary payments on behalf of such State. An 
agreement under Sec. 416.2001(c) and an administration agreement under 
this paragraph may be consolidated into one agreement.
    (b) Agreement--mandatory and optional payments. Subject to the 
provisions of paragraph (d) of this section, any State may enter into an 
agreement with SSA under which the State will provide both mandatory and 
optional State supplementary payments and elect Federal administration 
of such State supplementary payment programs. If SSA agrees to 
administer such State's optional supplementary payments, the State must 
also have SSA administer its mandatory minimum supplementary payments 
unless the State is able to provide sufficient justification for 
exemption from this requirement.
    (c) Administration--combination. Any State may enter into an 
agreement with SSA under which the State will provide mandatory minimum 
supplementary payments and elect Federal administration of such payments 
while providing optional State supplementary payments which it shall 
administer itself. If the State chooses to administer such payment 
itself, it may establish its own criteria for determining eligibility 
requirements as well as the amounts.

[[Page 937]]

    (d) Conditions of administration agreement. The State and SSA may, 
subject to the provisions of this subpart, enter into a written 
agreement, in such form and containing such provisions not inconsistent 
with this part as are found necessary by SSA, under which SSA will 
administer the State supplementary payments on behalf of a State (or 
political subdivision). Under such an agreement between SSA and a State, 
specific Federal and State responsibilities for administration and 
fiscal responsibilities will be stipulated. The regulations in effect 
for the supplemental security income program shall be applicable in the 
Federal administration of State supplementary payments except as may 
otherwise be provided in this subpart as found by SSA to be necessary 
for the effective and efficient administration of both the basic Federal 
benefit and the State supplementary payment. If the State elects options 
available under this subpart (specified in Secs. 416.2015-416.2035), 
such options must be specified in the administration agreement.

[40 FR 7640, Feb. 21, 1975, as amended at 62 FR 312, Jan. 3, 1997]



Sec. 416.2010  Essentials of the administration agreements.

    (a) Payments. Any agreement between SSA and a State made pursuant to 
Sec. 416.2005 must provide that, if for optional supplementation, such 
State supplementary payments are made to all individuals and/or couples 
who are:
    (1) Receiving (or at the option of the State would, but for the 
amount of their income, be eligible to receive) supplemental security 
income benefits under title XVI of the Social Security Act, and
    (2) Within the variations and categories (as defined in 
Sec. 416.2030) for which the State (or political subdivision) wishes to 
provide a supplementary payment, and
    (3) Residing, subject to the provisions of Sec. 416.2035(a), in such 
State (or political subdivision thereof).
    (b) Administrative costs. (1) SSA shall assess each State that had 
elected Federal administration of optional and/or mandatory State 
supplementary payments an administration fee for administering those 
payments. The administration fee is assessed and paid monthly and is 
derived by multiplying the number of State supplementary payments made 
by SSA on behalf of a State for any month in a fiscal year by the 
applicable dollar rate for the fiscal year. The number of supplementary 
payments made by SSA in a month is the total number of checks issued, 
and direct deposits made, to recipients in that month, that are composed 
in whole or in part of State supplementary funds. The dollar rates are 
as follows:
    (i) For fiscal year 1994, $1.67;
    (ii) For fiscal year 1995, $3.33;
    (iii) For fiscal year 1996, $5.00; and
    (iv) For fiscal year 1997 and each succeeding fiscal year, $5.00, or 
such different rate as determined by SSA to be appropriate for any 
particular State, taking into account the complexity of administering 
the State's supplementary payment program.
    (2) SSA shall charge a State an additional services fee if, at the 
request of the State, SSA agrees to provide the State with additional 
services beyond the level customarily provided in the administration of 
State supplementary payments. The additional services fee shall be in an 
amount that SSA determines is necessary to cover all costs, including 
indirect costs, incurred by the Federal Government in furnishing the 
additional services. SSA is not required to perform any additional 
services requested by a State and may, at its sole discretion, refuse to 
perform those additional services. An additional services fee charged a 
State may be a one-time charge or, if the furnished services result in 
ongoing costs to the Federal Government, a monthly or less frequent 
charge to the State for providing such services.
    (c) Agreement period. The agreement period for a State which has 
elected Federal administration of its supplementary payments will extend 
for one year from the date the agreement was signed unless otherwise 
designated. The agreement will be automatically renewed for a period of 
one year unless either the State or SSA gives written notice not to 
renew, at least 90 days before the beginning of the new period.

[[Page 938]]

For a State to elect Federal administration, it must notify SSA of its 
intent to enter into an agreement, furnishing the necessary payment 
specifications, at least 120 days before the first day of the month for 
which it wishes Federal administration to begin, and have executed such 
agreement at least 30 days before such day.
    (d) Modification or termination. The agreement may be modified at 
any time by mutual consent. The State or SSA may terminate the agreement 
upon 90 days written notice to the other party, provided the effective 
date of the termination is the last day of a quarter. However, the State 
may terminate the agreement upon 45 days written notice to SSA where: 
(1) The State does not wish to comply with a regulation promulgated by 
SSA subsequent to the execution of the agreement; and (2) the State 
provides such written notice within 30 days of the effective date of the 
regulation. The Secretary is not precluded from terminating the 
agreement in less than 90 days where he finds that a State has failed to 
materially comply with the provisions of paragraph (f) of this section 
or Sec. 416.2090.
    (e) Mandatory minimum State supplementation. Any administration 
agreement between SSA and a State under which SSA will make such State's 
mandatory minimum State supplementary payments shall provide that the 
State will:
    (1) Certify income and payment amount. Certify to SSA the names of 
each individual who, for December 1973 was eligible for and a recipient 
of aid or assistance in the form of money payments under a plan of such 
State approved under title I, X, XIV, or XVI of the Act (Sec. 416.121), 
together with the amount of such aid or assistance payable to each such 
individual and the amount of such individual's other income (as defined 
in Sec. 416.2050(b)(2)), and
    (2) Additional data. Provide SSA with such additional data at such 
times as SSA may reasonably require in order to properly, economically, 
and efficiently carry out such administration agreement. This shall 
include required information on changes in countable income as well as 
changes in special needs and circumstances that would result in a 
decrease in the mandatory income level being maintained by the State, 
unless the State has specified in the agreement that the minimum income 
level shall not be lowered by such changes.

[40 FR 7640, Feb. 21, 1975, as amended at 62 FR 313, Jan. 3, 1997]



Sec. 416.2015  Establishing eligibility.

    (a) Applications. Any person who meets the application requirements 
of subpart C of this part is deemed to have filed an application for any 
federally administered State supplementation for which he may be 
eligible unless supplementation has been waived pursuant to 
Sec. 416.2047. However, a supplemental statement will be required where 
additional information is necessary to establish eligibility or to 
determine the correct payment amount.
    (b) Evidentiary requirements. The evidentiary requirements and 
developmental procedures of this part are applicable with respect to 
federally administered State supplementary payments.
    (c) Determination. Where not inconsistent with the provisions of 
this subpart, eligibility for and the amount of the State supplementary 
payment will be determined pursuant to the provisions of subparts A 
through Q of this part.
    (d) Categories; aged, blind, disabled. An applicant will be deemed 
to have filed for the State supplementary payment amount provided for 
the category under which his application for a Federal supplemental 
security income benefit is filed. As in the Federal supplemental 
security income program, an individual who establishes eligibility as a 
blind or disabled individual, and continually remains on the rolls, will 
continue to be considered blind or disabled after he attains age 65.
    (e) Concurrent categories. (1) In States where the supplementary 
payment provided for the aged category is higher than for the blind or 
disabled category aged individuals will be paid the State supplement on 
the basis of age.
    (2) If the administration agreement pursuant to Sec. 416.2005(b) 
provides for higher supplementary payments to the

[[Page 939]]

blind or disabled than to the aged category, then, at the option of the 
State, the agreement may provide that individuals who are age 65 or over 
at time of application and who are blind or disabled may elect to 
receive such higher supplementary payments.



Sec. 416.2020  Federally administered supplementary payments.

    (a) Payment procedures. A federally administered State supplementary 
payment will be made on a monthly basis and will be included in the same 
check as a Federal benefit that is payable. A State supplementary 
payment shall be for the same month as the Federal benefit.
    (b) Maximum amount. There is no restriction on the amount of a State 
supplementary payment that the Federal Government will administer on 
behalf of a State.
    (c) Minimum amount. The Federal Government will not administer 
optional State supplementary payments in amounts less than $1 per month. 
Hence, optional supplementary payment amounts of less than $1 will be 
raised to a dollar.
    (d) Optional supplementation: nine categories possible. A State may 
elect Federal administration of its supplementary payments for up to 
nine categories, depending on the assistance titles in effect in that 
State in January 1972 (i.e., title I, X, XIV, or XVI). It can have no 
more than two categories (one for individuals and one for couples) for 
each title in effect for January 1972:
    (1) Since a State with a title XVI program had just the one title in 
effect, it can supplement only to two categories, the individual (aged, 
blind, or disabled), the couple (both of whom are aged, blind, or 
disabled).
    (2) Other States could supplement up to nine categories, depending 
on the plans they had in effect. Six of these categories would be for:
    (i) Aged Individual,
    (ii) Aged Couple,
    (iii) Blind Individual,
    (iv) Blind Couple,
    (v) Disabled Individual,
    (vi) Disabled Couple.
    (3) In addition to those enumerated in paragraph (d)(2) of this 
section, there are three additional couple categories for which a State 
may elect to provide a federally administered supplement. These 
categories are created when one individual in the couple is:
    (i) Aged and the other blind, or
    (ii) Aged and the other disabled, or
    (iii) Blind and the other disabled.

[40 FR 7640, Feb. 21, 1975, as amended at 50 FR 48579, Nov. 26, 1985]



Sec. 416.2025  Optional supplementation: Countable income.

    (a) Earned and unearned income. No less than the amounts of earned 
or unearned income which were excluded in determining eligibility for or 
amount of a title XVI supplemental security income benefit must be 
excludable by a State in the Federal-State agreement for purposes of 
determining eligibility for or amount of the State supplementary 
payment.
    (b) Effect of countable income on payment amounts. Countable income 
of an eligible individual or eligible couple is determined in the same 
manner as such income is determined under the title XVI supplemental 
security income program. Countable income will affect the amount of the 
State supplementary payments as follows:
    (1) As provided in Sec. 416.420, countable income will first be 
deducted from the Federal benefit rate applicable to an eligible 
individual or eligible couple. In the case of an eligible individual 
living with an ineligible spouse with income (the deeming provisions of 
Sec. 416.1163 apply), the Federal benefit rate from which countable 
income will be deducted is the Federal benefit rate applicable to an 
eligible couple, except that an eligible individual's payment amount may 
not exceed the amount he or she would have received if he or she were 
not subject to the deeming provisions (Sec. 416.1163(e)(2)).
    (2) If countable income is equal to or less than the amount of the 
Federal benefit rate, the full amount of the State supplementary payment 
as specified in the Federal agreement will be made.
    (3) If countable income exceeds the amount of the Federal benefit 
rate, the State supplementary benefit will be reduced by the amount of 
such excess. In the case of an eligible individual living with an 
ineligible spouse with income

[[Page 940]]

(the deeming methodology of Sec. 416.1163 applies), the State 
supplementary payment rate from which the excess income will be deducted 
is the higher of the State supplementary rates for an eligible couple or 
an eligible individual, except that an eligible individual's payment 
amount may not exceed the amount he or she would have received if he or 
she were not subject to the deeming provisions (see 
Sec. 416.1163(e)(2)). For purposes of determining the State 
supplementary couple rate, the ineligible spouse is considered to be in 
the same category as the eligible individual.
    (4) No State supplementary payment will be made where countable 
income is equal to or exceeds the sum of the Federal benefit rate and 
the State supplementary payment rate.
    (c) Effect of additional income exclusions on payment amounts. A 
State has the option of excluding amounts of earned and unearned income 
in addition to the amounts it is required to exclude under paragraph (a) 
of this section in determining a person's eligibility for State 
supplementary payments. Such additional income exclusions affect the 
amount of the State supplementary payments as follows:
    (1) Countable income (as determined under the Federal eligibility 
rules) will first be deducted from the Federal benefit rate applicable 
to an eligible individual or eligible couple.
    (2) Such countable income is then reduced by the amount of the 
additional income exclusion specified by the State.
    (3) If the remaining countable income is equal to or less than the 
amount of the Federal benefit rate, the full amount of the State 
supplementary payment will be made.
    (4) If the remaining countable income exceeds the amount of the 
Federal benefit rate, the State supplementary payment will be reduced by 
the amount of such excess.

(Secs. 1102, 1614(f), 1616(a), 1631, Social Security Act, as amended, 49 
Stat. 647, as amended, 86 Stat. 1473, 1474(a), and 1475 (42 U.S.C. 1302, 
1382c(f), 1382e(a), 1383))

[40 FR 7640, Feb. 21, 1975, as amended at 43 FR 39570, Sept. 6, 1978; 53 
FR 25151, July 5, 1988]



Sec. 416.2030  Optional supplementation: Variations in payments.

    (a) Payment level. The level of State supplementary payments may 
vary for each category the State elects to include in its federally 
administered supplement. These categorical variations of payment levels 
must be specified in the agreement between the Secretary and the State. 
If any State has in effect for July 1974 an agreement which provides for 
variations in addition to those specified in this section, the State 
may, at its option, continue such variations but only for periods ending 
before July 1, 1976.
    (1) Geographical variations. A State may elect to include two 
different geographical variations. A third may be elected if adequate 
justification, e.g., substantial differences in living costs, can be 
demonstrated. All such variations must be readily identifiable by county 
or ZIP code or other readily identifiable factor.
    (2) Living arrangements. In addition, a State may elect up to six 
variations in recognition of the different needs which result from 
various living arrangements. If a State elects six payment level 
variations based on differences in living arrangements, one of these six 
variations must apply only to individuals in Medicaid facilities, that 
is, facilities receiving title XIX payments with respect to such persons 
for the cost of their care (see Sec. 416.211(b)(1)). In any event, 
States are limited to one payment level variation for residents of 
Medicaid facilities. Types of other living arrangements for which 
payment variations may be allowed include arrangements such as:
    (i) Living alone;
    (ii) Living with an ineligible spouse;
    (iii) Personal care facility; or,
    (iv) Domiciliary or congregate care facility.
    (b) Relationship to actual cost differences. Under the agreement, 
variations in State supplementary payment levels will be permitted for 
each living arrangement the State elects. These differences must be 
based on rational distinctions between both the types of living 
arrangements and the costs of those arrangements.
    (c) Effective month of State supplementary payment category. The 
State

[[Page 941]]

supplementary payment category which applies in the current month will 
be used to determine the State payment level in that month. This rule 
applies even if the countable income in a prior month is used to 
determine the amount of State supplementary payment.

[40 FR 7640, Feb. 21, 1975, as amended at 50 FR 48579, Nov. 26, 1985; 56 
FR 41455, Aug. 21, 1991]



Sec. 416.2035  Optional supplementation: Additional State options.

    (a) Residency requirement. A State or political subdivision may 
impose, as a condition of eligibility, a residency requirement which 
excludes from eligibility for State supplementary payment any individual 
who has resided in such State (or political subdivision thereof) for 
less than a minimum period prescribed by the State. Any such residency 
requirement will be specified in the agreement.
    (b) Lien and relative responsibility. A State which elects Federal 
administration of its supplementary payments may place a lien upon 
property of an individual as a consequence of the receipt of such 
payments or may require that a relative of the individual contribute to 
a reasonable extent to the support of the individual, providing it is 
stated in the agreement that:
    (1) The Secretary has determined that the specific State laws and 
their enforcement are consistent with the supplemental security income 
program purpose of providing unencumbered cash payments to recipients; 
and
    (2) The Federal Government is not involved in the administration of 
such laws and will not vary the State supplementary payment amount it 
makes to comply with such laws; and
    (3) Neither the basic Federal benefit nor any part of the State 
supplementary payment financed by Federal funds will be subject to the 
liens or encumbrances of such laws.



Sec. 416.2040  Limitations on eligibility.

    Notwithstanding any other provision of this subpart, the eligibility 
of an individual (or couple) for optional State supplementary payments 
administered by the Federal Government in accordance with this subpart 
shall be limited as follows:
    (a) Inmate of public institution. A person who is a resident in a 
public institution for a month, is ineligible for a Federal benefit for 
that month under the provision of Sec. 416.211(a), and does not meet the 
requirements for any of the exceptions in Sec. 416.211 (b), (c), or (d), 
or Sec. 416.212, also shall be ineligible for a federally administered 
State supplementary payment for that month.
    (b) Ineligible persons. No person who is ineligible for a Federal 
benefit for any month under sections 1611(e)(1)(A), (2), (3), or (f) of 
the Act (failure to file; refuses treatment for drug addiction or 
alcoholism; outside the United States) or section 1615 of the Act 
(refuses vocational rehabilitation) or other reasons (other than the 
amount of income) shall be eligible for such State supplementation for 
such month.
    (c) Recipient eligible for benefits under Sec. 416.212. A recipient 
who is institutionalized and is eligible for either benefit payable 
under Sec. 416.212 for a month or months may also receive federally 
administered State supplementation for that month. Additionally, a 
recipient who would be eligible for benefits under Sec. 416.212 but for 
countable income which reduces his or her Federal SSI benefit to zero, 
may still be eligible to receive federally administered State 
supplementation.

[40 FR 7640, Feb. 21, 1975, as amended at 56 FR 41455, Aug. 21, 1991; 61 
FR 10280, Mar. 13, 1996]



Sec. 416.2045  Overpayments and underpayments; federally administered supplementation.

    (a) Overpayments. Upon determination that an overpayment has been 
made, adjustments will be made against future federally administered 
State supplementary payments for which the person is entitled. Rules and 
requirements (see Secs. 416.550 through 416.572) in effect for recovery 
(or waiver) of supplemental security income benefit overpayments shall 
also apply to the recovery (or waiver) of federally administered State 
supplementary overpaid amounts. If the overpaid person's entitlement to 
the State supplementary payments is terminated prior to recoupment of 
the overpaid State

[[Page 942]]

supplementary payment amount, and the overpayment cannot be recovered 
from a Federal benefit payable under this part, the person's record will 
be annotated (specifying the amount of the overpayment) to permit 
recoupment if the person becomes reentitled to supplementary payments of 
such State or to a Federal benefit under this part.
    (b) Underpayments. Upon determination that an underpayment of State 
supplementary payments is due and payable, the underpaid amount shall be 
paid to the underpaid claimant directly, or his representative. If the 
underpaid person dies before receiving the underpaid amount of State 
supplementary payment the underpaid amount shall be paid to the 
claimant's eligible spouse. If the deceased claimant has no eligible 
spouse, no payment of the underpaid amount shall be made. (See 
Secs. 416.538 through 416.543.)



Sec. 416.2047  Waiver of State supplementary payments.

    (a) Waiver request in writing. Any person who is eligible to receive 
State supplementary payments or who would be eligible to receive such 
State supplementary payments may waive his right to receive such 
payments if such person makes a written request for waiver of State 
supplementary payments. Any such request made at time of application for 
the Federal benefit shall be effective immediately. Any such request 
filed after the application is filed shall be effective the month the 
request is received in a social security office, or earlier if the 
recipient refunds to the Social Security Administration the amount of 
any supplementary payment(s) made to him for the subject period.
    (b) Revocation of waiver. Any individual who has waived State 
supplementary payments may revoke such waiver at any time by making a 
written request to any social security office. The revocation will be 
effective the month in which it is filed. The date such request is 
received in a social security office or the postmarked date, if the 
written request was mailed, will be the filing date, whichever is 
earlier.



Sec. 416.2050  Mandatory minimum State supplementation.

    (a) Determining the amount. The amount of a mandatory State 
supplementary payment in the case of any eligible individual or couple 
for any month is equal to:
    (1) The amount by which such individual or couple's December 1973 
income (as defined in paragraph (b) of this section) exceeds the amount 
of such individual or couple's title XVI benefit plus other income which 
would have been used by such State in computing the assistance payable 
under the State's approved plan for such month; or
    (2) Such greater amount as the State may specify.
    (b) December 1973 income. ``December 1973 income'' means an amount 
equal to the aggregate of:
    (1) Money payments. The amount of the aid or assistance in the form 
of money payments (as defined in 45 CFR 234.11(a)) which an individual 
would have received (including any part of such amount which is 
attributable to meeting special needs or special circumstances) under a 
State plan approved under title I, X, XIV, or XVI of the Act in 
accordance with the terms and conditions of such plan relating to 
eligibility for and amount of such aid or assistance payable thereunder 
which were in effect for the month of June 1973 together with the bonus 
value of food stamps for January 1972 if for such month such individual 
resides in a State which SSA has determined provides supplementary 
payments the level of which has been found by SSA pursuant to section 8 
of Pub. L. 93-233 (87 Stat. 956) to have been specifically increased so 
as to include the bonus value of food stamps, and
    (2) Income. The amount of the income of such individual other than 
aid or assistance, received by such individual in December 1973, 
remaining after application of all appropriate income exclusions and 
used in computation of the amount of aid or assistance, minus any such 
income which did not result, but which if properly reported, would have 
resulted in a reduction in the amount of such aid or assistance. Income, 
which because a State paid less than 100% of its standard of need, did 
not

[[Page 943]]

cause a reduction in the amount of aid or assistance is included.
    (c) Special needs or circumstances. Special needs or circumstances 
include needs of essential persons (as defined in Sec. 416.222), special 
allowances for housing, and such other situations for which money 
payments to or for an eligible individual were made under a State plan 
approved under title I, X, XIV, or XVI of the Act as in effect for June 
1973.
    (d) Optional supplement payable. A recipient meeting the 
requirements of paragraph (a) of this section who would otherwise 
qualify for a payment under a State's program of optional State 
supplementation (provided for by Sec. 416.2010) which is greater than 
the amount required by paragraph (a) of this section, shall be paid such 
greater amount.

[40 FR 7640, Feb. 21, 1975, as amended at 51 FR 10616, Mar. 14, 1986; 62 
FR 313, Jan. 3, 1997]



Sec. 416.2055  Mandatory minimum supplementation reduced.

    If for any month after December 1973 there is a change with respect 
to any special need or special circumstance which, if such change had 
existed in December 1973, would have caused a reduction in the amount of 
such individual's aid or assistance payment, then, for such month and 
for each month thereafter, the amount of the mandatory minimum 
supplement payable to such individual may, at the option of the State, 
be reduced in accordance with the terms and conditions of the State's 
plan approved under title I, X, XIV, or XVI of the Act in effect for the 
month of June 1973.



Sec. 416.2060  Mandatory minimum supplementary payments not applicable.

    An individual eligible for mandatory minimum supplementary payments 
from a State beginning in January 1974 shall not be eligible for such 
payments:
    (a) Month after the month of death. Beginning with the month after 
the month in which the individual dies; or
    (b) Not aged, blind, or disabled. Beginning with the first month 
after the month in which such individual ceases to be an aged, blind, or 
disabled individual (as defined in Sec. 416.202); or
    (c) Not entitled to a Federal payment. During any month in which 
such individual was ineligible to receive supplemental income benefits 
under title XVI of the Social Security Act by reason of the provisions 
of section 1611(e)(1)(A), (2) or (3), 1611(f), or 1615(c) of such Act; 
or
    (d) Month of change in residence. During any full month such 
individual is not a resident of such State.



Sec. 416.2065  Mandatory minimum State supplementation: Agreement deemed.

    A State shall be deemed to have entered into an agreement with the 
Secretary under which such State shall provide mandatory minimum 
supplementary payments if such State has entered into an agreement with 
the Secretary under section 1616 of the Act under which:
    (a) Other eligible individuals. Supplementary payments are made to 
individuals other than those aged, blind, and disabled individuals who 
were eligible to receive aid or assistance in the form of money payments 
for the month of December 1973 under a State plan approved under title 
I, X, XIV, or XVI of the Act, under terms and conditions of such plan in 
effect for June 1973, and
    (b) Minimum requirements. Supplementary payments which meet the 
mandatory minimum requirements of this subpart are payable to all aged, 
blind, or disabled individuals who were eligible to receive aid or 
assistance in the form of money payments for the month of December 1973 
under a State plan approved under title I, X, XIV, or XVI of the Act, 
under terms and conditions of such plan in effect for June 1973.



Sec. 416.2070  Mandatory supplementation: State compliance not applicable.

    The requirement that a State must have in effect an agreement with 
the Secretary whereby such State shall provide individual aged, blind, 
and disabled recipients residing in the State mandatory minimum 
supplementary payments beginning in January 1974 shall not be applicable 
in the case of any State where:

[[Page 944]]

    (a) State constitution. The State constitution limits expenditures 
that may be paid as public assistance to, or on behalf of, any needy 
person to an amount that does not exceed the amount of State public 
assistance payments that are matched by Federal funds under title I, IV, 
X, XIV, XVI or XIX of the Social Security Act making it impossible for 
such State to enter into and commence carrying out (on January 1, 1974) 
such agreement with the Secretary, and
    (b) Attorney General decision. The Attorney General (or other 
appropriate State official) has, prior to July 1, 1973, made a finding 
that the State constitution of such State contains limitations which 
prevent such State from making supplementary payments of the type 
described in section 1616 of the Act.



Sec. 416.2075  Monitoring of mandatory minimum supplementary payments.

    (a) Access to records. Any State entering into an agreement with the 
Secretary whereby such State will provide mandatory minimum 
supplementary payments in accordance with Sec. 416.2001(c) shall agree 
that the Secretary shall have access to and the right to examine any 
directly pertinent books, documents, papers, and records of the State 
involving transactions related to this agreement.
    (b) Additional data. Any State entering into an agreement in 
accordance with Sec. 416.2005 shall provide the Secretary with such 
additional data at such times as the Secretary may reasonably require in 
order to properly, economically, and efficiently be assessed of such 
State's compliance with such State agreements.



Sec. 416.2090  State funds transferred for supplementary payments.

    (a) Payment transfer and adjustment. (1) Any State which has entered 
into an agreement with SSA which provides for Federal administration of 
such State's supplementary payments shall transfer to SSA:
    (i) An amount of funds equal to SSA's estimate of State 
supplementary payments for any month which shall be made by SSA on 
behalf of such State; and
    (ii) An amount of funds equal to SSA's estimate of administration 
fees for any such month determined in the manner described in 
Sec. 416.2010(b)(1); and
    (iii) If applicable, an amount of funds equal to SSA's determination 
of the costs incurred by the Federal government in furnishing additional 
services for the State as described in Sec. 416.2010(b)(2).
    (2) In order for SSA to make State supplementary payments on behalf 
of a State for any month as provided by the agreement, the estimated 
amount of State funds referred to in paragraph (a)(1)(i) of this 
section, necessary to make those payments for the month, together with 
the estimated amount of administration fees referred to in paragraph 
(a)(1)(ii) of this section, for that month, must be on deposit with SSA 
on the State supplementary payment transfer date, which is the fifth 
Federal business day following the day in the month that the regularly 
recurring monthly supplemental security income payments are issued. The 
additional services fee referred to in paragraph (a)(1)(iii) of this 
section shall be on deposit with SSA on the date specified by SSA. The 
amount of State funds paid to SSA for State supplementary payments and 
the amount paid for administration fees will be adjusted as necessary to 
maintain the balance with State supplementary payments paid out by SSA 
on behalf of the State, and administration fees owed to SSA, 
respectively.
    (b) Accounting of State funds. (1) As soon as feasible, after the 
end of each calendar month, SSA will provide the State with a statement 
showing, cumulatively, the total amounts paid by SSA on behalf of the 
State during the current Federal fiscal year; the fees charged by SSA to 
administer such supplementary payments; any additional services fees 
charged the State; the State's total liability therefore; and the end-
of-month balance of the State's cash on deposit with SSA.
    (2) SSA shall provide an accounting of State funds received as State 
supplementary payments, administration fees, and additional services 
fees, within three calendar months following the termination of an 
agreement under Sec. 416.2005.

[[Page 945]]

    (3) Adjustments will be made because of State funds due and payable 
or amounts of State funds recovered for calendar months for which the 
agreement was in effect. Interest will be incurred by SSA and the States 
with respect to the adjustment and accounting of State supplementary 
payments funds in accordance with applicable laws and regulations of the 
United States Department of the Treasury.
    (c) State audit. Any State entering into an agreement with SSA which 
provides for Federal administration of the State's supplementary 
payments has the right to an audit (at State expense) of the payments 
made by SSA on behalf of such State. The Secretary and the State shall 
mutually agree upon a satisfactory audit arrangement to verify that 
supplementary payments paid by SSA on behalf of the State were made in 
accordance with the terms of the administration agreement under 
Sec. 416.2005. Resolution of audit findings shall be made in accordance 
with the provisions of the State's agreement with SSA.
    (d) Advance payment and adjustment not applicable. The provisions of 
paragraphs (a) and (b) of this section shall not apply with respect to 
any State supplementary payment for which reimbursement is available 
from the Social and Rehabilitation Service pursuant to the Indochina 
Migration and Refugee Assistance Act of 1975 (Pub. L. 94-23; 89 Stat. 
87), as amended, since such amounts are not considered to be State 
supplementary payments.

[40 FR 7640, Feb. 21, 1975, as amended at 41 FR 36018, Aug. 26, 1976; 62 
FR 313, Jan. 3, 1997]



Sec. 416.2095  Pass-along of Federal benefit increases.

    (a) General. This section and the four sections that follow describe 
the rules for passing along increases in the Federal SSI benefit to 
recipients of State supplementary payments.
    (1) Section 416.2095(b) indicates when the pass-along rules apply to 
State supplementary payments.
    (2) Section 416.2096 describes the basic pass-along rules. The 
States must have an agreement to ``pass-along'' increases in Federal SSI 
benefits. A State passes along an increase when it maintains (rather 
than decreases) the levels of all its supplementary payments after a 
Federal benefit increase has occurred. Generally, a pass-along of the 
increase permits recipients to receive an additional amount in combined 
benefits equal to the Federal benefit increase. Except for the 
supplementary payment level made to residents of Medicaid facilities 
(see Sec. 416.2096(d)), a State can decrease one or more of its payment 
levels if it meets an annual total expenditures test.
    (3) Section 416.2097 explains the required combined supplementary/
SSI payment level.
    (4) Section 416.2098 explains how to compute the March 1983, 
December 1981, and December 1976 supplementary payment levels.
    (5) Section 416.2099 discusses what information a State must provide 
to the Secretary concerning its supplementation programs so that the 
Secretary can determine whether the State is in compliance. That section 
also discusses the basis for findings of noncompliance and what will 
occur if a State is found out of compliance.
    (b) When the pass-along provisions apply. (1) The pass-along 
requirements apply to all States (and the District of Columbia) that 
make supplementary payments on or after June 30, 1977, and wish to 
participate in the Medicaid program.
    (2) The pass-along requirements apply to both optional State 
supplementary payments of the type described in Sec. 416.2001(a) and 
mandatory minimum State supplementary payments as described in 
Sec. 416.2001(c), whether or not these State supplementary payments are 
Federally administered.
    (3) The requirements apply to State supplementary payments both for 
recipients who receive Federal SSI benefits and those who, because of 
countable income, receive only a State supplementary payment.
    (4) The requirements apply to State supplementary payments for 
recipients eligible for a State supplementary payment on or after June 
30, 1977.
    (5) Supplementary payments made by a State include payments made by 
a political subdivision (including Indian tribes) where--

[[Page 946]]

    (i) The payment levels are set by the State; and
    (ii) The payments are funded in whole or in part by the State.

[52 FR 36241, Sept. 28, 1987, as amended at 54 FR 19165, May 4, 1989]



Sec. 416.2096  Basic pass-along rules.

    (a) State agreements to maintain supplementary payment levels. (1) 
In order to be eligible to receive Medicaid reimbursement, any State 
that makes supplementary payments, other than payments to residents of 
Medicaid facilities where Medicaid pays more than 50 percent of the cost 
of their care (see paragraph (d) of this section for definition of 
Medicaid facility and Sec. 416.414 for discussion of the reduced SSI 
benefit amount payable to residents of Medicaid facilities), on or after 
June 30, 1977, must have in effect an agreement with the Secretary. In 
this agreement--
    (i) The State must agree to continue to make the supplementary 
payments;
    (ii) For months from July 1977 through March 1983, the State must 
agree to maintain the supplementary payments at levels at least equal to 
the December 1976 levels (or, if a State first makes supplementary 
payments after December 1976, the levels for the first month the State 
makes supplementary payments). For months in the period July 1, 1982 
through March 31, 1983, a State may elect to maintain the levels 
described in paragraph (b)(2) of this section; and
    (iii) For months after March 1983, the State must agree to maintain 
supplementary payments at least sufficient to maintain the combined 
supplementary/SSI payment levels in effect in March 1983, increased by 
any subsequent SSI benefit increases, except as provided in 
Sec. 416.2097(b) and Sec. 416.2097(c).
    (2) We will find that the State has met the requirements of 
paragraph (a)(1) of this section if the State has the appropriate 
agreement in effect and complies with the conditions in either paragraph 
(b) or (c) of this section. We will consider a State to have made 
supplementary payments on or after June 30, 1977, unless the State 
furnishes us satisfactory evidence to the contrary.
    (b) Meeting the pass-along requirements--supplementary payment 
levels. The provisions of this paragraph do not apply to the 
supplementary payment level for residents of Medicaid facilities (see 
paragraph (d) of this section).
    (1) We will consider a State to have met the requirements for 
maintaining its supplementary payment levels (described in 
Sec. 416.2098) for a particular month or months after March 1983 if the 
combined supplementary/SSI payment levels have not been reduced below 
the levels in effect in March 1983 (or if a State first made 
supplementary payments after March 1983, the combined supplementary/SSI 
payment levels in effect the first month the State made supplementary 
payments), increased by any subsequent Federal SSI benefit increases, 
except as provided in Sec. 416.2097(b) and Sec. 416.2097(c). We will 
consider a State to have met the requirements for maintaining its 
supplementary payment levels for a particular month or months between 
June 1977 and April 1983 if the supplementary payment levels have not 
been reduced below the levels in effect in December 1976 (or if a State 
first made supplementary payments after December 1976, the levels in 
effect the first month the State made supplementary payments, or in 
certain cases described in paragraph (b)(2) of this section, the levels 
in effect in December 1981.)
    (2) We will also consider a State to have met the requirements for 
maintaining its supplementary payment levels for a particular month or 
months in the period July 1, 1982, through March 31, 1983, if the State 
had met the requirements of paragraph (c) of this section for a 
particular month or months in the 12-month period July 1, 1981 through 
June 30, 1982, and, with respect to any month in the period July 1, 1982 
through March 31, 1983, the State maintained the payment levels in 
effect in December 1981.
    (3) If a State reduced any of its supplementary payment levels for a 
month or months within any 12-month period beginning with the effective 
date of a Federal benefit increase, we will consider the State to have 
met the requirement to maintain its supplementary payment levels if--

[[Page 947]]

    (i) Within 12 months after the relevant 12-month period, the State 
restores the levels retroactively; and
    (ii) The State makes a single retroactive benefit payment to each of 
the beneficiaries eligible for the retroactive payment.
    (c) Meeting the passalong requirement--total expenditures. 
Exception-- The provisions of this paragraph do not apply to the 
supplementary payment level for residents of Medicaid facilities (see 
paragraph (d) of this section).
    (1) If a State does not meet the conditions in paragraph (b) of this 
section, we will consider a State to have met the requirement for 
maintaining supplementary payment levels for a particular month or 
months if total State expenditures for supplementary payments in the 12-
month period within which the month or months fall, beginning on the 
effective date of a Federal SSI benefit increase, are at least equal to 
the total State expenditures for supplementary payments in the 12-month 
period immediately before the Federal SSI benefit increase provided that 
the State was in compliance for such preceding 12-month period. The 
combined Federal/State payment level for those persons receiving a 
mandatory minimum State supplementary payment can be no lower than the 
recipient's total income for December 1973 as defined in section 
212(a)(3)(B) of Pub. L. 93-66.
    (2) If total State expenditures in the relevant 12-month period are 
less than the total expenditures in the preceding 12-month period (a 
``shortfall''), we also will consider a State to have met the 
requirement for maintaining supplementary payment levels for the 
relevant 12-month period if in the following 12-month period the State 
increases the total expenditures required for that period by an amount 
at least equal to the amount of the shortfall in the relevant 12-month 
period. The increased amount up to the amount needed to correct the 
shortfall shall be deemed to be an expenditure in the relevant 12-month 
period, for pass-along purposes only. (See paragraph (c)(5) of this 
section.)
    (3)(i) Exception for the 6-month period from July 1, 1983 through 
December 31, 1983: We will consider the State to have met the total-
expenditures requirement for the 6-month period July 1, 1983 through 
December 31, 1983, if--
    (A) Total expenditures for State supplementary payments for the 
period July 1, 1983 through December 31, 1983, equal or exceed the total 
of such expenditures for the period July l, 1982 through December 31, 
1982;
    (B) Total expenditures for State supplementary payments for the 
period January 1, 1983 through December 31, 1983, equal or exceed the 
total of such expenditures for the period January 1, 1982 through 
December 31, 1982; or
    (C) Total expenditures for State supplementary payments for the 
period July 1, 1983 through December 31, 1983 equal or exceed one-half 
of the total of such expenditures for the period July 1, 1982 through 
June 30, 1983. The provisions of paragraphs (c)(4) and (c)(5) of this 
section and of Sec. 416.2099 (b), (c), and (d) shall apply to this 6-
month period in the same manner as they apply to the 12-month periods 
referred to therein.
    (ii) Exception for the 12-month period ending June 30, 1981: If a 
State did not meet the conditions in paragraph (b) of this section, we 
will consider a State to have met the maintenance-of-supplementary-
payment-levels requirement for this 12-month period if the State's 
expenditures for supplementary payments in that period were at least 
equal to its expenditures for such payments for the 12-month period 
ending June 30, 1977 (or, if the State made no supplementary payments in 
that period, the expenditures for the first 12-month period ending June 
30 in which the State made such payments); if a State made additional 
State supplementary payments during the period July 1, 1981 through June 
30, 1982, in order to make up a shortfall in the 12-month period ending 
June 30, 1981 (determined by a comparison with the preceding 12-month 
period) which later resulted in an excess payment (determined by 
comparison with the 12-month period July 1, 1976 through June 30, 1977) 
we will credit the State with the amount of the excess payments if the 
State so requests. This credit will be applied to any shortfall(s) in 
total expenditures (should one exist) in any

[[Page 948]]

period(s) ending on or before December 31, 1986.
    (4) Total State expenditures for supplementary payments are the 
State's total payments for both mandatory minimum and optional State 
supplementary payments in the appropriate 12-month period less any 
amounts deemed to be expenditures for another 12-month period under 
paragraph (c)(2) of this section, less the amount of any payments 
recovered and other adjustments made in that period. Total State 
expenditures do not include State administrative expenses, interim 
assistance payments, vendor payments, or payments made under other 
Federal programs, such as titles IV, XIX, or XX of the Social Security 
Act.
    (5) Adjustments in total State supplementary payments made after the 
expiration of the relevant 12-month period for purposes of meeting total 
State expenditures under paragraph (c) of this section shall be 
considered a State expenditure in the relevant 12-month period only for 
purposes of the pass-along requirement. For purposes of Sec. 416.2080, 
which discusses the rules for limitation on fiscal liability of States 
(hold harmless), these retroactive adjustments are State expenditures 
when made and shall be counted as a State expenditure in the fiscal year 
in which the adjustments are made.
    (d) Payments to residents to Medicaid facilities. A Medicaid 
facility is a medical care facility where Medicaid pays more than 50 
percent of the cost of a person's care. In order to be eligible to 
receive Medicaid reimbursement, any State that has a supplementary 
payment level for residents of Medicaid facilities on or after October 
1, 1987, must have in effect an agreement with the Secretary to maintain 
such supplementary payment level at least equal to the October 1987 
level (or if a State first makes such supplementary payments after 
October 1, 1987, but before July 1, 1988, the level for the first month 
the State makes such supplementary payments).

[52 FR 36241, Sept. 28, 1987, as amended at 54 FR 19165, May 4, 1989; 56 
FR 55453, Oct. 28, 1991]



Sec. 416.2097  Combined supplementary/SSI payment levels.

    (a) Other than the level for residents of Medicaid facilities (see 
paragraph (d) of this section), the combined supplementary/SSI payment 
level for each payment category that must be provided in any month after 
March 1983 (or if a State first made supplementary payments after March 
1983, the combined supplementary SSI payment levels in effect the first 
month the State made supplementary payments) in order for a State to 
meet the requirement of the first sentence of Sec. 416.2096(b) is the 
sum of--
    (1) The SSI Federal benefit rate (FBR) for March 1983 for a 
recipient with no countable income;
    (2) That portion of the July 1983 benefit increase computed in 
accordance with paragraph (b) of this section;
    (3) The full amount of all SSI benefit increases after July 1983; 
and
    (4) The State supplementary payment level for March 1983 as 
determined under Sec. 416.2098.
    (b) The monthly FBR's were increased in July 1983 by $20 for an 
eligible individual and $30 for an eligible couple, and the monthly 
increment for essential persons was increased by $10 in lieu of the 
expected cost-of-living adjustment which was delayed until January 1984. 
However, in computing the required combined supplementary/SSI payment 
levels for the purpose of determining pass-along compliance, we use only 
the amounts by which the FBR's and the essential person increment would 
have increased had there been a cost-of-living adjustment in July 1983 
(a 3.5 percent increase would have occurred). These amounts are $9.70 
for an eligible individual, $14.60 for an eligible couple and $4.50 for 
an essential person.
    (c) For the 24-month period January 1, 1984, through December 31, 
1985, a State will not be found out of compliance with respect to its 
payment levels if in the period January 1, 1986, through December 31, 
1986, its supplementary payment levels are not less than its 
supplementary payment levels in effect in December 1976 increased by the 
percentage by which the FBR has increased after December 1976 and before

[[Page 949]]

February 1986. The FBR for an individual in December 1976 was $167.80. 
The FBR for an individual in effect on January 31, 1986, was $336.00, an 
increase of 100.24 percent over the December 1976 FBR. In order for a 
State to take advantage of this provision for the 24-month period 
January 1, 1984, through December 31, 1985, the State supplementary 
payment levels in effect for calendar year 1986 must be at least 100.24 
percent higher than the State supplementary payment levels in effect in 
December 1976. This provision does not apply to State supplementary 
payments to recipients in Federal living arrangement ``D'' (residents of 
a medical facility where title XIX pays more than 50 percent of the 
costs).
    (d) The combined supplementary/SSI payment level which must be 
maintained for residents of Medicaid facilities is the State supplement 
payable on October 1, 1987, or if no such payments were made on October 
1, 1987, the supplementary payment amount made in the first month that a 
supplementary payment was made after October 1987 but before July 1, 
1988, plus the Federal benefit rate in effect in October 1987 increased 
by $5 for an individual/$10 for a couple effective July 1, 1988.

[52 FR 36242, Sept. 28, 1987, as amended at 54 FR 19165, May 4, 1989; 54 
FR 23018, May 30, 1989]



Sec. 416.2098  Supplementary payment levels.

    (a) General. For the purpose of determining the combined 
supplementary/SSI payment levels described in Sec. 416.2097(a) (i.e., 
the levels that must be provided in any month after March 1983), the 
supplementary payment level, except for the level for residents of 
Medicaid facilities (see Sec. 416.2097(d)), for each payment category 
must be no less than the total State payment for March 1983 for that 
payment category that a State provided an eligible individual (or 
couple) with no countable income in excess of the FBR for March 1983. 
For States that did not make supplementary payments in March 1983, the 
supplementary payment level for each payment category must be no less 
than the total State payment for the first month after March 1983 in 
which a State makes supplementary payments.
    (b) Calculation of the required mandatory minimum State 
supplementary payment level. (1) Except for States described in 
paragraph (b)(2) of this section, the mandatory minimum State 
supplementary payment level for March 1983 is a recipient's December 
1973 income, as defined in section 212(a)(3)(B) of Pub. L. 93-66, plus 
any State increases prior to April 1983, less any reductions made at any 
time after December 1973 due to changes in special needs or 
circumstances, less the March 1983 FBR. The amount determined under the 
previous sentence shall continue for April, May, and June 1983. For July 
1983 and later the amount calculated in the first sentence shall 
continue except that it may be reduced by the amount of the July 1983 
Federal increase that was not related to the cost of living (i.e., 
$10.30), so long as that reduction does not cause the mandatory minimum 
State supplementary level to fall below that required by section 
212(a)(3)(A) of Pub. L. 93-66.
    (2) Section 1618(c) of the Act permitted any State that had 
satisfied the requirements of section 1618 of the Act by the total-
expenditures method for the 12-month period July 1, 1981, through June 
30, 1982, and that elected to change and meet the section 1618 
requirements by the maintenance-of-payment-levels method for the period 
July 1, 1982, through June 30, 1983, to do so by paying benefits at 
levels no lower than the levels of such payments in effect for December 
1981. However, a recipient's December 1981 total income (December 1981 
mandatory minimum State supplement plus the FBR) could not be less than 
the recipient's total income for December 1973 as defined in section 
212(a)(3)(B) of Pub. L. 93-66. For a State that elected the option in 
the preceding two sentences, the mandatory minimum State supplementary 
payment level for March 1983 is a recipient's December 1981 total income 
(but not less than the total income for December 1973 as defined by 
section 212(a)(3)(B) of Pub. L. 93-66) plus any State increases after 
December 1981 and prior to April 1983, less any reductions made at any 
time after December 1981 due to changes in special needs or 
circumstances, less the March 1983

[[Page 950]]

FBR. The amount determined under the previous sentence shall continue 
for April, May, and June 1983. For July 1983 and later, the amount 
calculated under the preceding sentence defining the required March 1983 
mandatory minimum State supplementary payment level would continue 
except that it may be reduced by the amount of the July 1983 Federal 
increase that was not related to the cost of living (i.e., $10.30), so 
long as that reduction does not cause the mandatory minimum State 
supplementary level to fall below that required by section 212(a)(3)(A) 
of Pub. L. 93-66.
    (c) Calculation of the required optional State supplementary payment 
level for flat grant amounts. The optional State supplementary payment 
level for March 1983 for flat grant amounts is the total amount that an 
eligible individual (or couple) with no countable income received for 
March 1983 in excess of the FBR for March 1983. The amount determined 
under the previous sentence shall continue for April, May, and June 
1983. For July 1983 and later the amount calculated in the first 
sentence shall continue except that it may be reduced by the amount of 
the July 1983 Federal increase that was not related to the cost of 
living (i.e., $10.30). If the State varied its payment levels for 
different groups of recipients (e.g., paid recipients different amounts 
based on eligibility categories, geographic areas, living arrangements, 
or marital status), each variation represents a separate supplementary 
payment level.
    (d) Calculation of the required optional State supplementary payment 
level for individually budgeted grant amounts. The optional State 
supplementary payment level for individually budgeted grant amounts for 
March 1983 is the amount that the State budgeted for March 1983 in 
excess of the March 1983 FBR for an eligible individual (or couple) 
having the same needs and no countable income. The amount determined 
under the previous sentence shall continue for April, May, and June 
1983. For July 1983 and later the amount calculated in the first 
sentence shall continue except that it may be reduced by the amount of 
the July 1983 Federal increase that was not related to the cost of 
living (i.e., $10.30).
    (e) Optional State supplementary payment level for per diem based 
grant amounts. (1) The optional State supplementary payment level for 
March 1983 for per diem grant amounts is the total dollar amount that 
the State paid to an eligible individual (or couple) with no countable 
income at rates in effect for March 1983 (number of days in the calendar 
month multiplied by the March 1983 per diem rate plus any March 1983 
personal needs allowance) in excess of the March 1983 FBR.
    Example:    

March 1983:                                                             
$15.40.....  Per diem rate.                                             
 x 31......  Days in month.                                             
------------                                                            
477.40.....                                                             
                                                                        
477.40.....                                                             
+42.00.....  Personal needs allowance.                                  
------------                                                            
519.40.....                                                             
                                                                        
519.40.....  Combined State supplementary/SSI payment.                  
-284.30....  March 1983 FBR.                                            
------------                                                            
235.10.....  State supplementary payment level.                         
                                                                        

    (2) The optional State supplementary payment level for months 
subsequent to March 1983 for per diem grant amounts is the total dollar 
amount that the State paid to an individual (or couple) with no 
countable income at rates in effect in March 1983 (number of days in the 
calendar month multiplied by the March 1983 per diem rate plus any March 
1983 personal needs allowance) in excess of the March 1983 FBR for an 
individual (or couple) with no countable income increased by all FBR 
increases subsequent to March 1983 with the exception of the July 1, 
1983 increase. For the July 1, 1983 increase to the FBR, a State need 
pass-along only that portion of the increase which represented the 
increase in the cost of living adjustment (3.5 percent).
    Example:    

    Note.--Example assumes the State passed along only $9.70 of the 
$20.00 increase in the FBR effective July 1, 1983.

    The March 1983 combined supplementary/SSI payment level for a 31-day 
month was $519.40.

July 1983                                                               
 level:                                                                 
$519.40..  March 1983 combined payment.                                 
+9.70....  July 1983 COLA-equivalent.                                   
----------                                                              
529.10...  Required July 1983 combined payment level.                   

[[Page 951]]

                                                                        
529.10...  Required July 1983 combined payment level.                   
-304.30..  July 1983 FBR.                                               
----------                                                              
224.80...  Required State Supplementary payment level.                  
529.10...  Required July 1983 combined payment level.                   
-42.00...  Personal needs allowance.                                    
----------                                                              
487.10...                                                               
487.10...                                                               
+31......  Days in month.                                               
----------                                                              
15.71....  Per diem rate.                                               
                                                                        

    The required July 1983 combined supplementary/SSI payment level for 
a 31-day month was $529.10. This amount is equal to the March 1983 
combined payment amount for a 31-day month plus the July 1983 COLA-
equivalent ($519.40+$9.70).
    (f) Required Optional State supplementary payment level for months 
prior to April 1983. In determining pass-along compliance under the 
maintenance-of-payment-levels test for months from July 1977 through 
March 1983, we used December 1976 (or December 1981 under the 
circumstances described in paragraph (g) of this section) as the 
standard month for determining the required State supplementary payment 
level. To determine the December 1976 State supplementary payment levels 
for categories described in paragraphs (a) through (e) of this section 
substitute ``December 1976'' for ``March 1983'' and ``January 1977'' for 
``April 1983'' whenever they appear in these paragraphs only.
    (g) Alternative required Optional State supplementary payment level 
for July 1982 through March 1983. States which were in compliance solely 
under the total-expenditures test for the 12-month period ending June 
30, 1982, had the option of substituting December 1981 for December 1976 
and switching to the maintenance-of-payment-levels test for July 1982 
through March 1983 (see Sec. 416.2096(b)(2)). If this situation applies, 
determine the December 1981 State supplementary payment levels for 
categories described in paragraphs (a) through (e) of this section by 
substituting ``December 1981'' for ``March 1983'' and ``January 1982'' 
for ``April 1983'' whenever they appear in these paragraphs only.

[52 FR 36243, Sept. 28, 1987; 53 FR 4135, Feb. 12, 1988, as amended at 
54 FR 19165, May 4, 1989; 54 FR 23018, May 30, 1989]



Sec. 416.2099  Compliance with pass-along.

    (a) Information regarding compliance. Any State required to enter 
into a pass-along agreement with the Secretary shall provide appropriate 
and timely information to demonstrate to the Secretary's satisfaction 
that the State is meeting the pass-along requirements. The information 
shall include, where relevant--
    (1) The State's December 1976 supplementary payment levels, any 
subsequent supplementary payment levels, and any change in State 
eligibility requirements. If the State made no supplementary payments in 
December 1976, it shall provide such information about the first month 
in which it makes supplementary payments;
    (2) The State's March 1983 supplementary payment levels, any 
subsequent supplementary payment levels, and any changes in State 
eligibility requirements;
    (3) The total State expenditures for supplementary payments in the 
12-month period beginning July 1976 through June 1977, in each 
subsequent 12-month period, and in any other 12-month period beginning 
on the effective date of a Federal SSI benefit increase. The State shall 
also submit advance estimates of its total supplementary payments in 
each 12-month period covered by the agreement;
    (4) The total State expenditures for supplementary payments in the 
6-month periods July 1, 1982 through December 31, 1982 and July 1, 1983 
through December 31, 1983; and
    (5) The State supplementary payment level payable to residents of 
Medicaid facilities (see Sec. 416.2096(d)) on October 1, 1987 (or, if a 
State first makes such supplementary payments after October 1, 1987, but 
before July 1, 1988, the level for the month the State first makes such 
supplementary payments). The State shall also report all changes in such 
payment levels.
    (b) Records. Except where the Secretary administers the State 
supplementary payments, the State shall maintain records about its 
supplementary payment levels and total 12-month (or 6-month where 
applicable) expenditures for supplementary payments and permit 
inspection and audit

[[Page 952]]

by the Secretary or someone designated by the Secretary.
    (c) Noncompliance by the States. Any State that makes supplementary 
payments on or after June 30, 1977, and does not have a pass-along 
agreement with the Secretary in effect, shall be determined by the 
Secretary to be ineligible for payments under title XIX of the Act. A 
State does not have an agreement in effect if it has not entered into an 
agreement or has not complied with the terms of the agreement. 
Ineligibility shall apply to total expenditures for any calendar quarter 
beginning after June 30, 1977, for which a State has not entered into an 
agreement. A State that enters into an agreement but does not maintain 
its payment levels or meet the total-expenditures test in a particular 
12-month or transitional 6-month period, shall be determined by the 
Secretary not to have an agreement in effect for any month that the 
State did not meet the pass-along requirements during that particular 
period. The State shall then be ineligible for title XIX payments for 
any calendar quarter containing a month for which an agreement was not 
in effect. If a State first makes supplementary payments beginning with 
a month after June 1977, ineligibility shall apply to any calendar 
quarter beginning after the calendar quarter in which the State first 
makes payments.
    (d) Notices to States about potential noncompliance. Within 90 days 
after the end of the relevant 12-month period, the Secretary shall send 
a notice to any State that has not maintained its supplementary payment 
levels and that appears not to have maintained its total expenditures 
during the period. The notice will advise the State of the available 
methods of compliance and the time within which corrective action must 
be taken (see Secs. 416.2096(b)(3) and 416.2096(c)(2)) in order to avoid 
a determination of noncompliance. If the State fails to take the 
corrective action, the Secretary shall make a timely determination of 
noncompliance.

(Approved by the Office of Management and Budget under control number 
0960-0240)


[52 FR 36244, Sept. 28, 1987, as amended at 54 FR 19165, May 4, 1989]



             Subpart U--Medicaid Eligibility Determinations

    Authority:  Secs. 702(a)(5), 1106, 1631(d)(1), and 1634 of the 
Social Security Act (42 U.S.C. 902(a)(5), 1306, 1383(d)(1), and 1383c).

    Source:  53 FR 12941, Apr. 20, 1988, unless otherwise noted.



Sec. 416.2101  Introduction.

    (a) What is in this subpart. This subpart describes the agreements 
we make with States under which we determine the Medicaid eligibility of 
individuals who receive Supplemental Security Income (SSI) benefits. It 
includes a general description of the services we will provide under 
these agreements and the costs to the States for the services.
    (b) Related regulations. The comprehensive regulations on 
eligibility for the Medicaid program, administered by the Health Care 
Financing Administration, are in part 435 of title 42 of the Code of 
Federal Regulations.
    (c) Definitions. In this subpart----
    SSI benefits means Federal SSI benefits, including special SSI cash 
benefits under section 1619(a) of the Social Security Act. In addition, 
we consider a person who has special SSI eligibility status under 
section 1619(b) of the Social Security Act to be receiving SSI benefits.
    State Medicaid Plan means a State's medical assistance plan which 
the Secretary has approved under title XIX of the Act for Federal 
payment of a share of the State's medical assistance expenses.
    State supplementary payments means supplementary payments we 
administer for a State under subpart T of this part.
    We, us, or our refers to the Social Security Administration.

[[Page 953]]



Sec. 416.2111  Conditions for our agreeing to make Medicaid eligibility determinations.

    We will agree to make Medicaid eligibility determinations for a 
State only if the State's Medicaid eligibility requirements for 
recipients of SSI benefits and for recipients of State supplementary 
payments are the same as the requirements for receiving SSI benefits and 
the requirements for receiving State supplementary payments, 
respectively. Exceptions: We may agree to make Medicaid eligibility 
determinations--
    (a) For one, two, or all of the three categories of people (i.e., 
aged, blind, and disabled) who receive SSI benefits or State 
supplementary payments; or
    (b) Even though the State's Medicaid eligibility requirements for 
recipients of SSI benefits or of State supplementary payments, or both, 
differ from the requirements for SSI or State supplementary payments, or 
both, in ways mandated by Federal law.



Sec. 416.2116  Medicaid eligibility determinations.

    If a State requests, we may agree, under the conditions in this 
subpart, to make Medicaid eligibility determinations on behalf of the 
State. Under these agreements, we make the Medicaid determinations when 
determinations or redeterminations are necessary for SSI purposes. Our 
determinations may include non-SSI requirements that are mandated by 
Federal law. When we determine that a person is eligible for Medicaid in 
accordance with Sec. 416.2111 or that we are not making the 
determination, we notify the State of that fact.



Sec. 416.2130  Effect of the agreement and responsibilities of States.

    (a) An agreement under this subpart does not change--
    (1) The provisions of a State's Medicaid plan;
    (2) The conditions under which the Secretary will approve a State's 
Medicaid plan; or
    (3) A State's responsibilities under the State Medicaid plan.
    (b) Following are examples of functions we will not agree to carry 
out for the State:
    (1) Stationing of our employees at hospitals or nursing homes to 
take Medicaid applications;
    (2) Determining whether a person is eligible for Medicaid for any 
period before he or she applied for SSI benefits;
    (3) Giving approval for emergency medical care under Medicaid before 
a determination has been made on whether a person is eligible for SSI 
benefits;
    (4) Setting up or running a State's system for requiring a person to 
pay part of the cost of services he or she receives under Medicaid; or
    (5) Giving identification cards to people to show that they are 
eligible for Medicaid.



Sec. 416.2140  Liability for erroneous Medicaid eligibility determinations.

    If the State suffers any financial loss, directly or indirectly, 
through using any information we provide under an agreement described in 
this subpart, we will not be responsible for that loss. However, if we 
erroneously tell a State that a person is eligible for Medicaid and the 
State therefore makes erroneous Medicaid payments, the State will be 
paid the Federal share of those payments under the Medicaid program as 
if they were correct.



Sec. 416.2145  Services other than Medicaid determinations.

    We will agree under authority of section 1106 of the Act and 31 
U.S.C. 6505 to provide services other than Medicaid determinations to 
help the State administer its Medicaid program. We will do this only if 
we determine it is the most efficient and economical way to accomplish 
the State's purpose and does not interfere with administration of the 
SSI program. The services can be part of a Medicaid eligibility 
determination agreement or a separate agreement. Under either agreement 
we will--
    (a) Give the State basic information relevant to Medicaid 
eligibility from individuals' applications for SSI benefits;
    (b) Give the State answers to certain purely Medicaid-related 
questions (in addition to any that may be necessary under 
Sec. 416.2111(b)), such as whether the SSI applicant has any unpaid 
medical

[[Page 954]]

expenses for the current month or the previous 3 calendar months;
    (c) Conduct statistical or other studies for the State; and
    (d) Provide other services the State and we agree on.



Sec. 416.2161  Charges to States.

    (a) States with Medicaid eligibility determination agreement. A 
State with which we have an agreement to make Medicaid eligibility 
determinations is charged in the following manner:
    (1) If making Medicaid determinations and providing basic SSI 
application information for a State causes us additional cost, the State 
must pay half of that additional cost. ``Additional cost'' in this 
section means cost in addition to costs we would have had anyway in 
administering the SSI program.
    (2) The State must pay half our additional cost caused by providing 
any information that we collect for Medicaid purposes and by any other 
services directly related to making Medicaid eligibility determinations.
    (3) The State must pay our full additional cost for statistical or 
other studies and any other services that are not directly related to 
making Medicaid eligibility determinations.
    (b) States without Medicaid eligibility determination agreement. A 
State with which we do not have an agreement to make Medicaid 
eligibility determinations is charged in the following manner:
    (1) If providing basic SSI application information causes us 
additional cost, the State must pay our full additional cost.
    (2) The State must pay our full additional cost caused by providing 
any information that we collect for Medicaid purposes and for 
statistical or other studies and any other services.



Sec. 416.2166  Changing the agreement.

    The State and we can agree in writing to change the agreement at any 
time.



Sec. 416.2171  Duration of agreement.

    An agreement under this subpart is automatically renewed for 1 year 
at the end of the term stated in the agreement and again at the end of 
each 1-year renewal term, unless--
    (a) The State and we agree in writing to end it at any time;
    (b) Either the State or we end it at any time without the other's 
consent by giving written notice at least 90 days before the end of a 
term, or 120 days before any other ending date selected by whoever wants 
to end the agreement; or
    (c)(1) The State fails to pay our costs as agreed;
    (2) We notify the State in writing, at least 30 days before the 
ending date we select, why we intend to end the agreement; and
    (3) The State does not give a good reason for keeping the agreement 
in force beyond the ending date we selected. If the State does provide a 
good reason, the termination will be postponed or the agreement will be 
kept in force until the end of the term.



Sec. 416.2176  Disagreements between a State and us.

    (a) If a State with which we have an agreement under this subpart 
and we are unable to agree about any question of performance under the 
agreement, the State may appeal the question to the Commissioner of 
Social Security. The Commissioner or his or her designee will, within 90 
days after receiving the State's appeal, give the State either a written 
decision or a written explanation of why a decision cannot be made 
within 90 days, what is needed before a decision can be made, and when a 
decision is expected to be made.
    (b) The Commissioner's decision will be the final decision of the 
Department of Health and Human Services, unless the State appeals the 
decision within 30 days after receiving it to the Department's Grant 
Appeals Board under procedures in 45 CFR part 16.



       Subpart V--Payments for Vocational Rehabilitation Services

    Authority:  Secs. 702(a)(5), 1615, 1631(d)(1) and (e), and 1633(a) 
of the Social Security Act (42 U.S.C. 902(a)(5), 1382d, 1383(d)(1) and 
(e), and 1683b(a)).

    Source:  48 FR 6297, Feb. 10, 1983, unless otherwise noted.

[[Page 955]]

                           General Provisions



Sec. 416.2201  General.

    In general, sections 1615 (d) and (e) of the Social Security Act 
(the Act) authorize payment from the general fund for the reasonable and 
necessary costs of vocational rehabilitation (VR) services provided 
certain disabled or blind individuals who are eligible for supplemental 
security income (SSI) benefits, special SSI eligibility status, or 
federally administered State supplementary payments. In this subpart, 
such benefits, status, or payments are referred to as disability or 
blindness benefits (see Sec. 416.2203). Subject to the provisions of 
this subpart, payment may be made for VR services provided an individual 
during a month(s) for which the individual is eligible for disability or 
blindness benefits, including the continuation of such benefits under 
section 1631(a)(6) of the Act, or for which the individual's disability 
or blindness benefits are suspended (see Sec. 416.2215). Paragraphs (a), 
(b) and (c) of this section describe the cases in which the State VR 
agencies and alternate participants can be paid for the VR services 
provided such an individual under this subpart. The purpose of sections 
1615 (d) and (e) of the Act is to make VR services more readily 
available to disabled or blind individuals, help State VR agencies and 
alternate participants to recover some of their costs in VR refusal 
situations, as described in Sec. 416.2213, and ensure that savings 
accrue to the general fund. Payment will be made for VR services 
provided on behalf of such an individual in cases where--
    (a) The furnishing of the VR services results in the individual's 
completion of a continuous 9-month period of substantial gainful 
activity (SGA) as specified in Secs. 416.2210 through 416.2211;
    (b) The individual continues to receive disability or blindness 
benefits, even though his or her disability or blindness has ceased, 
under section 1631(a)(6) of the Act because of his or her continued 
participation in an approved VR program which we have determined will 
increase the likelihood that he or she will not return to the disability 
or blindness rolls (see Sec. 416.2212); or
    (c) The individual refuses, without good cause, to continue or to 
cooperate in a VR program in such a manner as to preclude his or her 
succesful rehabilitation (see Sec. 416.2213).

[55 FR 8456, Mar. 8, 1990, as amended at 61 FR 31026, June 19, 1996]



Sec. 416.2202  Purpose and scope.

    This subpart describes the rules under which the Secretary will pay 
the State VR agencies or alternate participants for VR services. Payment 
will be provided for VR services provided on behalf of disabled or blind 
individuals under one or more of the three provisions discussed in 
Sec. 416.2201.
    (a) Sections 416.2201 through 416.2203 describe the purpose of these 
regulations and the meaning of terms we frequently use in them.
    (b) Section 416.2204 explains how State VR agencies or alternate 
participants may participate in the payment program under this subpart.
    (c) Section 416.2206 describes the basic qualifications for 
alternate participants.
    (d) Sections 416.2208 through 416.2209 describe the requirements and 
conditions under which we will pay a State VR agency or alternate 
participant under this subpart.
    (e) Sections 416.2210 through 416.2211 describe when an individual 
has completed a continuous period of SGA and when VR services will be 
considered to have contributed to that period.
    (f) Sections 416.2212 and 416.2213 describe when payment will be 
made to a VR agency or alternate participant because an individual's 
disability or blindness benefits are continued based on his or her 
participation in a VR program which we have determined will increase the 
likelihood that he or she will not return to the disability rolls; and 
when payment will be made to a VR agency or alternate participant when 
an individual, without good cause, refuses to continue to participate in 
a VR program or fails to cooperate in such a manner as to preclude his 
or her successful rehabilitation.
    (g) Sections 416.2214 through 416.2215 describe services for which 
payment will be made.

[[Page 956]]

    (h) Section 416.2216 describes the filing deadlines for claims for 
payment for VR services.
    (i) Section 416.2217 describes the payment conditions.
    (j) Section 416.2218 describes the applicability of these 
regulations to alternate participants.
    (k) Section 416.2219 describes how we will make payment to State VR 
agencies or alternate participants for rehabilitation services.
    (l) Sections 416.2220 and 416.2221 describe the audits and the 
prepayment and postpayment validation reviews we will conduct.
    (m) Section 416.2222 discusses confidentiality of information and 
records.
    (n) Section 416.2223 provides for the applicability of other Federal 
laws and regulations.
    (o) Section 416.2227 provides for the resolution of disputes.

[48 FR 6297, Feb. 10, 1983, as amended at 55 FR 8456, Mar. 8, 1990; 59 
FR 11916, Mar. 15, 1994]



Sec. 416.2203  Definitions.

    For purposes of this subpart:
    Accept the recipient as a client for VR services means that the 
State VR agency determines that the individual is eligible for VR 
services and places the individual into an active caseload status for 
development of an individualized written rehabilitation program.
    Act means the Social Security Act, as amended.
    Alternate participants means any public or private agencies (except 
participating State VR agencies (see Sec. 416.2204)), organizations, 
institutions, or individuals with whom the Commissioner has entered into 
an agreement or contract to provide VR services.
    Blindness means ``blindness'' as defined in section 1614(a)(2) of 
the Act.
    Commissioner means the Commissioner of Social Security or the 
Commissioner's designee.
    Disability means ``disability'' as defined in section 1614(a)(3) of 
the Act.
    Disability or blindness benefits, as defined for this subpart only, 
refers to regular SSI benefits under section 1611 of the Act (see 
Sec. 416.202), special SSI cash benefits under section 1619(a) of the 
Act (see Sec. 416.261), special SSI eligibility status under section 
1619(b) of the Act (see Sec. 416.264), and/or a federally administered 
State supplementary payment under section 1616 of the Act or section 
212(b) of Public Law 93-66 (see Sec. 416.2001), for which an individual 
is eligible based on disability or blindness, as appropriate.
    Good cause for VR refusal (as described in Sec. 416.2213) is defined 
in Sec. 416.1715 of this part.
    Medical recovery for purposes of this subpart is established when a 
disabled or blind recipient's eligibility ceases for any medical reason 
(other than death). The determination of medical recovery is made by the 
Commissioner in deciding a recipient's continuing eligibility for 
benefits.
    Place the recipient into an extended evaluation process means that 
the State VR agency determines that an extended evaluation of the 
individual's VR potential is necessary to determine whether the 
individual is eligible for VR services and places the individual into an 
extended evaluation status.
    Secretary means the Secretary of Health and Human Services or the 
Secretary's designee.
    SGA means substantial gainful activity performed by an individual as 
defined in Secs. 416.971 through 416.975 of this subpart or 
Sec. 404.1584 of this chapter.
    Special SSI eligibility status refers to the special status 
described in Secs. 416.264 through 416.269 relating to eligibility for 
Medicaid.
    State means any of the 50 States of the United States, the District 
of Columbia, or the Northern Mariana Islands. It includes the State VR 
agency.
    Vocational rehabilitation services has the meaning assigned to it 
under title I of the Rehabilitation Act of 1973.
    VR agency means an agency of the State which has been designated by 
the State to provide vocational rehabilitation services under title I of 
the Rehabilitation Act of 1973.
    We, us, and our refer to the Social Security Administration (SSA) or 
the Secretary, as appropriate.

[48 FR 6297, Feb. 10, 1983, as amended at 55 FR 8456, Mar. 8, 1990; 55 
FR 19423, May 9, 1990; 59 FR 1637, Jan. 12, 1994; 59 FR 11916, Mar. 15, 
1994; 61 FR 31026, June 19, 1996]

[[Page 957]]



Sec. 416.2204  Participation by State VR agencies or alternate participants.

    (a) General. In order to participate in the payment program under 
this subpart through its VR agency(ies), a State must have a plan which 
meets the requirements of title I of the Rehabilitation Act of 1973, as 
amended. An alternate participant must have a similar plan and otherwise 
qualify under Sec. 416.2206.
    (b) Participation by States. (1) The opportunity to participate 
through its VR agency(ies) with respect to disabled or blind recipients 
in the State will be offered first to the State in accordance with 
paragraph (c) of this section, unless the State has notified us in 
advance under paragraph (e)(1) of this section of its decision not to 
participate or to limit such participation.
    (2) A State with one or more approved VR agencies may choose to 
limit participation of those agencies to a certain class(es) of disabled 
or blind recipients. For example, a State with separate VR agencies for 
the blind and disabled may choose to limit participation to the VR 
agency for the blind. In such a case, we would give the State, through 
its VR agency for the blind, the opportunity to participate with respect 
to blind recipients in the State in accordance with paragraph (d) of 
this section. We would arrange for VR services for disabled recipients 
in the State through an alternate participant(s). A State that chooses 
to limit participation of its VR agency(ies) must notify us in advance 
under paragraph (e)(1) of this section of its decision to limit such 
participation.
    (3) If a State chooses to participate by using a State agency other 
than a VR agency with a plan for VR services approved under title I of 
the Rehabilitation Act of 1973, as amended, that State agency may 
participate only as an alternate participant.
    (c) Opportunity for participation through State VR agencies. (1) 
Unless a State has decided not to participate or to limit participation, 
we will give the State the opportunity to participate through its VR 
agency(ies) with respect to disabled or blind recipients in the State by 
referring such recipients first to the State VR agency(ies) for 
necessary VR services. A State, through its VR agency(ies), may 
participate with respect to any recipient so referred by accepting the 
recipient as a client for VR services or placing the recipient into an 
extended evaluation process and notifying us under paragraph (c)(2) of 
this section of such acceptance or placement.
    (2)(i) In order for the State to participate with respect to a 
disabled or blind recipient whom we referred to a State VR agency, the 
State VR agency must notify the appropriate Regional Commissioner (SSA) 
in writing or through electronic notification of its decision either to 
accept the recipient as a client for VR services or to place the 
recipient into an extended evaluation process. The notice must be 
received by the appropriate Regional Commissioner (SSA) no later than 
the close of the fourth month following the month in which we referred 
the recipient to the State VR agency. If we do not receive such notice 
with respect to a recipient whom we referred to the State VR agency, we 
may arrange for VR services for that recipient through an alternate 
participant.
    (ii) In any case in which a State VR agency notifies the appropriate 
Regional Commissioner (SSA) in writing within the stated time period 
under paragraph (c)(2)(i) of this section of its decision to place the 
recipient into an extended evaluation process, the State VR agency also 
must notify that Regional Commissioner in writing upon completion of the 
evaluation of its decision whether or not to accept the recipient as a 
client for VR services. If we receive a notice of a decision by the 
State VR agency to accept the recipient as a client for VR services 
following the completion of the extended evaluation, the State may 
continue to participate with respect to such recipient. If we receive a 
notice of a decision by the State VR agency not to accept the recipient 
as a client for VR services following the completion of the extended 
evaluation, we may arrange for VR services for that recipient through an 
alternate participant.
    (d) Opportunity for limited participation through State VR agencies. 
If a State has decided under paragraph (e)(1) of this section to limit 
participation of its VR agency(ies) to a certain

[[Page 958]]

class(es) of disabled or blind recipients in the State, we will give the 
State the opportunity to participate with respect to such class(es) of 
disabled or blind recipients by referring such recipients first to the 
State VR agency(ies) for necessary VR services. The State, through its 
VR agency(ies), may participate with respect to any recipient so 
referred by accepting the recipient as a client for VR services or 
placing the recipient into an extended evaluation process and notifying 
us under paragraph (c)(2) of this section of such acceptance or 
placement.
    (e) Decision of a State not to participate or to limit 
participation. (1) A State may choose not to participate through its VR 
agency(ies) with respect to any disabled or blind recipients in the 
State, or it may choose to limit participation of its VR agency(ies) to 
a certain class(es) of disabled or blind recipients in the State. A 
State which decides not to participate or to limit participation must 
provide advance written notice of that decision to the appropriate 
Regional Commissioner (SSA). Unless a State specifies a later month, a 
decision not to participate or to limit participation will be effective 
beginning with the third month following the month in which the notice 
of the decision is received by the appropriate Regional Commissioner 
(SSA). The notice of the State decision must be submitted by an official 
authorized to act for the State for this purpose. A State must provide 
to the appropriate Regional Commissioner (SSA) an opinion from the 
State's Attorney General, verifying the authority of the official who 
sent the notice to act for the State. This opinion will not be necessary 
if the notice is signed by the Governor of the State.
    (2)(i) If a State has decided not to participate through its VR 
agency(ies), we may arrange for VR services through an alternate 
participant(s) for disabled or blind recipients in the State.
    (ii) If a State has decided to limit participation of its VR 
agency(ies) to a certain class(es) of disabled or blind recipients, we 
may arrange for VR services through an alternate participant(s) for the 
class(es) of disabled or blind recipients in the State excluded from the 
scope of the State's participation.
    (3) A State which has decided not to participate or to limit 
participation may participate later through its VR agency(ies) in 
accordance with paragraph (c) of this section, provided that such 
participation will not conflict with any previous commitment which we 
may have made to an alternate participant(s) under paragraph (e)(2) of 
this section. A State which decides to resume participation under 
paragraph (c) of this section must provide advance written notice of 
that decision to the appropriate Regional Commissioner (SSA). Unless a 
commitment to an alternate participant(s) requires otherwise, a decision 
of a State to resume participation under paragraph (c) of this section 
will be effective beginning with the third month following the month in 
which the notice of the decision is received by the appropriate Regional 
Commissioner (SSA) or, if later, with a month specified by the State. 
The notice of the State decision must be submitted by an official 
authorized to act for the State as explained in paragraph (e)(1) of this 
section.
    (f) Use of alternate participants. The Commissioner, by written 
agreement or contract, may arrange for VR services through an alternate 
participant(s) for any disabled or blind recipient in the State with 
respect to whom the State is unwilling to participate through its VR 
agency(ies). In such a case, we may refer the recipient to such 
alternate participant for necessary VR services. The Commissioner will 
find that a State is unwilling to participate with respect to any of the 
following disabled or blind recipients in that State:
    (1) A disabled or blind recipient whom we referred to a State VR 
agency under paragraph (c) or (d) of this section if we do not receive a 
notice within the stated time period under paragraph (c)(2)(i) of this 
section of a decision by the VR agency either to accept the recipient as 
a client for VR services or to place the recipient into an extended 
evaluation process;
    (2) A disabled or blind recipient with respect to whom we receive a 
notice

[[Page 959]]

under paragraph (c)(2)(ii) of this section of a decision by the VR 
agency not to accept the recipient as a client for VR services following 
the completion of the extended evaluation;
    (3) The class(es) of disabled or blind recipients excluded from the 
scope of the State's participation if the State has decided to limit 
participation of its VR agency(ies); and
    (4) All disabled or blind recipients in the State if the State has 
decided not to participate through its VR agency(ies).

[59 FR 11917, Mar. 15, 1994]



Sec. 416.2206  Basic qualifications for alternate participants.

    (a) General. We may arrange for VR services through an alternate 
participant by written agreement or contract as explained in 
Sec. 416.2204(f). An alternate participant may be a public or private 
agency, organization, institution or individual (that is, any entity 
whether for-profit or not-for-profit), other than a State VR agency.
    (1) An alternate participant must--
    (i) Be licensed, certified, accredited, or registered, as 
appropriate, to provide VR services in the State in which it provides 
services; and
    (ii) Under the terms of the written contract or agreement, have a 
plan similar to the State plan described in Sec. 416.2204(a) which shall 
govern the provision of VR services to individuals.
    (2) We will not use as an alternate participant any agency, 
organization, institution, or individual--
    (i) Whose license, accreditation, certification, or registration is 
suspended or revoked for reasons concerning professional competence or 
conduct or financial integrity;
    (ii) Who has surrendered such license, accreditation, certification, 
or registration pending a final determination of a formal disciplinary 
proceeding; or
    (iii) Who is precluded from Federal procurement or nonprocurement 
programs.
    (b) Standards for the provision of VR services. An alternate 
participant's plan must provide, among other things, that the provision 
of VR services to individuals will meet certain minimum standards, 
including, but not limited to, the following:
    (1) All medical and related health services furnished will be 
prescribed by, or provided under the formal supervision of, persons 
licensed to prescribe or supervise the provision of these services in 
the State;
    (2) Only qualified personnel and rehabilitation facilities will be 
used to furnish VR services; and
    (3) No personnel or rehabilitation facility described in paragraph 
(a)(2)(i), (ii), or (iii) of this section will be used to provide VR 
services.

[59 FR 11918, Mar. 15, 1994]

                           Payment Provisions



Sec. 416.2208  Requirements for payment.

    (a) The State VR agency or alternate participant must file a claim 
for payment in each individual case within the time periods specified in 
Sec. 416.2216;
    (b) The claim for payment must be in a form prescribed by us and 
contain the following information:
    (1) A description of each service provided;
    (2) When the service was provided; and
    (3) The cost of the service;
    (c) The VR services for which payment is being requested must have 
been provided during the period specified in Sec. 416.2215;
    (d) The VR services for which payment is being requested must have 
been provided under a State plan for VR services approved under title I 
of the Rehabilitation Act of 1973, as amended, or, in the case of an 
alternate participant, under a negotiated plan, and must be services 
that are described in Sec. 416.2214;
    (e) The individual must meet one of the VR payment provisions 
specified in Sec. 416.2201;
    (f) The State VR agency or alternate participant must maintain, and 
provide as we may require, adequate documentation of all services and 
costs for all disabled or blind recipients with respect to whom a State 
VR agency or alternate participant could potentially request payment for 
services and costs under this subpart; and
    (g) The amount to be paid must be reasonable and necessary and be in

[[Page 960]]

compliance with the cost guidelines specified in Sec. 416.2217.

[48 FR 6297, Feb. 10, 1983, as amended at 55 FR 8456, Mar. 8, 1990; 59 
FR 11918, Mar. 15, 1994]



Sec. 416.2209  Responsibility for making payment decisions.

    The Commissioner will decide:
    (a) Whether a continuous period of 9 months of SGA has been 
completed;
    (b) Whether a disability or blindness recipient whose disability or 
blindness has ceased should continue to receive benefits under section 
1631(a)(6) of the Social Security Act for a month after October 1984 or, 
in the case of a blindness recipient, for a month after March 1988, 
based on his or her continued participation in a VR program;
    (c) Whether an individual, without good cause, refused to continue 
to accept VR services or failed to cooperate in a VR program for a 
month(s) after October 1984, and whether an individual's disability or 
blindness benefits should be suspended;
    (d) If and when medical recovery has occurred;
    (e) Whether documentation of VR services and expenditures is 
adequate;
    (f) If payment is to be based on completion of a continuous 9-month 
period of SGA, whether the VR services contributed to the continuous 
period of SGA;
    (g) Whether a VR service is a service described in Sec. 416.2214; 
and
    (h) What VR costs were reasonable and necessary and will be paid.

[55 FR 8456, Mar. 8, 1990, as amended at 59 FR 11918, Mar. 15, 1994; 61 
FR 31026, June 19, 1996]



Sec. 416.2210  What we mean by ``SGA'' and by ``a continuous period of 9 months''.

    (a) What we mean by ``SGA''. In determining whether an individual's 
work is SGA, we will follow the rules in Secs. 416.972 through 416.975. 
We will follow these same rules for individuals who are statutorily 
blind, but we will evaluate the earnings in accordance with the rules in 
Sec. 404.1584(d) of this chapter.
    (b) What we mean by ``a continuous period of 9 months''. A 
continuous period of 9 months ordinarily means a period of 9 consecutive 
calendar months. Exception: When an individual does not perform SGA in 9 
consecutive calendar months, he or she will be considered to have done 
so if--
    (1) The individual performs 9 months of SGA within 10 consecutive 
months and has monthly earnings that meet or exceed the guidelines in 
Sec. 416.974(b)(2), or Sec. 404.1584(d) of this chapter if the 
individual is statutorily blind, or
    (2) The individual performs at least 9 months of SGA within 12 
consecutive months, and the reason for not performing SGA in 2 or 3 of 
those months was due to circumstances beyond his or her control and 
unrelated to the impairment (e.g., the employer closed down for 3 
months).
    (c) What work we consider. In determining if a continuous period of 
SGA has been completed, all of an individual's work activity may be 
evaluated for purposes of this section, including work performed before 
October 1, 1981, during a trial work period, and after eligibility for 
disability or blindness payments ended. We will ordinarily consider only 
the first 9 months of SGA that occurs. The exception will be if an 
individual who completed 9 months of SGA later stops performing SGA, 
received VR services and then performs SGA for a 9-month period. See 
Sec. 416.2215 for the use of the continuous period in determining 
payment for VR services.

[48 FR 6297, Feb. 10, 1983, as amended at 55 FR 8457, Mar. 8, 1990]



Sec. 416.2211  Criteria for determining when VR services will be considered to have contributed to a continuous period of 9 months.

    The State VR agency or alternate participant may be paid for VR 
services if such services contribute to the individual's performance of 
a continuous 9-month period of SGA. The following criteria apply to 
individuals who received more than just evaluation services. If a State 
VR agency or alternate participant claims payment for services to an 
individual who received only evaluation services, it must establish that 
the individual's continuous period or medical recovery (if medical 
recovery occurred before completion of a continuous period) would not 
have occurred without the services provided. In applying the criteria 
below, we will consider services described in Sec. 416.2214

[[Page 961]]

that were initiated, coordinated or provided, including services before 
October 1, 1981.
    (a) Continuous period without medical recovery. If an individual who 
has completed a ``continuous period'' of SGA has not medically recovered 
as of the date of completion of the period, the determination as to 
whether VR services contributed will depend on whether the continuous 
period began one year or less after VR services ended or more than one 
year after VR services ended.
    (1) One year or less. Any VR services which significantly motivated 
or assisted the individual in returning to, or continuing in, SGA will 
be considered to have contributed to the continuous period.
    (2) More than one year. (i) If the continuous period was preceded by 
transitional work activity (employment or self-employment which 
gradually evolved, with or without periodic interruption, into SGA), and 
that work activity began less than a year after VR services ended, any 
VR services which significantly motivated or assisted the individual in 
returning to, or continuing in, SGA will be considered to have 
contributed to the continuous period.
    (ii) If the continuous period was not preceded by transitional work 
activity that began less than a year after VR services ended, VR 
services will be considered to have contributed to the continuous period 
only if it is reasonable to conclude that the work activity which 
constitutes a continuous period could not have occurred without the VR 
services (e.g., training).
    (b) Continuous period with medical recovery occurring before 
completion. (1) If an individual medically recovers before a continuous 
period has been completed, VR services under paragraph (a) of this 
section will not be payable unless some VR services contributed to the 
medical recovery. VR services will be considered to have contributed to 
the medical recovery if--
    (i) The individualized written rehabilitation program (IWRP), or in 
the case of an alternate participant, a similar document, included 
medical services; and
    (ii) The medical recovery occurred, at least in part, because of 
these medical services. (For example, the individual's medical recovery 
was based on improvement in a back condition which, at least in part, 
stemmed from surgery initiated, coordinated or provided under an IWRP).
    (2) In some instances, the State VR agency or alternate participant 
will not have provided, initiated, or coordinated medical services. If 
this happens, payment for VR services may still be possible under 
paragraph (a) of this section if: (i) The medical recovery was not 
expected by us; and (ii) the individual's impairment is determined by us 
to be of such a nature that any medical services provided would not 
ordinarily have resulted in, or contributed to, the medical cessation.

[48 FR 6297, Feb. 10, 1983, as amended at 59 FR 11918, Mar. 15, 1994]



Sec. 416.2212  Payment for VR services in a case where an individual continues to receive disability or blindness benefits based on participation in an approved 
          VR program.

    Section 1631(a)(6) of the Act contains the criteria we will use in 
determining if an individual whose disability or blindness has ceased 
should continue to receive disability or blindness benefits because of 
his or her continued participation in an approved VR program. A VR 
agency or alternate participant can be paid for the cost of VR services 
provided to an individual if the individual was receiving benefits based 
on this provision in a month(s) after October 1984 or, in the case of a 
blindness recipient, in a month(s) after March 1988. If this requirement 
is met, a VR agency or alternate participant can be paid for the costs 
of VR services provided within the period specified in Sec. 416.2215, 
subject to the other payment and administrative provisions of this 
subpart.

[55 FR 8457, Mar. 8, 1990, as amended at 61 FR 31026, June 19, 1996]



Sec. 416.2213  Payment for VR services in a case of VR refusal.

    (a) For purposes of this section, VR refusal means an individual's 
refusal to continue to accept VR services or failure to cooperate in 
such a manner as to preclude the individual's successful rehabilitation.

[[Page 962]]

    (b) No later than the 60th day after the State VR agency or 
alternate participant makes a preliminary finding that an individual 
refuses to continue to accept VR services or fails to cooperate in a VR 
program, the State VR agency or alternate participant shall report to 
the appropriate Regional Commissioner (SSA) in writing such individual's 
VR refusal so that we may make the determination described in 
Sec. 416.2209(c).
    (c) Payment can be made to a State VR agency or alternate 
participant for the costs of VR services provided to an individual who, 
after filing an application with the State VR agency or alternate 
participant for rehabilitation services, without good cause, refuses to 
continue to accept VR services or fails to cooperate in such a manner as 
to preclude the individual's successful rehabilitation. A State VR 
agency or alternate participant may be paid, subject to the provisions 
of this subpart, for the costs of VR services provided to an individual 
prior to his or her VR refusal if the individual's disability or 
blindness benefits have been suspended for a month(s) after October 1984 
because of such VR refusal.

[59 FR 11919, Mar. 15, 1994, as amended at 61 FR 31026, June 19, 1996]



Sec. 416.2214  Services for which payment may be made.

    (a) General. Payment may be made for VR services provided by a State 
VR agency in accordance with title I of the Rehabilitation Act of 1973, 
as amended, or by an alternate participant under a negotiated plan, 
subject to the limitations and conditions in this subpart. VR services 
for which payment may be made under this subpart include only those 
services described in paragraph (b) of this section which are--
    (1) Necessary to determine an individual's eligibility for VR 
services or the nature and scope of the services to be provided; or
    (2) Provided by a State VR agency under an IWRP, or by an alternate 
participant under a similar document, but only if the services could 
reasonably be expected to motivate or assist the individual in returning 
to, or continuing in, SGA.
    (b) Specific services. Payment may be made under this subpart only 
for the following VR services:
    (1) An assessment for determining an individual's eligibility for VR 
services and vocational rehabilitation needs by qualified personnel, 
including, if appropriate, an assessment by personnel skilled in 
rehabilitation technology, and which includes determining--
    (i) The nature and extent of the physical or mental impairment(s) 
and the resultant impact on the individual's employability;
    (ii) The likelihood that an individual will benefit from vocational 
rehabilitation services in terms of employability; and
    (iii) An employment goal consistent with the capacities of the 
individual and employment opportunities;
    (2) Counseling and guidance, including personal adjustment 
counseling, and those referrals and other services necessary to help an 
individual secure needed services from other agencies;
    (3) Physical and mental restoration services necessary to correct or 
substantially modify a physical or mental condition which is stable or 
slowly progressive and which constitutes an impediment to suitable 
employment at or above the SGA level;
    (4) Vocational and other training services, including personal and 
vocational adjustment, books, tools, and other training materials, 
except that training or training services in institutions of higher 
education will be covered under this section only if maximum efforts 
have been made by the State VR agency or alternate participant to secure 
grant assistance in whole or in part from other sources;
    (5) Maintenance expenses that are extra living expenses over and 
above the individual's normal living expenses and that are incurred 
solely because of and while the individual is participating in the VR 
program and that are necessary in order for the individual to benefit 
from other necessary VR services;
    (6) Travel and related expenses necessary to transport an individual 
for purpose of enabling the individual's participation in other 
necessary VR services;

[[Page 963]]

    (7) Services to family members of a disabled or blind individual 
only if necessary to the successful vocational rehabilitation of that 
individual;
    (8) Interpreter services and note-taking services for an individual 
who is deaf and tactile interpreting for an individual who is deaf and 
blind;
    (9) Reader services, rehabilitation teaching services, note-taking 
services, and orientation and mobility services for an individual who is 
blind;
    (10) Telecommunications, sensory, and other technological aids and 
devices;
    (11) Work-related placement services to secure suitable employment;
    (12) Post-employment services necessary to maintain, regain or 
advance into suitable employment at or above the SGA level;
    (13) Occupational licenses, tools, equipment, initial stocks, and 
supplies;
    (14) Rehabilitation technology services; and
    (15) Other goods and services that can reasonably be expected to 
motivate or assist the individual in returning to, or continuing in, 
SGA.

[59 FR 11919, Mar. 15, 1994]



Sec. 416.2215  When services must have been provided.

    (a) In order for the VR agency or alternate participant to be paid, 
the services must have been provided--
    (1) After September 30, 1981;
    (2) During a month(s) for which--
    (i) The individual is eligible for disability or blindness benefits 
or continues to receive such benefits under section 1631(a)(6) of the 
Act (see Sec. 416.2212); or
    (ii) The disability or blindness benefits of the individual are 
suspended due to his or her ineligibility for the benefits (see subpart 
M of this part concerning suspension for ineligibility); and
    (3) Before completion of a continuous 9-month period of SGA or 
termination of disability or blindness benefits, whichever occurs first 
(see subpart M of this part concerning termination of benefits).
    (b) If an individual who is receiving disability or blindness 
benefits under this part, or whose benefits under this part are 
suspended, also is entitled to disability benefits under part 404 of 
this chapter, the determination as to when services must have been 
provided may be made under this section or Sec. 404.2115 of this 
chapter, whichever is advantageous to the State VR agency or alternate 
participant that is participating in both VR programs.

[61 FR 31026, June 19, 1996]



Sec. 416.2216  When claims for payment for VR services must be made (filing deadlines).

    The State VR agency or alternate participant must file a claim for 
payment in each individual case within the following time periods:
    (a) A claim for payment for VR services based on the completion of a 
continuous 9-month period of SGA must be filed within 12 months after 
the month in which the continuous 9-month period of SGA is completed.
    (b) A claim for payment for VR services provided to an individual 
whose disability or blindness benefits were continued after disability 
or blindness has ceased because of that individual's continued 
participation in a VR program must be filed as follows:
    (1) If a written notice requesting that a claim be filed was sent to 
the State VR agency or alternate participant, a claim must be filed 
within 90 days following the month in which VR services end, or if 
later, within 90 days after receipt of the notice.
    (2) If no written notice was sent to the State VR agency or 
alternate participant, a claim must be filed within 12 months after the 
month in which VR services end.
    (c) A claim for payment based on an individual's refusal, without 
good cause, to continue or cooperate in a VR program must be filed--
    (1) Within 90 days after the VR agency or alternate participant 
receives our written request to file a claim for payment; or
    (2) If no written notice was sent to the State VR agency or 
alternate participant, a claim must be filed within 12 months after the 
first month for which disability or blindness benefits are suspended 
because of such VR refusal.

[55 FR 8457, Mar. 8, 1990, as amended at 61 FR 31026, June 19, 1996]

[[Page 964]]



Sec. 416.2217  What costs will be paid.

    In accordance with section 1615 (d) and (e) of the Social Security 
Act, the Secretary will pay the State VR agency or alternate participant 
for the VR services described in Sec. 416.2214 which were provided 
during the period described in Sec. 416.2215 and which meet the criteria 
in Sec. 416.2211, Sec. 416.2212, or Sec. 416.2213, but subject to the 
following limitations:
    (a) The cost must have been incurred by the State VR agency or 
alternate participant;
    (b) The cost must not have been paid or be payable from some other 
source. For this purpose, State VR agencies or alternate participants 
will be required to seek payment or services from other sources in 
accordance with the ``similar benefit'' provisions under 34 CFR part 
361, including making maximum efforts to secure grant assistance in 
whole or part from other sources for training or training services in 
institutions of higher education. Alternate participants will not be 
required to consider State VR services a similar benefit.
    (c)(1) The cost must be reasonable and necessary, in that it 
complies with the written cost-containment policies of the State VR 
agency or, in the case of an alternate participant, it complies with 
similar written policies established under a negotiated plan. A cost 
which complies with these policies will be considered necessary only if 
the cost is for a VR service described in Sec. 416.2214. The State VR 
agency or alternate participant must maintain and use these cost-
containment policies, including any reasonable and appropriate fee 
schedules, to govern the costs incurred for all VR services, including 
the rates of payment for all purchased services, for which payment will 
be requested under this subpart. For the purpose of this subpart, the 
written cost-containment policies must provide guidelines designed to 
ensure--
    (i) The lowest reasonable cost for such services; and
    (ii) Sufficient flexibility so as to allow for an individual's 
needs.
    (2) The State VR agency shall submit to us before the end of the 
first calendar quarter of each year a written statement certifying that 
cost-containment policies are in effect and are adhered to in procuring 
and providing goods and services for which the State VR agency requests 
payment under this subpart. Such certification must be signed by the 
State's chief financial official or the head of the VR agency. Each 
certification must specify the basis upon which it is made, e.g., a 
recent audit by an authorized State, Federal or private auditor (or 
other independent compliance review) and the date of such audit (or 
compliance review). In the case of an alternate participant, these 
certification requirements shall be incorporated into the negotiated 
agreement or contract. We may request the State VR agency or alternate 
participant to submit to us a copy(ies) of its specific written cost-
containment policies and procedures (e.g., any guidelines and fee 
schedules for a given year), if we determine that such additional 
information is necessary to ensure compliance with the requirements of 
this subpart. The State VR agency or alternate participant shall provide 
such information when requested by us.
    (d) The total payment in each case, including any prior payments 
related to earlier continuous 9-month periods of SGA made under this 
subpart, must not be so high as to preclude a ``net saving'' to the 
general funds (a ``net saving'' is the difference between the estimated 
savings to the general fund, if payments for disability or blindness 
remain reduced or eventually terminate, and the total amount we pay to 
the State VR agency or alternate participant);
    (e) Any payment to the State VR agency for either direct or indirect 
VR expenses must be consistent with the cost principles described in OMB 
Circular No. A-87, published at 46 FR 9548 on Janauary 28, 1981 (see 
Sec. 416.2218(a) for cost principles applicable to alternate 
participants);
    (f) Payment for VR services or costs may be made under more than one 
of the VR payment provisions described in Secs. 416.2211 through 
416.2213 of this subpart and similar provisions in Secs. 404.2111 
through 404.2113 of subpart v of part 404. However, payment will not be 
made more than once for the same

[[Page 965]]

VR service or cost. For example, payment to a VR agency based upon the 
completion of a continuous 9-month period of SGA which was made after an 
earlier payment based upon VR refusal, would only include payment for 
those VR costs incurred or services provided after the individual 
resumed VR services after refusal; and
    (g) Payment will be made for administrative costs and for counseling 
and placement costs. This payment may be on a formula basis, or on an 
actual cost basis, whichever the State VR agency prefers. The formula 
will be negotiated. The payment will also be subject to the preceding 
limitations.

[48 FR 6297, Feb. 10, 1983. Redesignated and amended at 55 FR 8457, 
8458, Mar. 8, 1990; 55 FR 14916, Apr. 19, 1990; 59 FR 11919, Mar. 15, 
1994; 61 FR 31027, June 19, 1996]

                        Administrative Provisions



Sec. 416.2218  Applicability of these provisions to alternate participants.

    When an alternate participant provides rehabilitation services under 
this subpart, the payment procedures stated herein shall apply except 
that:
    (a) Payment must be consistent with the cost principles described in 
45 CFR part 74 or 41 CFR part 1-15 as appropriate; and
    (b) Any disputes, including appeals of audit determinations, shall 
be resolved in accordance with applicable statutes and regulations which 
will be specified in the negotiated agreement or contract.

[48 FR 6297, Feb. 10, 1983. Redesignated at 55 FR 8457, Mar. 8, 1990]



Sec. 416.2219  Method of payment.

    Payment to the State VR agencies or alternate participants pursuant 
to this subpart will be made either by advancement of funds or by 
payment for services provided (with necessary adjustments for any 
overpayments and underpayments), as decided by the Commissioner.

[55 FR 8458, Mar. 8, 1990]



Sec. 416.2220  Audits.

    (a) General. The State or alternate participant shall permit us and 
the Comptroller General of the United States (including duly authorized 
representatives) access to and the right to examine records relating to 
the services and costs for which payment was requested or made under 
these regulations. These records shall be retained by the State or 
alternate participant for the periods of time specified for retention of 
records in the Federal Procurement Regulations (41 CFR parts 1-20).
    (b) Audit basis. Auditing will be based on cost principles and 
written guidelines in effect at the time services were provided and 
costs were incurred. The State VR agency or alternate participant will 
be informed and given a full explanation of any questioned items. They 
will be given a reasonable time to explain questioned items. Any 
explanation furnished by the State VR agency or alternate participant 
will be given full consideration before a final determination is made on 
questioned items in the audit report.
    (c) Appeal of audit determinations. The appropriate SSA Regional 
Commissioner will notify the State VR agency or alternate participant in 
writing of his or her final determination on the audit report. If the 
State VR agency (see Sec. 416.2218(b) for alternate participants) 
disagrees with that determination, it may request reconsideration in 
writing within 60 days after receiving the Regional Commissioner's 
notice of the determination. The Commissioner will make a determination 
and notify the State VR agency of that decision in writing, usually, no 
later than 45 days from the date of the appeal. The decision by the 
Commissioner will be final and conclusive unless the State VR agency 
appeals that decision in writing in accordance with 45 CFR part 16 to 
the Department of Health and Human Services Departmental Grant Appeals 
Board within 30 days after receiving it.

[48 FR 6297, Feb. 10, 1983, as amended at 55 FR 8458, Mar. 8, 1990]



Sec. 416.2221  Validation reviews.

    (a) General. We will conduct a validation review of a sample of the 
claims for payment filed by each State VR agency or alternate 
participant. We will conduct some of these reviews on a prepayment basis 
and some on a postpayment basis. We may review a

[[Page 966]]

specific claim, a sample of the claims, or all the claims filed by any 
State VR agency or alternate participant, if we determine that such 
review is necessary to ensure compliance with the requirements of this 
subpart. For each claim selected for review, the State VR agency or 
alternate participant must submit such records of the VR services and 
costs for which payment has been requested or made under this subpart, 
or copies of such records, as we may require to ensure that the services 
and costs meet the requirements for payment. For claims for cases 
described in Sec. 416.2201(a), a clear explanation or existing 
documentation which demonstrates how the service contributed to the 
individual's performance of a continuous 9-month period of SGA must be 
provided. For claims for cases described in Sec. 416.2201(b) or (c), a 
clear explanation or existing documentation which demonstrates how the 
service was reasonably expected to motivate or assist the individual to 
return to or continue in SGA must be provided. If we find in any 
prepayment validation review that the scope or content of the 
information is inadequate, we will request additional information and 
will withhold payment until adequate information has been provided. The 
State VR agency or alternate participant shall permit us (including duly 
authorized representatives) access to, and the right to examine, any 
records relating to such services and costs. Any review performed under 
this section will not be considered an audit for purposes of this 
subpart.
    (b) Purpose. The primary purpose of these reviews is--
    (1) To ensure that the VR services and costs meet the requirements 
for payment under this subpart;
    (2) To assess the validity of our documentation requirements; and
    (3) To assess the need for additional validation reviews or 
additional documentation requirements for any State VR agency or 
alternate participant to ensure compliance with the requirements under 
this subpart.
    (c) Determinations. In any validation review, we will determine 
whether the VR services and costs meet the requirements for payment and 
determine the amount of payment. We will notify in writing the State VR 
agency or alternate participant of our determination. If we find in any 
postpayment validation review that more or less than the correct amount 
of payment was made for a claim, we will determine that an overpayment 
or underpayment has occurred and will notify the State VR agency or 
alternate participant that we will make the appropriate adjustment.
    (d) Appeals. If the State VR agency or alternate participant 
disagrees with our determination under this section, it may appeal that 
determination in accordance with Sec. 416.2227. For purposes of this 
section, an appeal must be filed within 60 days after receiving the 
notice of our determination.

[59 FR 11920, Mar. 15, 1994]



Sec. 416.2222  Confidentiality of information and records.

    The State or alternate participant shall comply with the provisions 
for confidentiality of information, including the security of systems, 
and records requirements described in 20 CFR part 401 and pertinent 
written guidelines (see Sec. 416.2223).



Sec. 416.2223  Other Federal laws and regulations.

    Each State VR agency and alternate participant shall comply with the 
provisions of other Federal laws and regulations that directly affect 
its responsibilities in carrying out the vocational rehabilitation 
function.



Sec. 416.2227  Resolution of disputes.

    (a) Disputes on the amount to be paid. The appropriate SSA official 
will notify the State VR agency or alternate participant in writing of 
his or her determination concerning the amount to be paid. If the State 
VR agency (see Sec. 416.2218(b) for alternate participants) disagrees 
with that determination, the State VR agency may request reconsideration 
in writing within 60 days after receiving the notice of determination. 
The Commissioner will make a determination and notify the State VR 
agency of that decision in writing, usually, no later than 45 days from 
the date of the State VR agency's appeal. The decision by the 
Commissioner will be final and conclusive upon the State

[[Page 967]]

VR agency unless the State VR agency appeals that decision in writing in 
accordance with 45 CFR part 16 to the Department of Health and Human 
Services Departmental Grant Appeals Board within 30 days after receiving 
the Commissioner's decision.
    (b) Disputes on whether there was a continuous period of SGA and 
whether VR services contributed to a continuous period of SGA. The rules 
in paragraph (a) of this section will apply, except that the 
Commissioner's decision will be final and conclusive. There is no right 
of appeal to the Grant Appeals Board.
    (c) Disputes on determinations made by the Secretary which affect a 
disabled or blind beneficiary's rights to benefits. Determinations made 
by the Secretary which affect an individual's right to benefits (e.g., 
determinations that disability or blindness benefits should be 
terminated, denied, suspended, continued or begun at a different date 
than alleged) cannot be appealed by a State VR agency or alternate 
participant. Because these determinations are an intergral part of the 
disability or blindness benefits claims process, they can only be 
appealed by the beneficiary or applicant whose rights are affected or by 
his or her authorized representative. However, if an appeal of an 
unfavorable determination is made by the individual and is successful, 
the new determination would also apply for purposes of this subpart. 
While a VR agency or alternate participant cannot appeal a determination 
made by the Secretary which affects a beneficiary's or applicant's 
rights, the VR agency can furnish any evidence it may have which would 
support a revision of a determination.

[48 FR 6297, Feb. 10, 1983, as amended at 55 FR 8458, Mar. 8, 1990]



PART 422--ORGANIZATION AND PROCEDURES--Table of Contents




      Subpart A--Organization and Functions of the Social Security 
                             Administration

Sec.
422.1  Organization and functions.
422.5  District offices and branch offices.

                      Subpart B--General Procedures

422.101  Material included in this subpart.
422.103  Social security numbers.
422.104   To whom Social Security numbers are assigned.
422.105  Presumption of authority of nonimmigrant alien to accept 
          employment.
422.106  Filing applications with other government agencies.
422.107  Evidence requirements.
422.108  Criminal penalties.
422.110  Individual's request for change in record.
422.112  Employer identification numbers.
422.114  Annual wage reporting process.
422.120  Earnings reported without a social security number or with an 
          incorrect employee name or social security number.
422.122  Information on deferred vested pension benefits.
422.125  Statement of earnings; resolving earnings discrepancies.
422.130  Claim procedure.
422.135  Reports by beneficiaries.
422.140  Reconsideration of initial determination.

       Subpart C--Procedures of the Office of Hearings and Appeals

422.201  Material included in this subpart.
422.203  Hearings.
422.205  Review by Appeals Council.
422.210  Judicial review.

                         Subpart D-E  [Reserved]

                Subpart F--Applications and Related Forms

422.501  Applications and other forms used in Social Security 
          Administration programs.
422.505  Applications and related forms for retirement, survivors, and 
          disability insurance programs.
422.510  Applications and related forms used in the health insurance for 
          the aged program.
422.512  Applications and related forms used in the black lung benefits 
          program.
422.515  Forms used for withdrawal, reconsideration and other appeals, 
          and appointment of representative.
422.520  Forms related to maintenance of earnings records.
422.525  Where applications and other forms are available.
422.527  Private printing and modification of prescribed applications 
          and other forms.

Subpart G--Administrative Review Process Under the Coal Industry Retiree 
                       Health Benefit Act of 1992

422.601  Scope and purpose.

[[Page 968]]

422.602  Terms used in this subpart.
422.603  Overview of the review process.
422.604  Request for detailed information.
422.605  Request for review.
422.606  Processing the request for review.
422.607  Limited reopening of assignments.

    Source:  32 FR 13653, Sept. 29, 1967, unless otherwise noted.



      Subpart A--Organization and Functions of the Social Security 
                             Administration

    Authority:  Secs. 205, 218, 221, and 701-704 of the Social Security 
Act (42 U.S.C. 405, 418, 421, and 901-904).



Sec. 422.1  Organization and functions.

    (a) General. A complete description of the organization and 
functions of the Social Security Administration (pursuant to 5 U.S.C. 
552(a), as amended by Pub. L. 90-23, the Public Information Act) was 
published in the Federal Register of July 15, 1967 (32 FR 10458), and 
was subsequently revised on April 16, 1968 (33 FR 5828), and amended on 
July 18, 1968 (33 FR 10292). Further amendments to or revisions of the 
description will be published in the Federal Register when and if 
required by changes in the organization or functions of the Social 
Security Administration. Such description (referred to as the SSA 
Statement of Organization, Functions, and Delegations of Authority) is 
printed and kept up to date in the Department Staff Manual on 
Organization, Department of Health and Human Services, part 8, a copy of 
which is maintained in each district office and branch office of the 
Social Security Administration and is available for inspection and 
copying.
    (b) Information included in description. This description includes 
information about the organization and functions of each component of 
the Social Security Administration. It also includes a listing of all 
district offices and branch offices within the organization of the 
Bureau of District Office Operations, and a listing of field offices 
within the organization of the Bureau of Hearings and Appeals where the 
public may secure information, make submittals or requests, or obtain 
decisions.

[34 FR 435, Jan. 11, 1969]



Sec. 422.5  District offices and branch offices.

    There are over 700 social security district offices and branch 
offices located in the principal cities and other urban areas or towns 
of the United States. In addition, there are over 3,300 contact 
stations, located in population and trading centers, which are visited 
on a regularly, recurring, preannounced basis. A schedule of these 
visits can be obtained from the nearest district office or branch 
office. The address of the nearest district office or branch office can 
be obtained from the local telephone directory or from the post office. 
Each district office and branch office has a list of all district 
offices and branch offices throughout the country and their addresses. 
The principal officer in each district office is the manager. The 
principal officer in each branch office is the officer-in-charge. Each 
district office and branch office also has a list of field offices of 
the Bureau of Hearings and Appeals and their addresses. The 
administrative hearing examiner is the principal officer in each field 
office. For procedures relating to claims see Sec. 422.130, subpart J of 
part 404 of this chapter, and Sec. 404.1520 of this chapter (the latter 
relating to disability determinations). For procedures on request for 
hearing by an Administrative Law Judge and review by the Appeals Council 
see subpart C of this part 422.



                      Subpart B--General Procedures

    Authority:  Secs. 205, 232, 702(a)(5), 1131, and 1143 of the Social 
Security Act (42 U.S.C. 405, 432, 902(a)(5), 1320b-1, and 1320b-13).



Sec. 422.101  Material included in this subpart.

    This subpart describes the procedures relating to applications for 
and assignment of social security numbers, maintenance of earnings 
records of individuals by the Social Security Administration, requests 
for statements of earnings or for revision of earnings records, and 
general claims procedures, including filing of applications, submission 
of evidence, determinations, and reconsideration of initial 
determinations.

[[Page 969]]



Sec. 422.103  Social security numbers.

    (a) General. The Social Security Administration (SSA) maintains a 
record of the earnings reported for each individual assigned a social 
security number. The individual's name and social security number 
identify the record so that the wages or self-employment income reported 
for or by the individual can be properly posted to the individual's 
record. Additional procedures concerning social security numbers may be 
found in Internal Revenue Service, Department of the Treasury regulation 
26 CFR 31.6011(b)-2.
    (b) Applying for a number--(1) Form SS-5. An individual needing a 
social security number may apply for one by filing a signed form SS-5, 
``Application for A Social Security Number Card,'' at any social 
security office and submitting the required evidence. Upon request, the 
social security office may distribute a quantity of form SS-5 
applications to labor unions, employers, or other representative 
organizations. An individual outside the United States may apply for a 
social security number card at the Department of Veterans Affairs 
Regional Office, Manila, Philippines, at any U.S. foreign service post, 
or at a U.S. military post outside the United States. (See Sec. 422.106 
for special procedures for filing applications with other government 
agencies.) Additionally, a U.S. resident may apply for a social security 
number for a nonresident dependent when the number is necessary for U.S. 
tax purposes or some other valid reason, the evidence requirements of 
Sec. 422.107 are met, and we determine that a personal interview with 
the dependent is not required. Form SS-5 may be obtained at:
    (i) Any local social security office;
    (ii) The Social Security Administration, 300 N. Greene Street, 
Baltimore, MD 21201;
    (iii) Offices of District Directors of Internal Revenue;
    (iv) U.S. Postal Service offices (except the main office in cities 
having a social security office);
    (v) U.S. Employment Service offices in cities which do not have a 
social security office;
    (vi) The Department of Veterans Affairs Regional Office, Manila, 
Philippines;
    (vii) Any U.S. foreign service post; and
    (viii) U.S. military posts outside the U.S.
    (2) Birth registration document. SSA may enter into an agreement 
with officials of a State, including, for this purpose, the District of 
Columbia, Puerto Rico, Guam, the U.S. Virgin Islands, and New York City, 
to establish, as part of the official birth registration process, a 
procedure to assist SSA in assigning social security numbers to newborn 
children. Where an agreement is in effect, a parent, as part of the 
official birth registration process, need not complete a form SS-5 and 
may request that SSA assign a social security number to the newborn 
child.
    (c) How numbers are assigned--(1) Request on form SS-5. If the 
applicant has completed a form SS-5, the social security office, the 
Department of Veterans Affairs Regional Office, Manila, Philippines, the 
U.S. foreign service post, or the U.S. military post outside the United 
States that receives the completed form SS-5 will require the applicant 
to furnish documentary evidence, as necessary, to assist SSA in 
establishing the age, U.S. citizenship or alien status, true identity, 
and previously assigned social security number(s), if any, of the 
applicant. A personal interview may be required of the applicant. (See 
Sec. 422.107 for evidence requirements.) After review of the documentary 
evidence, the completed form SS-5 is forwarded or data from the SS-5 is 
transmitted to SSA's central office in Baltimore, Md., where the data is 
electronically screened against SSA's files. If the applicant requests 
evidence to show that he or she has filed an application for a social 
security number card, a receipt or equivalent document may be furnished. 
If the electronic screening or other investigation does not disclose a 
previously assigned number, SSA's central office assigns a number and 
issues a social security number card. If investigation discloses a 
previously assigned number for the applicant, a duplicate social 
security number card is issued.
    (2) Request on birth registration document. Where a parent has 
requested a social security number for a newborn

[[Page 970]]

child as part of an official birth registration process described in 
paragraph (b)(2) of this section, the State vital statistics office will 
electronically transmit the request to SSA's central office in 
Baltimore, MD, along with the child's name, date and place of birth, 
sex, mother's maiden name, father's name (if shown on the birth 
registration), address of the mother, and birth certificate number. This 
birth registration information received by SSA from the State vital 
statistics office will be used to establish the age, identity, and U.S. 
citizenship of the newborn child. Using this information, SSA will 
assign a number to the child and send the social security number card to 
the child at the mother's address.
    (d) Social security number cards. A person who is assigned a social 
security number will receive a social security number card from SSA 
within a reasonable time after the number has been assigned. (See 
Sec. 422.104 regarding the assignment of social security number cards to 
aliens.) Social security number cards are the property of SSA and must 
be returned upon request.
    (e) Replacement of social security number card. In case of loss of 
or damage to the social security number card, a duplicate card bearing 
the same number may be issued. (See Sec. 422.107 for evidence 
requirements.)

[55 FR 46664, Nov. 6, 1990]



Sec. 422.104  To whom Social Security numbers are assigned.

    (a) Persons with evidence of age, identity, and U.S. citizenship or 
alien status. A Social Security number may be assigned to an applicant 
who meets the evidence requirements in Sec. 422.107, if the applicant 
is:
    (1) A U.S. citizen;
    (2) An alien lawfully admitted to the United States for permanent 
residence or under other authority of law permitting him or her to work 
in the United States (see Sec. 422.105 regarding presumption of 
authority of nonimmigrant alien to work); or
    (3) An alien who is legally in the United States but not under 
authority of law permitting him or her to engage in employment, but only 
for a nonwork purpose (see Sec. 422.107(e)(1) and (2)).
    (b) Persons with other evidence of alien status. A Social Security 
number may be assigned for a nonwork purpose to an alien who cannot 
provide the evidence of alien status required by Sec. 422.107(e), if the 
evidence described in that section does not exist, if other evidence is 
provided, and if:
    (1) The alien resides either in or outside the United States and a 
Social Security number is required by law as a condition of the alien's 
receiving a federally-funded benefit to which the alien has established 
entitlement; or
    (2) The alien resides outside the United States and needs a Social 
Security number for a Federal tax reporting purpose for which SSA and 
the Internal Revenue Service have agreed that an individual needs a 
number.
    (c) Annotation for a nonwork purpose. If SSA has assigned a Social 
Security number for a nonwork purpose under the provision of paragraph 
(b)(1) or (b)(2) of this section, SSA will annotate its record to show 
that the number has been assigned for a nonwork purpose. Additionally, 
the Social Security number card will be marked with a nonwork legend. If 
earnings are reported to SSA on a nonwork Social Security number which 
was assigned under a provision of this section, SSA will inform the 
Immigration and Naturalization Service of the reported earnings.

[56 FR 41790, Aug. 23, 1991]



Sec. 422.105  Presumption of authority of nonimmigrant alien to accept employment.

    The nonimmigrant Form I-94 classifications assigned by the 
Immigration and Naturalization Service shall be used to determine 
whether a nonimmigrant alien is permitted to work. (See 8 CFR 274a.12 
for these classifications.) Permission to work shall not be presumed in 
the case of an alien who has not been issued a Form I-94 or whose Form 
I-94 shows any classification symbol designated and provided by the 
Immigration and Naturalization Service which does not reflect that the 
alien may work.

[44 FR 10371, Feb. 20, 1979; 44 FR 20078, Apr. 4, 1979, as amended at 55 
FR 46665, Nov. 6, 1990]

[[Page 971]]



Sec. 422.106  Filing applications with other government agencies.

    (a) Agreements. In carrying out its responsibilities to assign 
social security numbers, SSA enters into agreements with the United 
States Attorney General and other Federal officials, and with State and 
local welfare agencies and school authorities. Examples of these 
agreements are discussed in paragraphs (b) and (c) of this section.
    (b) Immigration and Naturalization Service. In connection with the 
legalization procedures established pursuant to the Immigration Reform 
and Control Act of 1986, the Immigration and Naturalization Service may 
accept an application for a social security number card from an alien. 
Immigration and Naturalization Service employees who accept such 
applications are authorized to certify that they have reviewed the 
evidence required to be submitted in support of the application. The 
employees will verify age, identity, alien status and work authorization 
of the applicants, and obtain evidence to assist SSA in determining the 
existence of any previously assigned social security number. The 
Immigration and Naturalization Service will then send the application to 
SSA for the issuance of a social security number card.
    (c) States. SSA and a State may enter into an agreement that 
authorizes employees of a State or one of its subdivisions to accept 
social security number card applications from some individuals who apply 
for or are receiving welfare benefits under a State-administered Federal 
program. Under such an agreement, a State employee is also authorized to 
certify the application to show that he or she has reviewed the required 
evidence of the applicant's age, identity, and U.S. citizenship. The 
employee is also authorized to obtain evidence to assist SSA in 
determining whether the applicant has previously been assigned a number. 
The employee will then send the application to SSA which will issue a 
social security number card.

[55 FR 46665, Nov. 6, 1990]



Sec. 422.107  Evidence requirements.

    (a) General. An applicant for an original social security number 
card must submit documentary evidence which the Secretary of Health and 
Human Services regards as convincing evidence of age, U.S. citizenship 
or alien status, and true identity. An applicant for a duplicate or 
corrected social security number card must submit convincing documentary 
evidence of identity and may also be required to submit convincing 
documentary evidence of age and U.S. citizenship or alien status. An 
applicant for an original, duplicate, or corrected social security 
number card is also required to submit evidence to assist the SSA in 
determining the existence and identity of any previously assigned 
number(s). A social security number will not be assigned, or an 
original, duplicate, or corrected card issued, unless all the evidence 
requirements are met. An in-person interview is required of all 
applicants of age 18 or older who apply for an original social security 
number. An in-person interview may also be required of other applicants. 
All documents submitted as evidence must be originals or certified 
copies of the original documents and are subject to verification with 
the custodians of the original records.
    (b) Evidence of age. An applicant for an original social security 
number is required to submit convincing evidence of age. An applicant 
for a duplicate or corrected social security number card may also be 
required to submit evidence of age. Examples of the types of evidence 
which may be submitted are a birth certificate, a religious record 
showing age or date of birth, a hospital record of birth, or a passport. 
(See Sec. 404.716.)
    (c) Evidence of identity. An applicant for an original social 
security number or a duplicate or corrected social security number card 
is required to submit convincing documentary evidence of identity. 
Documentary evidence of identity may consist of a driver's license, 
identity card, school record, medical record, marriage record, passport, 
Immigration and Naturalization Service document, or other similar 
document serving to identify the individual. It is preferable that the 
document contain the applicant's signature

[[Page 972]]

for comparison with his or her signature on the application for a social 
security number. A birth record is not sufficient evidence to establish 
identity. Where the applicant is a child under 7 years of age applying 
for an original social security number card and there is no documentary 
evidence of identity available, the requirement for evidence of identity 
will be waived if there is no reason to doubt the validity of the birth 
record, the social security number application, and the existence of the 
individual. An applicant for a duplicate social security number card who 
is a U.S. citizen and who resides in an area where the Social Security 
Administration is conducting a pilot project on the issuance of 
duplicate cards will not be required to submit a signed application or 
corroborative documentary evidence of identity if the Social Security 
Administration is able to compare information provided by the applicant 
with information already in its records and, on the basis of this 
comparison, decides that corroborative documentary evidence is not 
needed to establish the applicant's identity. These special procedures 
do not apply to foreign-born U.S. citizens who have not already 
submitted evidence of citizenship to us; to a person applying on behalf 
of another if the applicant is not a parent applying on behalf of his or 
her minor child; and to people whose address is an in-care-of address, a 
post office box, general delivery, or a suite.
    (d) Evidence of U.S. citizenship. Generally, an applicant for an 
original, duplicate, or corrected social security number card may prove 
that he or she is a U.S. citizen by birth by submitting a birth 
certificate or other evidence, as described in paragraphs (b) and (c) of 
this section, that shows a U.S. place of birth. Where a foreign-born 
applicant claims U.S. citizenship, the applicant for a social security 
number or a duplicate or corrected social security number card is 
required to present documentary evidence of U.S. citizenship. If 
required evidence is not available, a social security number card will 
not be issued until satisfactory evidence of U.S. citizenship is 
furnished. Any of the following is generally acceptable evidence of U.S. 
citizenship for a foreign-born applicant:
    (1) Certificate of naturalization;
    (2) Certificate of citizenship;
    (3) U.S. passport;
    (4) U.S. citizen identification card issued by the Immigration and 
Naturalization Service;
    (5) Consular report of birth (State Department form FS-240 or FS-
545); or
    (6) Other verification from the Immigration and Naturalization 
Service, U.S. Department of State, or Federal or State court records 
confirming citizenship.
    (e) Evidence of alien status. When a person who is not a U.S. 
citizen applies for an original social security number or a duplicate or 
corrected social security number card, he or she is required to submit, 
as evidence of alien status, a current document issued by the 
Immigration and Naturalization Service in accordance with that agency's 
regulations. The document must show that the applicant has been lawfully 
admitted to the United States, either for permanent residence or under 
authority of law permitting him or her to work in the United States, or 
that the applicant's alien status has changed so that it is lawful for 
him or her to work. If the applicant fails to submit such a document, a 
social security number card will not be issued. If the applicant submits 
an unexpired Immigration and Naturalization Service document(s) which 
shows current authorization to work, a social security number will be 
assigned or verified and a card which can be used for work will be 
issued. If the authorization of the applicant to work is temporary or 
subject to termination by the Immigration and Naturalization Service, 
the SSA records may be so annotated. If the document(s) does not provide 
authorization to work and the applicant wants a social security number 
for a work purpose, no social security number will be assigned. If the 
applicant requests the number for a nonwork purpose, e.g., an Internal 
Revenue Service purpose, the number may be assigned and the card issued 
will be marked with a nonwork legend. The SSA record will be annotated 
to show that a number has been assigned and a card issued for a

[[Page 973]]

nonwork purpose. In that case, if earnings are later reported to SSA, 
the Immigration and Naturalization Service will be notified of the 
report. SSA may also notify that agency if earnings are reported for a 
social security number that was valid for work when assigned but for 
which work authorization expired or was later terminated by the 
Immigration and Naturalization Service. SSA may also annotate the record 
with other remarks, if appropriate.
    (f) Failure to submit evidence. If the applicant does not comply 
with a request for the required evidence or other information within a 
reasonable time, SSA may attempt another contact with the applicant. If 
there is still no response, a social security number card will not be 
issued.
    (g) Invalid or expired documents. SSA will not issue an original, 
duplicate, or corrected social security number card when an applicant 
presents invalid or expired documents. Invalid documents are either 
forged documents that supposedly were issued by the custodian of the 
record, or properly issued documents that were improperly changed after 
they were issued. An expired document is one that was valid for only a 
limited time and that time has passed.

[55 FR 46665, Nov. 6, 1990, as amended at 60 FR 32446, June 22, 1995]



Sec. 422.108  Criminal penalties.

    A person may be subject to criminal penalties for furnishing false 
information in connection with earnings records or for wrongful use or 
misrepresentation in connection with social security numbers, pursuant 
to section 208 of the Social Security Act and sections of title 18 
U.S.C. (42 U.S.C. 408; 18 U.S.C. 1001 and 1546).

[39 FR 10242, Mar. 19, 1974]



Sec. 422.110  Individual's request for change in record.

    Form SS-5 should be completed and signed by any person who wishes to 
change the name or other personal identifying information previously 
submitted in connection with an application for a social security number 
card. The person must prove his or her identity and may be required to 
provide other evidence. (See Sec. 422.107 for evidence requirements.) 
Form SS-5 may be obtained from any local social security office or from 
one of the sources noted in Sec. 422.103(b). The completed request for 
change in records may be submitted to any SSA office, or, if the 
individual is outside the U.S., to the Department of Veterans Affairs 
Regional Office, Manila, Philippines, or to any U.S. foreign service 
post or U.S. military post. If the request is for a change in name, a 
new social security number card with the new name and bearing the same 
number previously assigned will be issued to the person making the 
request.

[55 FR 46666, Nov. 6, 1990]



Sec. 422.112  Employer identification numbers.

    (a) General. Most employers are required by section 6109 of the 
Internal Revenue Code and by Internal Revenue Service (IRS) regulations 
at 26 CFR 31.6011(b)-1 to obtain an employer identification number (EIN) 
and to include it on wage reports filed with SSA. A sole proprietor who 
does not pay wages to one or more employees or who is not required to 
file any pension or excise tax return is not subject to this 
requirement. To apply for an EIN, employers file Form SS-4, 
``Application for Employer Identification Number,'' with the IRS. For 
the convenience of employers, Form SS-4 is available at all SSA and IRS 
offices. Household employers, agricultural employers, and domestic 
corporations which elect social security coverage for employees of 
foreign subsidiaries who are citizens or residents of the U.S. may be 
assigned an EIN by IRS without filing an SS-4.
    (b) State and local governments. To facilitate a State's 
bookkeeping, SSA will assign a special identification number to each 
political subdivision included in a modification to the State's 
agreement under section 218 of the Act. These numbers are not used for 
reporting purposes unless coverage is extended to periods prior to 1987. 
Then, the special number will be assigned and used for reporting the 
pre-1987 wages to SSA. This special number will also be assigned to an 
interstate instrumentality if pre-1987 coverage is

[[Page 974]]

obtained. SSA will inform the appropriate State or interstate 
instrumentality official of the assigned number by sending a Form SSA-
214-CD, ``Notice of Identifying Number.''

[60 FR 42433, Aug. 16, 1995]



Sec. 422.114  Annual wage reporting process.

    (a) General. Under the authority of section 232 of the Act, SSA and 
IRS have entered into an agreement that sets forth the manner by which 
SSA and IRS will ensure that the processing of employee wage reports is 
effective and efficient. Under this agreement, employers are instructed 
by IRS to file annual wage reports with SSA on paper Forms W-2, ``Wage 
and Tax Statement,'' and Forms W-3, ``Transmittal of Income and Tax 
Statements,'' or equivalent W-2 and W-3 magnetic media reports. Special 
versions of these forms for Puerto Rico, Guam, American Samoa, the 
Virgin Islands, and the Commonwealth of the Northern Mariana Islands are 
also filed with SSA. SSA processes all wage reporting forms for updating 
to SSA's earnings records and IRS tax records, identifies employer 
reporting errors and untimely filed forms for IRS penalty assessment 
action, and takes action to correct any reporting errors identified, 
except as provided in paragraph (c) of this section. SSA also processes 
Forms W-3c, ``Transmittal of Corrected Income Tax Statements,'' and W-
2c, ``Statement of Corrected Income and Tax Amounts'' (and their 
magnetic media equivalents) that employers are required to file with SSA 
when certain previous reporting errors are discovered.
    (b) Magnetic media reporting requirements. Under IRS regulations at 
26 CFR 301.6011-2, employers who file 250 or more W-2 wage reports per 
year must file them on magnetic media in accordance with requirements 
provided in SSA publications, unless IRS grants the employer a waiver. 
Basic SSA requirements are set out in SSA's Technical Instruction 
Bulletin No. 4, ``Magnetic Media Reporting.'' Special filing 
requirements for U.S. territorial employers are set out in SSA Technical 
Instruction Bulletins No. 5 (Puerto Rico), No. 6 (Virgin Islands), and 
No. 7 (Guam and American Samoa). At the end of each year, SSA mails 
these technical instructions to employers (or third parties who file 
wage reports on their behalf) for their use in filing wage reports for 
that year.
    (c) Processing late and incorrect magnetic media wage transmittals. 
If an employer's transmittal of magnetic media wage reports is received 
by SSA after the filing due date, SSA will notify IRS of the late filing 
so that IRS can decide whether to assess penalties for late filing, 
pursuant to section 6721 of the Internal Revenue Code. If reports do not 
meet SSA processing requirements (unprocessable reports) or are out of 
balance on critical money amounts, SSA will return them to the employer 
to correct and resubmit. In addition, beginning with wage reports filed 
for tax year 1993, if 90 percent or more of an employer's magnetic media 
wage reports have no social security numbers or incorrect employee names 
or social security numbers so that SSA is unable to credit their wages 
to its records, SSA will not attempt to correct the errors, but will 
instead return the reports to the employer to correct and resubmit (see 
also Sec. 422.120(b)). An employer must correct and resubmit incorrect 
and unprocessable magnetic media wage reports to SSA within 45 days from 
the date of the letter sent with the returned report. Upon request, SSA 
may grant the employer a 15-day extension of the 45-day period. If an 
employer does not submit corrected reports to SSA within the 45-day (or, 
if extended by SSA, 60-day) period, SSA will notify IRS of the late 
filing so that IRS can decide whether to assess a penalty. If an 
employer timely resubmits the reports as corrected magnetic media 
reports, but they are unprocessable or out of balance on W-2 money 
totals, SSA will return the resubmitted reports for the second and last 
time for the employer to correct and return to SSA. SSA will enclose 
with the resubmitted and returned forms a letter informing the employer 
that he or she must correct and return the reports to SSA within 45 days 
or be subject to IRS penalties for late filing.
    (d) Paper form reporting requirements. The format and wage reporting 
instructions for paper forms are determined

[[Page 975]]

jointly by IRS and SSA. Basic instructions on how to complete the forms 
and file them with SSA are provided in IRS forms materials available to 
the public. In addition, SSA provides standards for employers (or third 
parties who file wage reports for them) to follow in producing completed 
reporting forms from computer software; these standards appear in SSA 
publication, ``Software Specifications and Edits for Annual Wage 
Reporting.'' Requests for this publication should be sent to: Social 
Security Administration, Office of Financial Policy and Operations, 
Attention: AWR Software Standards Project, P.O. Box 17195, Baltimore, MD 
21235.
    (e) Processing late and incorrect paper form reports. If SSA 
receives paper form wage reports after the due date, SSA will notify IRS 
of the late filing so that IRS can decide whether to assess penalties 
for late filing, pursuant to section 6721 of the Internal Revenue Code. 
SSA will ask an employer to provide replacement forms for illegible, 
incomplete, or clearly erroneous paper reporting forms, or will ask the 
employer to provide information necessary to process the reports without 
having to resubmit corrected forms. (For wage reports where earnings are 
reported without a social security number or with an incorrect name or 
social security number, see Sec. 422.120.) If an employer fails to 
provide legible, complete, and correct W-2 reports within 45 days, SSA 
may identify the employers to IRS for assessment of employer reporting 
penalties.
    (f) Reconciliation of wage reporting errors. After SSA processes 
wage reports, it matches them with the information provided by employers 
to the IRS on Forms 941, ``Employer's Quarterly Federal Tax Return,'' 
for that tax year. Based upon this match, if the total social security 
or medicare wages reported to SSA for employees is less than the totals 
reported to IRS, SSA will write to the employer and request corrected 
reports or an explanation for the discrepancy. If the total social 
security or medicare wages reported to SSA for employees is more than 
the totals reported to IRS, IRS will resolve the difference with the 
employer. If the employer fails to provide SSA with corrected reports or 
information that shows the wage reports filed with SSA are correct, SSA 
will ask IRS to investigate the employer's wage and tax reports to 
resolve the discrepancy and to assess any appropriate reporting 
penalties.

[60 FR 42433, Aug. 16, 1995]



Sec. 422.120  Earnings reported without a social security number or with an incorrect employee name or social security number.

    (a) Correcting an earnings report. If an employer reports an 
employee's wages to SSA without the employee's social security number or 
with a different employee name or social security number than shown in 
SSA's records for him or her, SSA will write to the employee at the 
address shown on the wage report and request the missing or corrected 
information. If the wage report does not show the employee's address or 
shows an incomplete address, SSA will write to the employer and request 
the missing or corrected employee information. SSA notifies IRS of all 
wage reports filed without employee social security numbers so that IRS 
can decide whether to assess penalties for erroneous filing, pursuant to 
section 6721 of the Internal Revenue Code. If an individual reports 
self-employment income to IRS without a social security number or with a 
different name or social security number than shown in SSA's records, 
SSA will write to the individual and request the missing or corrected 
information. If the employer, employee, or self-employed individual does 
not provide the missing or corrected report information in response to 
SSA's request, the wages or self-employment income cannot be identified 
and credited to the proper individual's earnings records. In such cases, 
the information is maintained in a ``Suspense File'' of uncredited 
earnings. Subsequently, if identifying information is provided to SSA 
for an individual whose report is recorded in the Suspense File, the 
wages or self-employment income then may be credited to his or her 
earnings record.
    (b) Returning incorrect reports. SSA may return to the filer, 
unprocessed,

[[Page 976]]

an employer's annual wage report submittal if 90 percent or more of the 
wage reports in that submittal are unidentified or incorrectly 
identified. In such instances, SSA will advise the filer to return 
corrected wage reports within 45 days to avoid any possible IRS penalty 
assessment for failing to file correct reports timely with SSA. (See 
also Sec. 422.114(c).) Upon request, SSA may grant the employer a 15-day 
extension of the 45-day period.

[60 FR 42434, Aug. 16, 1995]



Sec. 422.122  Information on deferred vested pension benefits.

    (a) Claimants for benefits. Each month, SSA checks the name and 
social security number of each new claimant for social security benefits 
or for hospital insurance coverage to see whether the claimant is listed 
in SSA's electronic pension benefit record. This record contains 
information received from IRS on individuals for whom private pension 
plan administrators have reported to IRS, as required by section 6057 of 
the Internal Revenue Code, as possibly having a right to future 
retirement benefits under the plan. SSA sends a notice to each new 
claimant for whom it has pension benefit information, as required by 
section 1131 of the Act. If the claimant filed for the lump-sum death 
payment on the social security account of a relative, SSA sends the 
claimant the pension information on the deceased individual. In either 
case, SSA sends the notice after it has made a decision on the claim for 
benefits. The notice shows the type, payment frequency, and amount of 
pension benefit, as well as the name and address of the plan 
administrator as reported to the IRS. This information can then be used 
by the claimant to claim any pension benefits still due from the pension 
plan.
    (b) Requesting deferred vested pension benefit information from SSA 
files. Section 1131 of the Act also requires SSA to provide available 
pension benefit information on request. SSA will provide this pension 
benefit information only to the individual who has the pension coverage 
(or a legal guardian or parent, in the case of a minor, on the 
individual's behalf). However, if the individual is deceased, the 
information may be provided to someone who would be eligible for any 
underpayment of benefits that might be due the individual under section 
204(d) of the Act. All requests for such information must be in writing 
and should contain the following information: the individual's name, 
social security number, date of birth, and any information the requestor 
may have concerning the name of the pension plan involved and the month 
and year coverage under the plan ended; the name and address of the 
person to whom the information is to be sent; and the requester's 
signature under the following statement: ``I am the individual to whom 
the information applies (or ``I am related to the individual as his or 
her ____________''). I know that if I make any representation which I 
know is false to obtain information from Social Security records, I 
could be punished by a fine or imprisonment or both.'' Such requests 
should be sent to: Social Security Administration, Office of Central 
Records Operations, P.O. Box 17055, Baltimore, Maryland 21235.

[60 FR 42434, Aug. 16, 1995]



Sec. 422.125  Statements of earnings; resolving earnings discrepancies.

    (a) Obtaining a statement of earnings and estimated benefits. An 
individual may obtain a statement of the earnings on his earnings record 
and an estimate of social security benefits potentially payable on his 
record either by writing, calling, or visiting any social security 
office, or by waiting until we send him one under the procedure 
described in Sec. 404.812 of this chapter. An individual may request 
this statement by completing the proper form or by otherwise providing 
the information the Social Security Administration requires, as 
explained in Sec. 404.810(b) of this chapter.
    (b) Statement of earnings and estimated benefits. Upon receipt of 
such a request or as required by section 1143(c) of the Social Security 
Act, the Social Security Administration will provide the individual, 
without charge, a statement of earnings and benefit estimates or an 
earnings statement. See Secs. 404.811 through 404.812 of this chapter 
concerning the information contained in these statements.

[[Page 977]]

    (c) Detailed earnings statements. A more detailed earnings statement 
will be furnished upon request, generally without charge, where the 
request is program related under Sec. 422.440. If the request for a more 
detailed statement is not program related under Sec. 422.440, a charge 
will be Imposed according to the schedule of fees set out in 
Sec. 422.441.
    (d) Request for revision of earnings records. If an individual 
disagrees with a statement of earnings credited to his social security 
account, he may request a revision by writing to the Bureau of Data 
Processing and Accounts, Social Security Administration, Baltimore, MD 
21235, or by calling at or writing to any social security district 
office or branch office or, if the individual is in the Philippines, by 
calling at or writing to the Veterans' Administration Regional Office, 
Manila, Philippines. Upon receipt of a request for revision, the Social 
Security Administration will initiate an investigation of the 
individual's record of earnings. Form OAR-7008, ``Statement of 
Employment for Wages and Self-Employment,'' is used by the Social 
Security Administration for obtaining information from the individual 
requesting a revision to aid the Administration in the investigation. 
These forms are available at any of the sources listed in this 
paragraph. If an individual receives a Form OAR-7008 from the Bureau of 
Data Processing and Accounts, the completed form should be returned to 
that office. In the course of the investigation the district office or 
branch office, where appropriate, contacts the employer and the employee 
or the self-employed individual, whichever is applicable, for the 
purpose of obtaining the information and evidence necessary to reconcile 
any discrepancy between the allegations of the individual and the 
records of the Administration. See subpart I of part 404 of this chapter 
for requirements for filing requests for revision, and for limitation on 
the revision of records of earnings.
    (e) Notice to individual of determination. After the investigation 
has been completed and a determination affecting the individual's 
earnings record has been made, the Social Security Administration will 
notify the individual in writing of the status of his earnings record 
and inform him at the same time of the determination made in his case 
and of his right to a reconsideration if he is dissatisfied with such 
determination (see Sec. 422.140).
    (f) Notice to individual of adverse adjustment of his account. 
Written notice is given to an individual or his survivor in any case 
where the Social Security Administration adversely adjusts the 
individual's self-employment income. Where, subsequent to the issuance 
of a statement of earnings to an individual, an adverse adjustment is 
made of an amount of wages included in the statement, written notice of 
the adverse adjustment is given to the individual or his survivor. 
Written notice of the adverse adjustment is also given to the survivor 
if the statement of earnings had been given to such survivor. The 
individual or his survivor is requested to notify the Social Security 
Administration promptly if he disagrees, and he is informed that the 
adjustment will become final unless he notifies the Administration of 
his disagreement (if any) within 6 months from the date of the letter, 
or within 3 years, 3 months, and 15 days after the year to which the 
adjustment relates, whichever is later.

[32 FR 13653, Sept. 29, 1967, as amended at 35 FR 7891, May 22, 1970; 35 
FR 8426, May 29, 1970; 39 FR 26721, July 23, 1974; 41 FR 50998, Nov. 19, 
1976; 50 FR 28568, July 15, 1985; 57 FR 54919, Nov. 23, 1992; 61 FR 
18078, Apr. 24, 1996]



Sec. 422.130  Claim procedure.

    (a) General. The Social Security Administration provides facilities 
for the public to file claims and to obtain assistance in completing 
them. An appropriate application form and related forms for use in 
filing a claim for monthly benefits, the establishment of a period of 
disability, a lump-sum death payment, or entitlement to hospital 
insurance benefits or supplementary medical insurance benefits can be 
obtained from any district office, branch office, contact station, or 
resident station of the Social Security Administration, from the 
Division of Foreign Claims, Post Office Box 1756, Baltimore, MD 21203, 
or from the Veteran's Administration Regional Office, Manila, 
Philippines. See Sec. 404.608 of this chapter for offices at which 
applications may be filed. See 42 CFR part 405,

[[Page 978]]

subpart A, for conditions of entitlement to hospital insurance benefits 
and 42 CFR part 405, subpart B, for information relating to enrollment 
under the supplementary medical insurance benefits program.
    (b) Submission of evidence. An individual who files an application 
for monthly benefits, the establishment of a period of disability, a 
lump-sum death payment, or entitlement to hospital insurance benefits or 
supplementary medical insurance benefits, either on his own behalf or on 
behalf of another, must establish by satisfactory evidence the material 
allegations in his application, except as to earnings shown in the 
Social Security Administration's records (see subpart H of part 404 of 
this chapter for evidence requirements in nondisability cases and 
subpart P of part 404 of this chapter for evidence requirements in 
disability cases). Instructions, report forms, and forms for the various 
proofs necessary are available to the public in district offices, branch 
offices, contact stations, and resident stations of the Social Security 
Administration, and the Veteran's Administration Regional Office, 
Manila, Philippines. These offices assist individuals in preparing their 
applications and in obtaining the proofs required in support of their 
applications.
    (c) Determinations and notice to individuals. In the case of an 
application for benefits, the establishment of a period of disability, a 
lump-sum death payment, a recomputation of a primary insurance amount, 
or entitlement to hospital insurance benefits or supplementary medical 
insurance benefits, the Social Security Administration, after obtaining 
the necessary evidence, will make a determination as to the entitlement 
of the individual claiming or for whom is claimed such benefits, and 
will notify the applicant of the determination and of his right to a 
reconsideration if he is dissatisfied with the determination (see 
Sec. 422.140). Also see Sec. 404.1520 of this chapter for a discussion 
of the respective roles of State agencies and the Administration in the 
making of disability determinations and Sec. 404.1521 of this chapter 
for information regarding initial determinations as to entitlement or 
termination of entitlement in disability cases. See section 1869(a) of 
the Social Security Act for determinations under the health insurance 
for the aged program and sections 1816 and 1842 of the Act for the role 
of intermediaries, carriers, and State agencies in performing certain 
functions under such program, e.g., payment of claims pursuant to an 
agreement with the Social Security Administration.

[32 FR 13653, Sept. 29, 1967, as amended at 44 FR 34942, June 18, 1979]



Sec. 422.135  Reports by beneficiaries.

    (a) A recipient of monthly benefits and a person for whom a period 
of disability has been established are obligated to report to the Social 
Security Administration the occurrence of certain events which may 
suspend or terminate benefits or which may cause a cessation of a period 
of disability. (See Secs. 404.419 et seq. and 404.1531 of this chapter.)
    (b) A person who files an application for benefits receives oral and 
written instructions about events which may cause a suspension or 
termination, and also appropriate forms and instruction cards for 
reporting such events. Pursuant to section 203(h)(1)(A) of the Act, 
under certain conditions a beneficiary must, within 3 months and 15 days 
after the close of a taxable year, submit to the Social Security 
Administration and annual report of his earnings and of any substantial 
services in self-employment performed during such taxable year. The 
purpose of the annual report is to furnish the Social Security 
Administration with information for making final adjustments in the 
payment of benefits for that year. An individual may also be requested 
to submit other reports to the Social Security Administration from time 
to time.



Sec. 422.140  Reconsideration of initial determination.

    Any part who is dissatisfied with an initial determination with 
respect to entitlement to monthly benefits, a lump-sum death payment, a 
period of disability, a revision of an earnings record, with respect to 
any other right under title II of the Social Security Act, or with 
respect to entitlement to

[[Page 979]]

hospital insurance benefits or supplementary medical insurance benefits, 
or the amount of hospital insurance benefits, may request that the 
Social Security Administration reconsider such determination. The 
information in Sec. 404.1503 of this chapter as to the respective roles 
of State agencies and the Social Security Administration in the making 
of disability determinations is also generally applicable to the 
reconsideration of initial determinations involving disability. However, 
in cases in which a disability hearing as described in Secs. 404.914 
through 404.918 and 416.1414 through 416.1418 is available, the 
reconsidered determination may be issued by a disability hearing officer 
or by the Director of the Office of Disability Hearings or his or her 
delegate. After such initial determination has been reconsidered, the 
Social Security Administration will mail to each of the parties written 
notice and inform him or her of his right to a hearing before an 
administrative law judge (see Sec. 422.201). Regulations relating to the 
details of reconsideration of initial determinations with respect to 
rights under title II of the Act or with respect to entitlement to 
hospital insurance benefits or supplementary medical insurance benefits 
may be found in part 404, subpart J of this chapter.

[51 FR 308, Jan. 3, 1986]



       Subpart C--Procedures of the Office of Hearings and Appeals

    Authority:  Secs. 205, 221, and 702(a)(5) of the Social Security Act 
(42 U.S.C. 405, 421, and 902(a)(5)); 30 U.S.C. 923(b).



Sec. 422.201  Material included in this subpart.

    This subpart describes in general the procedures relating to 
hearings before an administrative law judge of the Office of Hearings 
and Appeals, review by the Appeals Council of the hearing decision or 
dismissal, and court review. It also describes the procedures for 
requesting such hearing or Appeals Council review, and for instituting a 
civil action for court review. For detailed provisions relating to 
hearings before an administrative law judge, review by the Appeals 
Council, and court review, see the following references as appropriate 
to the matter involved:
    (a) Title II of the Act, Secs. 404.929 through 404.983 of this 
chapter;
    (b) Title XVI of the Act, Secs. 416.1429 through 416.1483 of this 
chapter;
    (c) Title XVIII of the Act, 42 CFR 405.720 through 405.750, 498.17, 
498.40 through 498.95, 417.260 through 417.263, 473.40 through 473.46, 
and 1001.128. For regulations relating to hearings under title XVIII for 
a provider of services dissatisfied with the intermediary's 
determination as to the amount of program reimbursement due to or from 
the provider, see 42 CFR 405.1809 through 405.1890. Such hearings are 
conducted by a hearing officer designated by the intermediary or by the 
Provider Reimbursement Review Board, as appropriate.
    (d) Part B of title IV of the Federal Mine Safety and Health Act of 
1977 as amended, Secs. 410.630 through 410.670.

[41 FR 53791, Dec. 9, 1976, as amended at 44 FR 34942, June 18, 1979; 54 
FR 4268, Jan. 30, 1989]



Sec. 422.203  Hearings.

    (a) Right to request a hearing. (1) After a reconsidered or a 
revised determination (i) of a claim for benefits or any other right 
under title II of the Social Security Act; or (ii) of eligibility or 
amount of benefits or any other matter under title XVI of the Act, 
except where an initial or reconsidered determination involving an 
adverse action is revised, after such revised determination has been 
reconsidered; or (iii) as to entitlement under Part A or Part B of title 
XVIII of the Act, or as to the amount of benefits under Part A of such 
title XVIII (where the amount in controversy is $100 or more); or of 
health services to be provided by a health maintenance organization 
without additional costs (where the amount in controversy is $100 or 
more); or as to the amount of benefits under Part B of title XVIII 
(where the amount in controversy is $500 or more); or as to a 
determination by a peer review organization (PRO) under title XI (where 
the amount in controversy is $200 or more); or as to certain 
determinations made under section 1154, 1842(1), 1866(f)(2), or

[[Page 980]]

1879 of the Act; any party to such a determination may, pursuant to the 
applicable section of the Act, file a written request for a hearing on 
the determination. After a reconsidered determination of a claim for 
benefits under Part B of title IV (Black Lung benefits) of the Federal 
Mine Safety and Health Act of 1977 (30 U.S.C. 921 through 925), a party 
to the determination may file a written request for hearing on the 
determination.
    (2) After (i) a reconsidered or revised determination that an 
institution, facility, agency, or clinic does not qualify as a provider 
of services, or (ii) a determination terminating an agreement with a 
provider of services, such institution, facility, agency, or clinic may, 
pursuant to section 1866 of the Act, file a written request for a 
hearing on the determination.
    (3) After (i) a reconsidered or revised determination that an 
independent laboratory, supplier of portable X-ray services, or end-
stage renal disease treatment facility or other person does not meet the 
conditions for coverage of its services or (ii) a determination that it 
no longer meets such conditions has been made, such laboratory, 
supplier, treatment facility may, under 42 CFR 498.40 of this chapter, 
file a written request for a hearing on the determination. (For hearing 
rights of independent laboratories, suppliers of portable X-ray 
services, and end-stage renal disease treatment facilities and other 
person see 42 CFR 498.5.)
    (b) Request for hearing. (1) A request for a hearing under paragraph 
(a) of this section may be made on Form HA-501, ``Request for Hearing,'' 
or Form HA-501.1, ``Request for Hearing, Part A Hospital Insurance 
Benefits,'' or by any other writing requesting a hearing. The request 
shall be filed at an office of the Social Security Administration, 
usually a district office or a branch office, or at the Veterans' 
Administration Regional Office in the Philippines (except in title XVI 
cases), or at a hearing office of the Office of Hearings and Appeals, or 
with the Appeals Council. A qualified railroad retirement beneficiary 
may, if he prefers, file a request for a hearing under Part A of title 
XVIII with the Railroad Retirement Board. Form HA-501 may be obtained 
from any social security district office or branch office, from the 
Office of Hearings and Appeals, Social Security Administration, P.O. Box 
3200, Arlington, VA 22203, or from any other office where a request for 
a hearing may be filed.
    (2) Unless for good cause shown an extension of time has been 
granted, a request for hearing must be filed within 60 days after the 
receipt of the notice of the reconsidered or revised determination, or 
after an initial determination described in 42 CFR 498.3(b) and (c) (see 
Secs. 404.933, 410.631, and 416.1433 of this chapter and 42 CFR 405.722, 
498.40, and 417.260.)
    (c) Hearing decision or other action. Generally, the administrative 
law judge will either decide the case after hearing (unless hearing is 
waived) or, if appropriate, dismiss the request for hearing. With 
respect to a hearing on a determination under paragraph (a)(1) of this 
section, the administrative law judge may certify the case with a 
recommended decision to the Appeals Council for decision. If the 
determination on which the hearing request is based relates to the 
amount of benefits under Part A or B of title XVIII of the Act, to 
health services to be provided by a health maintenance organization 
without additional costs, or to PRO determinations, the administrative 
law judge shall dismiss the request for hearing if he or she finds that 
the amount in controversy is less than $100 for appeals arising under 
Part A or concerning health maintenance organization benefits; less than 
$200 for appeals arising from PRO determinations; and less than $500 for 
appeals arising under Part B. Hearing decisions must be based on the 
evidence of record, under applicable provisions of the law and 
regulations and appropriate precedents.

[41 FR 53791, Dec. 9, 1976, as amended at 44 FR 34942, June 18, 1979; 51 
FR 308, Jan. 3, 1986; 54 FR 4268, Jan. 30, 1989]



Sec. 422.205  Review by Appeals Council.

    (a) Any party to a hearing decision or dismissal may request a 
review of such action by the Appeals Council. The Health Care Financing 
Administration or, as appropriate, the Office of the Inspector General 
is a party to a hearing

[[Page 981]]

on a determination under Sec. 422.203 (a)(2) and (a)(3) and to 
administrative appeals involving matters under section 1128(b)(6) of the 
Act (see 42 CFR 498.42). This request may be made on Form HA-520, 
``Request for Review of Hearing Decision/Order,'' or by any other 
writing specifically requesting review. Form HA-520 may be obtained from 
any social security district office or branch office, from the Office of 
Hearings and Appeals Social Security Administration, P.O. Box 3200, 
Arlington, VA 22203, or at any other office where a request for a 
hearing may be filed. (For time and place of filing, see Secs. 404.968, 
410.661, and 416.1468 of this chapter, and 42 CFR 405.724, 498.82 and 
417.261.)
    (b) Whenever the Appeals Council reviews a hearing decision under 
Secs. 404.967 or 404.969, 410.662, 416.1467, or 416.1469 of this 
chapter, or 42 CFR 405.724 or 417.261 or 473.46 and the claimant does 
not appear personally or through representation before the Council to 
present oral argument, such review will be conducted by a panel of not 
less than two members of the Council designated in the manner prescribed 
by the Chairman or Deputy Chairman of the Council. In the event of 
disagreement between a panel composed of only two members, the Chairman 
or Deputy Chairman, or his delegate, who must be a member of the 
Council, shall participate as a third member of the panel. When the 
claimant appears in person or through representation before the Council 
in the location designated by the Council, the review will be conducted 
by a panel of not less than three members of the Council designated in 
the manner prescribed by the Chairman or Deputy Chairman. Concurrence of 
a majority of a panel shall constitute the decision of the Appeals 
Council unless the case is considered as provided under paragraph (e) of 
this section.
    (c) The denial of a request for review of a hearing decision 
concerning a determination under Sec. 422.203(a)(1) shall be by such 
appeals officer or appeals officers or by such member or members of the 
Appeals Council as may be designated in the manner prescribed by the 
Chair or Deputy Chair. The denial of a request for review of a hearing 
dismissal, the dismissal of a request for review, the denial of a 
request for review of a hearing decision whenever such hearing decision 
after such denial would not be subject to judicial review as explained 
in Sec. 422.210(a), or the refusal of a request to reopen a hearing or 
Appeals Council decision concerning a determination under 
Sec. 422.203(a)(1) shall be by such member or members of the Appeals 
Council as may be designated in the manner prescribed by the Chair or 
Deputy Chair.
    (d) A review or a denial of review of a hearing decision or a 
dismissal of a request for review with respect to requests by parties 
under 42 CFR 498.82 or 1001.128 in accordance with Sec. 498.83 will be 
conducted by a panel of at least two members of the Appeals Council 
designated by the Chairman or Deputy Chairman and one person from the 
U.S. Public Health Service designated by the Surgeon General, Public 
Health Service, Department of Health and Human Services, or his 
delegate. This person shall serve on an ad hoc basis and shall be 
considered for this purpose as a member of the Appeals Council. 
Concurrence of a majority of the panel shall constitute the decision of 
the Appeals Council unless the case is considered as provided under 
paragraph (e) of this section.
    (e) On call of the Chairman, the Appeals Council may meet en banc or 
a representative body of Appeals Council members may be convened to 
consider any case arising under paragraph (b), (c), or (d) of this 
section. Such representative body shall be comprised of a panel of not 
less than five members designated by the Chairman as deemed appropriate 
for the matter to be considered, including a person from the U.S. Public 
Health Service in a matter under paragraph (d) of this section. The 
Chairman or Deputy Chairman shall preside, or in his absence, the 
Chairman shall designate a member of the Appeals Council to preside. A 
majority vote of the designated panel, or of the members present and 
voting shall constitute the decision of the Appeals Council.
    (f) The Chairman may designate an administrative law judge to serve 
as a member of the Appeals Council for

[[Page 982]]

temporary assignments. An administrative law judge shall not be 
designated to serve as a member on any panel where such panel is 
conducting review on a case in which such individual has been previously 
involved.

[41 FR 53792, Dec. 9, 1976, as amended at 44 FR 34942, June 18, 1979; 54 
FR 4268, Jan. 30, 1989; 60 FR 7120, Feb. 7, 1995]



Sec. 422.210  Judicial review.

    (a) General. A claimant may obtain judicial review of a decision by 
an administrative law judge if the Appeals Council has denied the 
claimant's request for review, or of a decision by the Appeals Council 
when that is the final decision of the Secretary. A claimant may also 
obtain judicial review of a reconsidered determination, or of a decision 
of an administrative law judge, where, under the expedited appeals 
procedure, further administrative review is waived by agreement under 
Secs. 404.926, 410.629d, or 416.1426 of this chapter or 42 CFR 405.718a-
e as appropriate. For judicial review as to the amount of benefits under 
Part A or Part B of title XVIII of the Social Security Act, or of health 
services to be provided by a health maintenance organization without 
additional cost, the amount in controversy must be $1,000 or more as 
provided under section 1869(b) and section 1876(c)(5)(B) of the Act. For 
judicial review of a determination by a PRO, the amount in controversy 
must be $2,000 or more. An institution or agency may obtain judical 
review of a decision by the Appeals Council that it is not a provider of 
services, or of a decision by the Appeals Council terminating an 
agreement entered into by the institution or agency with the Secretary 
(see section 1866(b)(2) of the Act). The Social Security Act does not 
provide for a right to judicial review of a final decision of the 
Secretary regarding the status of an entity which is not a ``provider of 
services'', such as an independent laboratory. Providers of services or 
other persons may seek judicial review of a final administrative 
determination made pursuant to section 1128(b)(6) of the Act. There are 
no amount-in-controversy limitations on these rights of appeal.
    (b) Court in which to institute civil action. Any civil action 
described in paragraph (a) of this section must be instituted in the 
district court of the United States for the judicial district in which 
the claimant resides or where such individual or institution or agency 
has his principal place of business. If the individual does not reside 
within any such judicial district, or if such individual or institution 
or agency does not have his principal place of business within any such 
judicial district, the civil action must be instituted in the District 
Court of the United States for the District of Columbia.
    (c) Time for instituting civil action. Any civil action described in 
paragraph (a) of this section must be instituted within 60 days after 
the Appeals Council's notice of denial of request for review of the 
administrative law judge's decision or notice of the decision by the 
Appeals Council is received by the individual, institution, or agency, 
except that this time may be extended by the Appeals Council upon a 
showing of good cause. For purposes of this section, the date of receipt 
of notice of denial of request for review of the presiding officer's 
decision or notice of the decision by the Appeals Council shall be 
presumed to be 5 days after the date of such notice, unless there is a 
reasonable showing to the contrary. Where pursuant to the expedited 
appeals procedures an agreement has been entered into under 42 CFR 
405.718c, a civil action under section 205(g) of the Act must be 
commenced within 60 days from the date of the signing of such agreement 
by, or on behalf of, the Secretary, except where the time described in 
the first sentence of this paragraph (c) has been extended by the 
Secretary upon a showing of good cause. Where pursuant to the expedited 
appeals procedures an agreement has been entered into under 
Secs. 404.926, 410.629d, or 416.1426 of this chapter, a civil action 
under section 205(g) of the Act must be commenced within 60 days after 
the date the individual receives notice (a signed copy of the agreement 
will be mailed to the individual and will constitute notice) of the 
signing of such agreement by, or on behalf of, the Secretary, except 
where the time described in this paragraph (c) has been extended by the 
Secretary upon a showing of good cause.

[[Page 983]]

    (d) Proper defendant. Where any civil action described in paragraph 
(a) of this section is instituted, the person holding the Office of 
Secretary of Health and Human Services shall, in his official capacity, 
be the proper defendant. Any such civil action properly instituted shall 
survive notwithstanding any change of the person holding the Office of 
Secretary or any vacancy in such office. If the complaint is erroneously 
filed against the United States or against any agency, officer, or 
employee of the United States other than the Secretary, the plaintiff 
will be notified that he has named an incorrect defendant and will be 
granted 60 days from the date of receipt of such notice in which to 
commence the action against the correct defendant, the Secretary.

[41 FR 53792, Dec. 9, 1976, as amended at 44 FR 34942, June 18, 1979; 49 
FR 46370, Nov. 26, 1984; 49 FR 48036, Dec. 10, 1984; 54 FR 4268, Jan. 
30, 1989]



                         Subpart D-E  [Reserved]



                Subpart F--Applications and Related Forms

    Authority:  Secs. 205 and 702(a)(5) of the Social Security Act (42 
U.S.C. 405 and 902(a)(5)). Section 422.512 is also issued under 30 
U.S.C. 901 et seq.



Sec. 422.501  Applications and other forms used in Social Security Administration programs.

    This subpart lists the applications and some of the related forms 
prescribed by the Social Security Administration for use by the public 
in applying for benefits under titles II and XVIII of the Social 
Security Act and the black lung benefits program (Part B, title IV of 
the Federal Coal Mine Health and Safety Act of 1969, as amended).

[38 FR 11450, May 8, 1973]



Sec. 422.505  Applications and related forms for retirement, survivors, and disability insurance programs.

    (a) Applications. To facilitate claims taking, the Social Security 
Administration (SSA) has designed applications to be used by the public 
when claiming benefits under title II of the Social Security Act. 
Prescribed applications include our traditional printed forms and our 
computer printouts. The printouts are similar in content to the 
traditional application, forms, but are produced only after an SSA 
employee has keyed into a computer terminal the answers the applicant 
has given to the relevant questions. The information on the applications 
includes such items as date of birth, family relationship, work history, 
etc. The printout may omit questions that the computer recognizes as 
irrelevant as a result of the answers to other questions. Phrasing may 
differ from that on the traditional printed forms.
    (b) Related forms. The following are some related forms:

SSA-3--Husband's Certification. (For use in connection with Application 
for Wife's Insurance Benefits, Form SSA-2.)
SSA-8a--Supplement to Form SSA-8 (Application for Lump-Sum Death 
Payment). (For use with a funeral home's application for lump-sum death 
payment, Form SSA-8).
SSA-11--Application to be Selected as Payee. (For use when the 
individual proposing to be substituted for current payee files 
application to receive payment of benefits on behalf of himself, a 
disabled child or child under age 22, a student beneficiary, or an 
incompetent beneficiary.)
SSA-15--Wife's Certification. (For use in connection with Application 
for Husband's Insurance Benefits, Form SSA-14.)
SSA-17--Statement Regarding Disability (By Widow, Widower, Surviving 
Divorced Wife, or Child). (For use in connection with a request for 
payment of benefits due to disability by a widow, widower, surviving 
divorced wife, or a child who is age 18 or over and is under a 
disability which began before age 22.)
SSA-21--Supplement to Claim of Person Outside of the United States. (To 
be completed by or on behalf of a person who is, was, or will be outside 
the United States.)
SSA-22--Supplement to Claim on Behalf of Child Outside the United 
States. (To be completed for a child who is, was, or will be outside the 
United States.)
SSA-25--Certificate of Election for Reduced Wife's Benefits. (For use by 
a wife age 62 through 64 who has an entitled child in her care and 
elects to receive reduced benefits for months during which she will not 
have a child in her care.)
SSA-401--Medical History and Disability Report.
SSA-401A--Report of Disability Interview--Widow (Divorced Wife) and 
Widower.

[[Page 984]]

SSA-401CH--Report of Childhood Disability Interview. (Forms SSA-401, 
SSA-401A, and SSA-401CH are for use in documenting a claimant's medical 
history together with the course and effects of the claimant's 
vocational history.)
SSA-717--Statement of Person Requesting Payment on Behalf of Estate.
SSA-718--Consent by Relative for Payment to Individual on Behalf of 
Estate.
SSA-719--Statement of Burial Expenses by Funeral Director. (To be 
completed by the funeral director in connection with an individual's 
(other than a widow or widower who was living in the same household with 
the insured individual at the time of his death) application authorizing 
direct payment of the lump-sum death payment to the funeral director.) 
(See Form SSA-8 under Sec. 422.505(a).)
SSA-721--Statement of Death by Funeral Director. (This form may be used 
as evidence of death (see Sec. 404.704 of this chapter).)
SSA-760--Certificate of Support (Parent's, Husband's, or Widower's).
SSA-766--Statement of Self-Employment Income. (For use by a claimant to 
establish insured status based on self-employment income in the current 
year.)
SSA-780--Certificate of Applicant for Benefits on Behalf of Another. 
(This form accompanies an individual's or institution's request to be 
selected payee for a beneficiary and is used to determine the 
requester's interest in the welfare of the beneficiary.)
SSA-786--Physician's Statement. (For use in requesting medical evidence 
of a beneficiary's capacity to manage benefits.)
SSA-787--Medical Officer's Statement. (For use in requesting medical 
evidence of a beneficiary's capacity to manage benefits from an 
institution.)
SSA-823--Request for Medical Evidence to Hospital or Institution. (For 
use in requesting information regarding hospitalization or treatment of 
a disability claimant.)
SSA-824--Report on Individual With Mental Impairment. (For use in 
requesting information regarding a disability claimant's mental 
impairment.)
SSA-826--Medical Report--General. (For use in obtaining medical 
information concerning a disability claimant.)
SSA-826.1--Medical Report--Pulmonary Tuberculosis. (For use in 
requesting medical evidence from a hospital in which a disability 
claimant is confined for the treatment of tuberculosis.)
SSA-827--Applicant's Request for Medical Information. (To be completed 
by a disability claimant to authorize release of medical information.)
SSA-1001--Statement of Employer. (For use by an employer to provide 
evidence of quarterly wage payments.)
SSA-1002--Statement of Agricultural Employer. (For use by an employer to 
provide evidence of annual wage payments for agricultural work.)
SSA-1372--Student's Statement Regarding School Attendance. (For use in 
connection with a request for payment of child's insurance benefits for 
a child who is age 18 through 21 and a full-time student.)
SSA-1372A--Certification by School Official of Student's Full-time 
Attendance. (For use with requests for child's insurance benefits for 
students age 18 through 21.)
SSA-1372A(F)--Statement to U.S. Social Security Administration by School 
Outside the United States About Student's Attendance. (For use in 
connection with a request for payment of child's insurance benefits for 
a child who is age 18 through 21 and a full-time student outside the 
United States.)
SSA-1388--Report of Student Beneficiary at End of School Year. (For use 
in confirming continuing eligibility to benefits or indicating the need 
for suspension or termination action.)
SSA-1442--Statement by Divorced Woman Regarding Contributions and 
Support From Her Former Husband.
SSA-1724--Claim for Amounts Due in the Case of a Deceased Beneficiary. 
(For use in requesting amounts payable under title II to a deceased 
beneficiary.)
SSA-4111--Certificate of Election for Reduced Widow(er)'s Benefits. (For 
use by applicants for certain reduced widow's or widower's benefits.)
SSA-7156--Farm Self-Employment Questionaire. (For use in connection with 
claims for benefits based on farm income to determine whether the income 
is covered under the Social Security Act.)
SSA-7160--Employment Relationship Questionnaire. (For use by an 
individual and the alleged employer to determine the individual's 
employment status.)
DDS-7163--Questionnaire About Employment or Self-Employment Outside 
United States. (To be completed by or on behalf of a beneficiary who is, 
was, or will be employed or self-employed outside the United States.)
SSA-7203--Sick Pay and Plan or System Questionnaire. (To be completed by 
an employer for the purpose of determining the nature of special 
payments to an employee.)

[38 FR 11450, May 8, 1973, as amended at 51 FR 41952, Nov. 20, 1986; 55 
FR 25826, June 25, 1990]



Sec. 422.510  Applications and related forms used in the health insurance for the aged program.

    (a) Application forms. The following forms are prescribed for use in 
applying

[[Page 985]]

for entitlement to benefits under the health insurance for the aged 
program:

SSA-18--Application for Hospital Insurance Entitlement. (For use by 
individuals who are not entitled to retirement benefits under title II 
of the Social Security Act or under the Railroad Retirement Act. This 
form may also be used for enrollment in the supplementary medical 
insurance benefits plan.)
SSA-40--Application for Enrollment in the Supplementary Medical 
Insurance Program. (This form is mailed directly to beneficiaries at the 
beginning of their initial enrollment period.)
SSA-40A--Application for Enrollment in Supplementary Medical Insurance. 
(For use by civil service employees who are not eligible for enrollment 
in the hospital insurance plan.)
SSA-40B--Application for Medical Insurance. (For general use in 
requesting medical insurance protection.)
SSA-40C--Application for Enrollment. (This form is mailed to 
beneficiaries as a followup on Form SSA-40 (Application for Enrollment 
in the Supplementary Medical Insurance Program).)
SSA-40F--Application for Medical Insurance. (For use by beneficiaries 
residing outside the United States.)


An individual who upon attainment of age 65 is entitled to a monthly 
benefit based on application OA-C1, SSA-2, OA-C7, OA-C10, SSA-10A, OA-
C13, or SSA-14 is automatically entitled to hospital insurance 
protection. (For conditions of entitlement to hospital insurance 
benefits, see 42 CFR part 405, subpart A. For medical insurance 
protection, an applicant must request supplementary medical insurance 
coverage (see Forms SSA-40, SSA-40A, SSA-40B, SSA-40C, and SSA-40F under 
Sec. 422.510(a)). (For conditions of entitlement to supplementary 
medical insurance benefits, see 42 CFR part 405, subpart B.)
    (b) Related forms. The following are the prescribed forms for use in 
requesting payment for services under the hospital insurance benefits 
program and the supplementary medical insurance benefits program and 
other related forms:

SSA-1453--Inpatient Hospital and Extended Care Admission and Billing. 
(To be completed by hospital for payment of hospital expenses for 
treatment of patient confined in hospital.)
SSA-1483--Provider Billing for Medical and Other Health Services. (To be 
completed by hospital for payment of hospital expenses for treatment of 
patient who is not confined in the hospital.)
SSA-1484--Explanation of Accommodation Furnished. (To be completed by 
the hospital to explain accommodation of a patient in other than a 
semiprivate (two- to four-bed) room.)
SSA-1486--Inpatient Admission and Billing--Christian Science Sanatorium. 
(To be completed by a Christian Science sanatorium for payment for 
treatment of patients confined in the sanatorium.)
SSA-1487--Home Health Agency Report and Billing. (For use by an 
organization providing home health services.)
SSA-1490--Request for Medicare Payment. (For use by patient or physician 
to request payment for medical expenses.)
SSA-1554--Provider Billing for Patient Services by Physicians. (For use 
by hospital for payment for services provided by hospital-based 
physicians.)
SSA-1556--Prepayment Plan for Group Medical Practices Dealing Through a 
Carrier. (For use by organizations (which have been determined to be 
group practice prepayment plans for medicare purposes) for reimbursement 
for medical services provided to beneficiaries.)
SSA-1660--Request for Information--Medicare Payment For Services to a 
Patient Now Deceased. (For use in requesting amounts payable under title 
XVIII to a deceased beneficiary.)
SSA-1739--Request for Enrollment Card Information by Foreign 
Beneficiary. (Used to notify beneficiaries approaching age 65 who reside 
in foreign countries that they are eligible to enroll for SMI. They 
return this form if they wish additional information and an application, 
SSA-40F.)
SSA-1966--Health Insurance Card. (This card is issued to a person 
entitled to benefits under the health insurance for the aged program and 
designates whether he is entitled to hospital insurance benefits or 
supplementary medical insurance benefits or both.
SSA-1980--Carrier or Intermediary Request for SSA Assistance.
SSA-2384--Third Party Premium Billing Request. (For use by a 
nonbeneficiary enrollee who must pay premiums by direct remittance and 
is having his premium notices sent to a third party to assure 
continuance of supplementary medical insurance.)

[32 FR 18030, Dec. 16, 1967, as amended at 38 FR 11451, May 8, 1973; 44 
FR 34943, June 18, 1979]

[[Page 986]]



Sec. 422.512  Applications and related forms used in the black lung benefits program.

    (a) Application forms. The following forms are prescribed for use in 
applying for entitlement to benefits under Part B of title IV of the 
Federal Coal Mine Health and Safety Act of 1969, as amended by the Black 
Lung Benefits Act of 1972:

SSA-46--Application for Benefits Under the Federal Coal Mine Health and 
Safety Act of 1969, as Amended (Coal Miner's Claim of Total Disability).
SSA-47--Application for Benefits Under the Federal Coal Mine Health and 
Safety Act of 1969, as Amended (Widow's Claim).
SSA-48--Application for Benefits Under the Federal Coal Mine Health and 
Safety Act of 1969, as Amended (Child's Claim).
SSA-49--Application for Benefits Under the Federal Coal Mine Health and 
Safety Act of 1969, as Amended (Parent's, Brother's and Sister's Claim).

    (b) Related forms. The following are some related forms:

SSA-50--Request To Be Selected as Payee. (For use when the individual 
proposing to be substituted for current payee files application to 
receive payment of black lung benefits on behalf of himself, a disabled 
child or child under age 18, a student beneficiary, or an incompetent 
beneficiary.)
SSA-2179--Report by Person Entitled to Black Lung Benefits. (For use by 
person entitled to black lung benefits to report events which affect 
benefits.)
SAA-2210--Statement of Coal Mine Employment by United Mine Workers of 
America.
SSA-2325--Medical Report (Pneumoconiosis).

[38 FR 11451, May 8, 1973]



Sec. 422.515  Forms used for withdrawal, reconsideration and other appeals, and appointment of representative.

    The following is a list of forms prescribed by the Social Security 
Administration for use by the public to request a withdrawal of an 
application, a reconsideration of an initial determination, a hearing, a 
review of an administrative law judge's decision, or for use where a 
person is authorized to represent a claimant.

SSA-521--Request for Withdrawal of Application. (For use by an 
individual to cancel his application.)
SSA-561--Request for Reconsideration. (For use by an individual who 
disagrees with an initial determination concerning (a) entitlement to 
benefits or any other right under title II of the Social Security Act, 
or (b) entitlement to hospital insurance benefits or supplementary 
medical insurance benefits under title XVIII of the act, or (c) 
entitlement to black lung benefits under title IV of the Federal Coal 
Mine Health and Safety Act. See Sec. 422.140 for a discussion of the 
reconsideration procedure.)
SSA-1696--Appointment of Representative. (For use by person other than 
an attorney authorized by a claimant to act for him in a claim or 
related matter.)
SSA-1763--Request for Termination of Supplementary Medical Insurance. 
(For use by an enrollee in requesting that his supplementary medical 
insurance coverage be terminated.)
SSA-1965--Request for Hearing--Part B Medicare Claim. (For use by an 
individual enrollee or his assignee to obtain a hearing before a hearing 
officer designated by the carrier concerning benefits payable under part 
B of title XVIII.)
HA-501--Request for Hearing. (For use by an individual or institution to 
obtain a hearing on a claim for title II benefits before an 
administrative law judge of the Social Security Administration.)

    Note.--  This form is also used to request a hearing regarding 
entitlement to hospital insurance benefits or supplementary medical 
insurance benefits under title XVIII of the act. (See Sec. 422.203 for a 
discussion of the hearing procedure.)

HA-501.1--Request for Hearing--Part A Health Insurance. (For use by an 
individual or institution to obtain a hearing before an administrative 
law judge of the Social Security Administration concerning the amount of 
hospital insurance benefits under title XVIII.)
HA-512.1--Notice by Attorney of Appointment as Representative. (For use 
by an attorney authorized by a claimant to act for him in a claim or 
related matter.)
HA-520--Request for Review of Hearing Examiner's Action. (For use by an 
individual or institution to obtain a review of a decision by an 
administrative law judge of the Social Security Administration.)

[38 FR 11452, May 8, 1973]



Sec. 422.520  Forms related to maintenance of earnings records.

    The following forms are used by the Social Security Administration 
and by the public in connection with the maintenance of earnings records 
of wage-earners and self-employed persons:

SS-4--Application for Employer Identification Number.
SS-4A--Agricultural Employer's Application. (For use by employers of 
agricultural

[[Page 987]]

workers to request an employer identification number under the FICA.)
SS-5--Application for a Social Security Number (or Replacement of Lost 
Card).
SS-15--Certificate Waiving Exemption From Taxes Under the FICA. (For use 
by certain nonprofit organizations requesting coverage of its 
employees.)
SS-15a--List of Concurring Employees. (To be signed by each employee who 
concurs in the filing of the Certificate Waiving Exemption From Taxes 
Under the FICA, Form SS-15.)
SSI-21--Social Security and Your Household Employee. (For use by 
employers of household workers to request information from the Internal 
Revenue Service Center regarding filing employee tax returns.)
OA-702--Social Security Number Card.
Form 2031--Waiver Certificate To Elect Social Security Coverage for Use 
by Ministers, Certain Members of Religious Orders, and Christian Science 
Practitioners.
Form 4029--Application for Exemption from Tax on Self-Employment Income 
and Waiver of Benefits. (To be completed by self-employed individuals 
who are members of certain recognized religious sects (or division 
thereof) and do not wish to pay FICA taxes or participate in the 
programs provided under titles II and XVIII.)
Form 4361--Application for Exemption From Self-Employment Tax for Use by 
Ministers, Members of Religious Orders, and Christian Science 
Practitioners.
Form 4415--Election To Exempt From Self-Employment Coverage Fees 
Received by Certain Public Officers and Employees of a State or 
Political Subdivision Thereof.
OAAN-5028--Evidence of Application for Social Security Number Card.
OAAN-7003--Request for Change in Social Security Records. (For use by an 
individual to change information given on original application for a 
social security number.)
OAR-7004--Request for Statement of Earnings. (For use by worker to 
obtain a statement of earnings recorded in his earnings record.)
OAR-7008--Request for Correction of Earnings Record. (For use by an 
individual who wishes to have his earnings record revised.)
SSA-7011--Statement of Employer. (For use by an employer to provide 
evidence of wage payments in cases of a wage discrepancy in an 
individual's earnings record.)

[38 FR 11452, May 8, 1973]



Sec. 422.525  Where applications and other forms are available.

    All applications and related forms prescribed for use in the 
programs administered by the Social Security Administration pursuant to 
the provisions of titles II and XVIII of the act, and Part B of title IV 
of the Federal Coal Mine Health and Safety Act of 1969 are printed under 
the specifications of the Administration and distributed free of charge 
to the public, institutions, or organizations for the purposes described 
therein. All prescribed forms can be obtained upon request from any 
social security district office or branch office (see Sec. 422.5). Forms 
appropriate for use in requesting payment for services provided under 
the health insurance for the aged and disabled programs can also be 
obtained from the intermediaries or carriers (organizations under 
contract with the Social Security Administration to make payment for 
such services) without charge. Form 2031 (Waiver Certificate to Elect 
Social Security Coverage for Use by Ministers, Certain Members of 
Religious Orders, and Christian Science Practitioners), Form 4029 
(Application for Exemption From Tax on Self-Employment Income and Waiver 
of Benefits), Form 4361 (Application for Exemption From Self-Employment 
Tax for Use by Ministers, Members of Religious Orders, and Christian 
Science Practitioners), Form 4415 (Election to Exempt From Self-
Employment Coverage Fees Received by Certain Public Officers and 
Employees of a State or a Political Subdivision Thereof), Form SS-4 
(Application for Employer Identification Number), Form SS-4A 
(Agricultural Employer's Application for Identification Number), Form 
SS-5 (Application for a Social Security Number (or Replacement of Lost 
Card)), Form SS-15 (Certificate Waiving Exemption From Taxes Under the 
FICA), and Form SS-15a (List of Concurring Employees) can also be 
obtained without charge from offices of the Internal Revenue Service. 
For other offices where applications and certain other forms can be 
obtained, see subparts B and C of this part 422.

[38 FR 11452, May 8, 1973]



Sec. 422.527  Private printing and modification of prescribed applications and other forms.

    Any person, institution, or organization wishing to reproduce, 
duplicate, or privately print any application or

[[Page 988]]

other form prescribed by the Administration should obtain the prior 
approval of the Administration. Requests for approval to so reproduce 
any prescribed form must be in writing and include the reason or need 
for such reproduction, the intended user of the form, the proposed 
modifications, if any, the proposed format, with printing or other 
specifications, the type of automatic data processing machinery (e.g., 
printer, burster, mail handling), if any, for which the form is being 
designed, estimated printing quantity, estimated cost per thousand, 
estimated annual usage, and such other pertinent information as may be 
required by the Administration. All requests are to be forwarded to: 
Social Security Administration, Printing and Records Management Branch, 
Baltimore, MD 21235.

[33 FR 11281, Aug. 8, 1968]



Subpart G--Administrative Review Process Under the Coal Industry Retiree 
                       Health Benefit Act of 1992

    Authority:  26 U.S.C. 9701-9708.

    Source:  58 FR 52916, Oct. 13, 1993, unless otherwise noted.



Sec. 422.601  Scope and purpose.

    The regulations in this subpart describe how the Social Security 
Administration (SSA) will conduct reviews of assignments it makes under 
provisions of the Coal Industry Retiree Health Benefit Act of 1992 (the 
Coal Act). Under the Coal Act, certain retired coal miners and their 
eligible family members (beneficiaries) are assigned to particular coal 
operators (or related persons). These operators are then responsible for 
paying the annual health and death benefit premiums for these 
beneficiaries as well as the annual premiums for certain unassigned coal 
miners and eligible members of their families. We will notify the 
assigned operators of these assignments and give each operator an 
opportunity to request detailed information about an assignment and to 
request review of an assignment. We also inform the United Mine Workers 
of America (UMWA) Combined Benefit Fund Trustees of each assignment made 
and the unassigned beneficiaries so they can assess appropriate annual 
premiums against the assigned operators. This subpart explains how 
assigned operators may request such additional information, how they may 
request review of an assignment, and how reviews will be conducted.



Sec. 422.602  Terms used in this subpart.

    Assignment means our selection of the coal operator or related 
person to be charged with the responsibility of paying the annual health 
and death benefit premiums of certain coal miners and their eligible 
family members.
    Beneficiary means either a coal industry retiree who, on July 20, 
1992, was eligible to receive, and receiving, benefits as an eligible 
individual under the 1950 or the 1974 UMWA Benefit Plan, or an 
individual who was eligible to receive, and receiving, benefits on July 
20, 1992 as an eligible relative of a coal industry retiree.
    Evidence of a prima facie case of error means documentary evidence, 
records, and written statements submitted to us by the assigned operator 
(or related person) that, standing alone, shows our assignment was in 
error. The evidence submitted must, when considered by itself without 
reference to other contradictory evidence that may be in our possession, 
be sufficient to persuade a reasonable person that the assignment was 
erroneous. Examples of evidence that may establish a prima facie case of 
error include copies of Federal, State, or local government tax records; 
legal documents such as business incorporation, merger, and bankruptcy 
papers; health and safety reports filed with Federal or State agencies 
that regulate mining activities; payroll and other employment business 
records; and information provided in trade journals and newspapers.
    A related person to a signatory operator means a person or entity 
which as of July 20, 1992, or, if earlier, the time immediately before 
the coal operator ceased to be in business, was a member of a controlled 
group of corporations which included the signatory operator, or was a 
trade or business which was under common control with a signatory 
operator, or had a partnership interest (other than as a limited 
partner)

[[Page 989]]

or joint venture with a signatory operator in a business within the coal 
industry which employed eligible beneficiaries, or is a successor in 
interest to a person who was a related person.
    We or us refers to the Social Security Administration, or the 
Secretary of Health and Human Services or the Secretary's delegate, as 
appropriate.
    You as used in this subpart refers to the coal operator (or related 
person) assigned premium responsibility for a specific beneficiary under 
the Coal Act.



Sec. 422.603  Overview of the review process.

    Our notice of assignment will inform you as the assigned operator 
(or related person) which beneficiaries have been assigned to you, the 
reason for the assignment, and the dates of employment on which the 
assignment was based. The notice will explain that, if you disagree with 
the assignment for any beneficiary listed in the notice of assignment, 
you may request from us detailed information as to the work history of 
the miner and the basis for the assignment. Such request must be filed 
with us within 30 days after you receive the notice of assignment, as 
explained in Sec. 422.604. The notice will also explain that if you 
still disagree with the assignment after you have received the detailed 
information, you may submit evidence that shows there is a prima facie 
case of error in that assignment and request review. Such request must 
be filed with us within 30 days after you receive the detailed 
information, as explained in Sec. 422.605. Alternatively, you may 
request review within 30 days after you receive the notice of 
assignment, even if you have not first requested the detailed 
information. In that case, you still may request the detailed 
information within that 30-day period. (See Sec. 422.606(c) for further 
details.)



Sec. 422.604  Request for detailed information.

    (a) General. After you receive our notice of assignment listing the 
beneficiaries for whom you have premium responsibility, you may request 
detailed information as to the work histories of any of the listed 
miners and the basis for the assignment. Your request for detailed 
information must:
    (1) Be in writing;
    (2) Be filed with us within 30 days of receipt of that notice of 
assignment. Unless you submit evidence showing a later receipt of the 
notice, we will assume the notice was received by you within 5 days of 
the date appearing on the notice. We will consider the request to be 
filed as of the date we receive it. However, if we receive the request 
after the 30-day period, the postmark date on the envelope may be used 
as the filing date. If there is no postmark or the postmark is 
illegible, the filing date will be deemed to be the fifth day prior to 
the day we received the request; and
    (3) Identify the individual miners about whom you are requesting the 
detailed information.
    (b) The detailed information we will provide. We will send you 
detailed information as to the work history and the basis for the 
assignment for each miner about whom you requested such information. 
This information will include the name and address of each employer for 
whom the miner has worked since 1978 or since 1946 (whichever period is 
appropriate), the amount of wages paid by each employer and the period 
for which the wages were reported. We will send you the detailed 
information with a notice informing you that you have 30 days from the 
date you receive the information to submit to SSA evidence of a prima 
facie case of error (as defined in Sec. 422.602) and request review of 
the assignment if you have not already requested review. The notice will 
also inform you that, if you are seeking evidence to make a case of 
prima facie error, you may include with a timely filed request for 
review a written request for additional time to obtain and submit such 
evidence to us. Under these circumstances, you will have 90 days from 
the date of your request to submit the evidence before we determine 
whether we will review the assignment.



Sec. 422.605  Request for review.

    We will review an assignment if you request review and show that 
there is a prima facie case of error regarding the assignment. This 
review is a review on

[[Page 990]]

the record and will not entail a face-to-face hearing. We will review an 
assignment if:
    (a) You are an assigned operator (or related person);
    (b) Your request is in writing and states your reasons for believing 
the assignment is erroneous;
    (c) Your request is filed with us no later than 30 days from the 
date you received the detailed information described in Sec. 422.604, or 
no later than 30 days from the date you received the notice of 
assignment if you choose not to request detailed information. Unless you 
submit evidence showing a later receipt of the notice, we will assume 
you received the detailed information or the notice of assignment within 
5 days of the date shown thereon. We will consider the request to be 
filed as of the date we receive it. However, if we receive the request 
after the 30-day period, the postmark date on the envelope may be used 
as the filing date. If there is no postmark or the postmark is 
illegible, the filing date will be deemed to be the fifth day prior to 
the day we received the request; and
    (d) Your request is accompanied by evidence establishing a prima 
facie case of error regarding the assignment. If your request for review 
includes a request for additional time to submit such evidence, we will 
give you an additional 90 days from the date of your request for review 
to submit such evidence to us.



Sec. 422.606  Processing the request for review.

    Upon receipt of your written request for review of an assignment and 
where relevant, the expiration of any additional times allowed under 
Secs. 422.605(d) and 422.606(c), we will take the following action:
    (a) Request not timely filed. If your request is not filed within 
the time limits set out in Sec. 422.605(c), we will deny your request 
for review on that basis and send you a notice explaining that we have 
taken this action;
    (b) Lack of evidence. If your request is timely filed under 
Sec. 422.605(c) but you have not provided evidence constituting a prima 
facie case of error, we will deny your request for review on that basis 
and send you a notice explaining that we have taken this action;
    (c) Request for review without requesting detailed information. If 
your request is filed within 30 days after you received the notice of 
assignment and you have not requested detailed information, we will not 
process your request until at least 30 days after the date you received 
the notice of assignment. You may still request detailed information 
within that 30-day period, in which case we will not process your 
request for review until at least 30 days after you received the 
detailed information, so that you may submit additional evidence if you 
wish;
    (d) Reviewing the evidence. If your request meets the filing 
requirements of Sec. 422.605 and is accompanied by evidence constituting 
a prima facie case of error, we will review the assignment. We will 
review all evidence submitted with your request for review, together 
with the evidence used in making the assignment. An SSA employee who was 
not involved in the original assignment will perform the review. The 
review will be a review on the record and will not involve a face-to-
face hearing.
    (e) Original decision correct. If, following this review of the 
evidence you have submitted and the evidence in our file, we make a 
determination that the assignment is correct, we will send you a notice 
explaining the basis for our decision. We will not review the decision 
again, except as provided in Sec. 422.607.
    (f) Original decision erroneous. If, following this review of the 
evidence you have submitted and the evidence in our file, we make a 
determination that the assignment is erroneous, we will send you a 
notice to this effect. We will then determine who the correct operator 
is and assign the affected beneficiary(s) to that coal operator (or 
related person). If no assigned operator can be identified, the affected 
beneficiary(s) will be treated as ``unassigned.'' We will notify the 
UMWA Combined Benefit Fund Trustees of the review decision so that any 
premium liability of the initial assigned operator can be adjusted.

[[Page 991]]



Sec. 422.607  Limited reopening of assignments.

    On our own initiative, we may reopen and revise an assignment, 
whether or not it has been reviewed as described in this subpart, under 
the following conditions:
    (a) The assignment reflects an error on the face of our records or 
the assignment was based upon fraud; and
    (b) We sent to the assigned operator (or related person) notice of 
the assignment within 12 months of the time we decided to reopen that 
assignment.



PART 423--SERVICE OF PROCESS--Table of Contents




Sec.
423.1  Suits against the Social Security Administration and its 
          employees in their official capacities.
423.3  Other process directed to the Social Security Administration or 
          the Commissioner.
423.5  Process against Social Security Administration officials in their 
          individual capacities.
423.7  Acknowledgment of mailed process.
423.9  Effect of regulations in this part.

    Authority:  Sec. 701 and 702(a)(5) of the Social Security Act (42 
U.S.C. 901 and 902(a)(5)).

    Source:  60 FR 18992, Apr. 14, 1995, unless otherwise noted.



Sec. 423.1  Suits against the Social Security Administration and its employees in their official capacities.

    Summonses and complaints to be served by mail on the Social Security 
Administration, the Commissioner of Social Security, or other employees 
of the Social Security Administration in their official capacities 
should be sent to the General Counsel, Social Security Administration, 
Room 611, Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 
21235.



Sec. 423.3  Other process directed to the Social Security Administration or the Commissioner.

    Subpoenas and other process (other than summonses and complaints) 
that are required to be served on the Social Security Administration or 
the Commissioner of Social Security in his or her official capacity 
should be served as follows:
    (a) If authorized by law to be served by mail, any mailed process 
should be sent to the General Counsel, Social Security Administration, 
Room 611, Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 
21235.
    (b) If served by an individual, the process should be delivered to 
the mail room staff in the Office of the General Counsel, Room 611, 6401 
Security Blvd., Baltimore, MD 21235 or, in the absence of that staff, to 
any Deputy General Counsel or secretary to any Deputy General Counsel of 
the Social Security Administration.



Sec. 423.5  Process against Social Security Administration officials in their individual capacities.

    Process to be served on Social Security Administration officials in 
their individual capacities must be served in compliance with the 
requirements for service of process on individuals who are not 
governmental officials. The Office of the General Counsel is authorized 
but not required to accept process to be served on Social Security 
Administration officials in their individual capacities if the suit 
relates to an employee's official duties.



Sec. 423.7  Acknowledgment of mailed process.

    The Social Security Administration will not provide a receipt or 
other acknowledgment of process received, except for a return receipt 
associated with certified mail and, where required, the acknowledgment 
described in rule 4(e) of the Federal Rules of Civil Procedure (28 
U.S.C. App. 4(e)).



Sec. 423.9  Effect of regulations in this part.

    The regulations in this part are intended solely to identify Social 
Security Administration officials who are authorized to accept service 
of process. Litigants must comply with all requirements pertaining to 
service of process that are established by statute and court rule even 
though they are not repeated in this part.

[[Page 992]]





PARTS 424--497  [RESERVED]






PART 498--CIVIL MONETARY PENALTIES, ASSESSMENTS AND RECOMMENDED EXCLUSIONS--Table of Contents




Sec.
498.100  Basis and purpose.
498.101  Definitions.
498.102  Basis for civil monetary penalties and assessments.
498.103  Amount of penalty.
498.104  Amount of assessment.
498.105  [Reserved]
498.106  Determinations regarding the amount or scope of penalties and 
          assessments.
498.107  [Reserved]
498.108  Penalty and assessment not exclusive.
498.109  Notice of proposed determination.
498.110  Failure to request a hearing.
498.114  Collateral estoppel.
498.115-498.125  [Reserved]
498.126  Settlement.
498.127  Judicial review.
498.128  Collection of penalty and assessment.
498.129  Notice to other agencies.
498.132  Limitations.
498.201  Definitions.
498.202  Hearing before an administrative law judge.
498.203  Rights of parties.
498.204  Authority of the administrative law judge.
498.205  Ex parte contacts.
498.206  Prehearing conferences.
498.207  Discovery.
498.208  Exchange of witness lists, witness statements and exhibits.
498.209  Subpoenas for attendance at hearing.
498.210  Fees.
498.211  Form, filing and service of papers.
498.212  Computation of time.
498.213  Motions.
498.214  Sanctions.
498.215  The hearing and burden of proof.
498.216  Witnesses.
498.217  Evidence.
498.218  The record.
498.219  Post-hearing briefs.
498.220  Initial decision.
498.221  Appeal to DAB.
498.222  Final decision of the Commissioner.
498.223  Stay of initial decision.
498.224  Harmless error.

    Authority:  Secs. 702(a)(5), 1129, and 1140 of the Social Security 
Act (42 U.S.C. 902(a)(5), 1320a-8, and 1320b-10).

    Source:  60 FR 58226, Nov. 27, 1995, unless otherwise noted.



Sec. 498.100  Basis and purpose.

    (a) Basis. This part implements sections 1129 and 1140 of the Social 
Security Act (42 U.S.C. 1320a-8 and 1320b-10).
    (b) Purpose. This part provides for the imposition of civil monetary 
penalties and assessments, as applicable, against persons who--
    (1) Make or cause to be made false statements or representations, or 
omissions of material fact for use in determining any right to or amount 
of benefits under title II or benefits or payments under title XVI of 
the Social Security Act; or
    (2) Misuse certain Social Security program words, letters, symbols, 
and emblems.

[60 FR 58226, Nov. 27, 1995, as amended at 61 FR 18079, Apr. 24, 1996]



Sec. 498.101  Definitions.

    As used in this part:
    Agency means the Social Security Administration.
    Assessment means the amount described in Sec. 498.104, and includes 
the plural of that term.
    Commissioner means the Commissioner of Social Security or his or her 
designees.
    Department means the U.S. Department of Health and Human Services.
    General Counsel means the General Counsel of the Social Security 
Administration or his or her designees.
    Inspector General means the Inspector General of the Social Security 
Administration or his or her designees.
    Material fact means a fact which the Commissioner of Social Security 
may consider in evaluating whether an applicant is entitled to benefits 
under title II or eligible for benefits or payments under title XVI of 
the Social Security Act.
    Penalty means the amount described in Sec. 498.103 and includes the 
plural of that term.
    Person means an individual, organization, agency, or other entity.
    Respondent means the person upon whom the Commissioner or the 
Inspector General has imposed, or intends to impose, a penalty and 
assessment, as applicable.

[[Page 993]]

    Secretary means the Secretary of the U.S. Department of Health and 
Human Services or his or her designees.
    SSA means the Social Security Administration.
    SSI means Supplemental Security Income.

[60 FR 58226, Nov. 27, 1995, as amended at 61 FR 18079, Apr. 24, 1996]



Sec. 498.102  Basis for civil monetary penalties and assessments.

    (a) The Office of the Inspector General may impose a penalty and 
assessment, as applicable, against any person whom it determines in 
accordance with this part--
    (1) Has made, or caused to be made, a statement or representation of 
a material fact for use in determining any initial or continuing right 
to or amount of:
    (i) Monthly insurance benefits under title II of the Social Security 
Act; or
    (ii) Benefits or payments under title XVI of the Social Security 
Act; and
    (2)(i) Knew, or should have known, that the statement or 
representation--
    (A) Was false or misleading; or
    (B) Omitted a material fact; or
    (ii) Made such statement with knowing disregard for the truth.
    (b) The Office of the Inspector General may impose a penalty against 
any person whom it determines in accordance with this part has made use 
of certain Social Security program words, letters, symbols, or emblems 
in such a manner that they knew or should have known would convey, or in 
a manner which reasonably could be interpreted or construed as 
conveying, the false impression that an advertisement or other item was 
authorized, approved, or endorsed by the Social Security Administration, 
or that such person has some connection with, or authorization from, the 
Social Security Administration.
    (1) Civil monetary penalties may be imposed for misuse, as set forth 
in Sec. 498.102(b), of--
    (i) The words ``Social Security,'' ``Social Security Account,'' 
``Social Security Administration,'' ``Social Security System,'' 
``Supplemental Security Income Program,'' or any combination or 
variation of such words; or
    (ii) The letters ``SSA,'' or ``SSI,'' or any other combination or 
variation of such letters; or
    (iii) A symbol or emblem of the Social Security Administration 
(including the design of, or a reasonable facsimile of the design of, 
the Social Security card, the check used for payment of benefits under 
title II, or envelopes or other stationery used by the Social Security 
Administration), or any other combination or variation of such symbols 
or emblems.
    (2) Civil monetary penalties will not be imposed against any agency 
or instrumentality of a State, or political subdivision of a State, that 
makes use of any symbol or emblem, or any words or letters which 
identify that agency or instrumentality of the State or political 
subdivision.
    (c) The use of a disclaimer of affiliation with the United States 
Government, the Social Security Administration or its programs, or any 
other agency or instrumentality of the United States Government, will 
not be considered as a defense in determining a violation of section 
1140 of the Social Security Act.

[60 FR 58226, Nov. 27, 1995, as amended at 61 FR 18079, Apr. 24, 1996]



Sec. 498.103  Amount of penalty.

    (a) Under Sec. 498.102(a), the Office of the Inspector General may 
impose a penalty of not more than $5,000 for each false statement or 
representation.
    (b) Under section Sec. 498.102(b), the Office of the Inspector 
General may impose a penalty of not more than $5,000 for each violation 
resulting from the misuse of Social Security Administration program 
words, letters, symbols, or emblems relating to printed media, and a 
penalty of not more than $25,000 in the case of such misuse related to a 
broadcast or telecast.
    (c) For purposes of paragraph (b) of this section, a violation is 
defined as--
    (1) In the case of a direct mailing solicitation or advertisement, 
each separate piece of mail which contains one or more program words, 
letters, symbols, or emblems related to a determination under 
Sec. 498.102(b); and

[[Page 994]]

    (2) In the case of a broadcast or telecast, each airing of a single 
commercial or solicitation related to a determination under 
Sec. 498.102(b).

[60 FR 58226, Nov. 27, 1995, as amended at 61 FR 18080, Apr. 24, 1996]



Sec. 498.104  Amount of assessment.

    A person subject to a penalty determined under Sec. 498.102(a) may 
be subject, in addition, to an assessment of not more than twice the 
amount of benefits or payments paid as a result of the statement or 
representation which was the basis for the penalty. An assessment is in 
lieu of damages sustained by the United States because of such statement 
or representation.

[61 FR 18080, Apr. 24, 1996]



Sec. 498.105  [Reserved]



Sec. 498.106  Determinations regarding the amount or scope of penalties and assessments.

    (a) In determining the amount or scope of any penalty and 
assessment, as applicable, in accordance with Secs. 498.103(a) and 
498.104, the Office of the Inspector General will take into account:
    (1) The nature of the statements and representations referred to in 
Sec. 498.102(a) and the circumstances under which they occurred;
    (2) The degree of culpability of the person committing the offense;
    (3) The history of prior offenses of the person committing the 
offense;
    (4) The financial condition of the person committing the offense; 
and
    (5) Such other matters as justice may require.
    (b) In determining the amount of any penalty in accordance with 
Sec. 498.103(b), the Office of the Inspector General will take into 
account--
    (1) The nature and objective of the advertisement, solicitation, or 
other communication, and the circumstances under which they were 
presented;
    (2) The frequency and scope of the violation, and whether a specific 
segment of the population was targeted;
    (3) The prior history of the individual, organization, or entity in 
their willingness or refusal to comply with informal requests to correct 
violations;
    (4) The history of prior offenses of the individual, organization, 
or entity in their misuse of program words, letters, symbols, and 
emblems;
    (5) The financial condition of the individual or entity; and
    (6) Such other matters as justice may require.
    (c) In cases brought under section 1140 of the Social Security Act, 
the use of a disclaimer of affiliation with the United States 
Government, the Social Security Administration or its programs will not 
be considered as a mitigating factor in determining the amount of a 
penalty in accordance with Sec. 498.106.

[60 FR 58226, Nov. 27, 1995, as amended at 61 FR 18080, Apr. 24, 1996]



Sec. 498.107  [Reserved]



Sec. 498.108  Penalty and assessment not exclusive.

    Penalties and assessments, as applicable, imposed under this part 
are in addition to any other penalties prescribed by law.

[61 FR 18080, Apr. 24, 1996]



Sec. 498.109  Notice of proposed determination.

    (a) If the Office of the Inspector General seeks to impose a penalty 
and assessment, as applicable, it will serve written notice of the 
intent to take such action. The notice will include:
    (1) Reference to the statutory basis for the proposed penalty and 
assessment, as applicable;
    (2) A description of the false statements, representations, and 
incidents, as applicable, with respect to which the penalty and 
assessment, as applicable, are proposed;
    (3) The amount of the proposed penalty and assessment, as 
applicable;
    (4) Any circumstances described in Sec. 498.106 that were considered 
when determining the amount of the proposed penalty and assessment, as 
applicable; and
    (5) Instructions for responding to the notice, including
    (i) A specific statement of respondent's right to a hearing; and
    (ii) A statement that failure to request a hearing within 60 days 
permits the imposition of the proposed penalty

[[Page 995]]

and assessment, as applicable, without right of appeal.
    (b) Any person upon whom the Office of the Inspector General has 
proposed the imposition of a penalty and assessment, as applicable, may 
request a hearing on such proposed penalty and assessment.
    (c) If the respondent fails to exercise the respondent's right to a 
hearing within the time permitted under this section, and does not 
demonstrate good cause for such failure before an administrative law 
judge, any penalty and assessment, as applicable, becomes final.

[61 FR 18080, Apr. 24, 1996]



Sec. 498.110  Failure to request a hearing.

    If the respondent does not request a hearing within the time 
prescribed by Sec. 498.109(a), the Office of the Inspector General may 
seek the proposed penalty and assessment, as applicable, or any less 
severe penalty and assessment. The Office of the Inspector General shall 
notify the respondent by certified mail, return receipt requested, of 
any penalty and assessment, as applicable, that has been imposed and of 
the means by which the respondent may satisfy the amount owed.

[61 FR 18080, Apr. 24, 1996]



Sec. 498.114  Collateral estoppel.

    In a proceeding under section 1129 of the Social Security Act that--
    (a) Is against a person who has been convicted (whether upon a 
verdict after trial or upon a plea of guilty or nolo contendere) of a 
Federal or State crime charging fraud or false statements; and
    (b) Involves the same transactions as in the criminal action, the 
person is estopped from denying the essential elements of the criminal 
offense.

[61 FR 18080, Apr. 24, 1996]



Secs. 498.115-498.125  [Reserved]



Sec. 498.126  Settlement.

    The Inspector General has exclusive authority to settle any issues 
or case, without the consent of the administrative law judge or the 
Commissioner, at any time prior to a final determination. Thereafter, 
the Commissioner or his or her designee has such exclusive authority.



Sec. 498.127  Judicial review.

    Sections 1129 and 1140 of the Social Security Act authorize judicial 
review of any penalty and assessment, as applicable, that has become 
final. Judicial review may be sought by a respondent only in regard to a 
penalty and assessment, as applicable, with respect to which the 
respondent requested a hearing, unless the failure or neglect to urge 
such objection is excused by the court because of extraordinary 
circumstances.

[61 FR 18080, Apr. 24, 1996]



Sec. 498.128  Collection of penalty and assessment.

    (a) Once a determination has become final, collection of any penalty 
and assessment, as applicable, will be the responsibility of the 
Commissioner or his or her designee.
    (b) In cases brought under section 1129 of the Social Security Act, 
a penalty and assessment, as applicable, imposed under this part may be 
compromised by the Commissioner or his or her designee, and may be 
recovered in a civil action brought in the United States District Court 
for the district where the statement or representation referred to in 
Sec. 498.102(a) was made, or where the respondent resides.
    (c) In cases brought under section 1140 of the Social Security Act, 
a penalty imposed under this part may be compromised by the Commissioner 
or his or her designee and may be recovered in a civil action brought in 
the United States district court for the district where, as determined 
by the Commissioner, the:
    (1) Violation referred to in Sec. 498.102(b) occurred; or
    (2) Respondent resides; or
    (3) Respondent has its principal office; or
    (4) Respondent may be found.
    (d) As specifically provided under the Social Security Act, in cases 
brought under section 1129 of the Social Security Act, the amount of a 
penalty and assessment, as applicable, when finally determined, or the 
amount agreed upon in compromise, may also be deducted from:
    (1) Monthly title II or title XVI payments, notwithstanding section 
207 of

[[Page 996]]

the Social Security Act as made applicable to title XVI by section 
1631(d)(1) of the Social Security Act;
    (2) A tax refund to which a person is entitled to after notice to 
the Secretary of the Treasury under 31 U.S.C. Sec. 3720A;
    (3) By authorities provided under the Debt Collection Act of 1982, 
as amended, 31 U.S.C. 3711, to the extent applicable to debts arising 
under the Social Security Act; or
    (4) Any combination of the foregoing.
    (e) Matters that were raised or that could have been raised in a 
hearing before an administrative law judge or in an appeal to the United 
States Court of Appeals under sections 1129 or 1140 of the Social 
Security Act may not be raised as a defense in a civil action by the 
United States to collect a penalty and assessment, as applicable, under 
this part.

[60 FR 58226, Nov. 27, 1995, as amended at 61 FR 18080, Apr. 24, 1996]



Sec. 498.129  Notice to other agencies.

    As provided in section 1129 of the Social Security Act, when a 
determination to impose a penalty and assessment, as applicable, with 
respect to a physician or medical provider becomes final, the Office of 
the Inspector General will notify the Secretary of the final 
determination and the reasons therefore.

[61 FR 18081, Apr. 24, 1996]



Sec. 498.132  Limitations.

    The Office of the Inspector General may initiate a proceeding in 
accordance with Sec. 498.109(a) to determine whether to impose a penalty 
and assessment, as applicable--
    (a) In cases brought under section 1129 of the Social Security Act, 
after receiving authorization from the Attorney General pursuant to 
procedures agreed upon by the Inspector General and the Attorney 
General; and
    (b) Within 6 years from the date on which the violation was 
committed.

[61 FR 18081, Apr. 24, 1996]



Sec. 498.201  Definitions.

    As used in this part--
    ALJ refers to an Administrative Law Judge of the Departmental 
Appeals Board.
    Civil monetary penalty cases refer to all proceedings arising under 
any of the statutory bases for which the Inspector General, Social 
Security Administration has been delegated authority to impose civil 
monetary penalties.
    DAB refers to the Departmental Appeals Board of the U.S. Department 
of Health and Human Services.

[61 FR 65468, Dec. 13, 1996]



Sec. 498.202  Hearing before an administrative law judge.

    (a) A party sanctioned under any criteria specified in Secs. 498.100 
through 498.132 may request a hearing before an ALJ.
    (b) In civil monetary penalty cases, the parties to a hearing will 
consist of the respondent and the Inspector General.
    (c) The request for a hearing must be:
    (1) In writing and signed by the respondent or by the respondent's 
attorney; and
    (2) Filed within 60 days after the notice, provided in accordance 
with Sec. 498.109, is received by the respondent or upon a showing of 
good cause, the time permitted by an ALJ.
    (d) The request for a hearing shall contain a statement as to the:
    (1) Specific issues or findings of fact and conclusions of law in 
the notice letter with which the respondent disagrees; and
    (2) Basis for the respondent's contention that the specific issues 
or findings and conclusions were incorrect.
    (e) For purposes of this section, the date of receipt of the notice 
letter will be presumed to be five days after the date of such notice, 
unless there is a reasonable showing to the contrary.
    (f) The ALJ shall dismiss a hearing request where:
    (1) The respondent's hearing request is not filed in a timely manner 
and the respondent fails to demonstrate good cause for such failure;
    (2) The respondent withdraws or abandons respondent's request for a 
hearing; or
    (3) The respondent's hearing request fails to raise any issue which 
may

[[Page 997]]

properly be addressed in a hearing under this part.

[61 FR 65468, Dec. 13, 1996]



Sec. 498.203  Rights of parties.

    (a) Except as otherwise limited by this part, all parties may:
    (1) Be accompanied, represented, and advised by an attorney;
    (2) Participate in any conference held by the ALJ;
    (3) Conduct discovery of documents as permitted by this part;
    (4) Agree to stipulations of fact or law which will be made part of 
the record;
    (5) Present evidence relevant to the issues at the hearing;
    (6) Present and cross-examine witnesses;
    (7) Present oral arguments at the hearing as permitted by the ALJ; 
and
    (8) Submit written briefs and proposed findings of fact and 
conclusions of law after the hearing.
    (b) Fees for any services performed on behalf of a party by an 
attorney are not subject to the provisions of section 206 of title II of 
the Social Security Act, which authorizes the Commissioner to specify or 
limit these fees.

[61 FR 65469, Dec. 13, 1996]



Sec. 498.204  Authority of the administrative law judge.

    (a) The ALJ will conduct a fair and impartial hearing, avoid delay, 
maintain order and assure that a record of the proceeding is made.
    (b) The ALJ has the authority to:
    (1) Set and change the date, time, and place of the hearing upon 
reasonable notice to the parties;
    (2) Continue or recess the hearing in whole or in part for a 
reasonable period of time;
    (3) Hold conferences to identify or simplify the issues, or to 
consider other matters that may aid in the expeditious disposition of 
the proceeding;
    (4) Administer oaths and affirmations;
    (5) Issue subpoenas requiring the attendance of witnesses at 
hearings and the production of documents at or in relation to hearings;
    (6) Rule on motions and other procedural matters;
    (7) Regulate the scope and timing of documentary discovery as 
permitted by this part;
    (8) Regulate the course of the hearing and the conduct of 
representatives, parties, and witnesses;
    (9) Examine witnesses;
    (10) Receive, exclude, or limit evidence;
    (11) Take official notice of facts;
    (12) Upon motion of a party, decide cases, in whole or in part, by 
summary judgment where there is no disputed issue of material fact; and
    (13) Conduct any conference or argument in person, or by telephone 
upon agreement of the parties.
    (c) The ALJ does not have the authority to:
    (1) Find invalid or refuse to follow Federal statutes or 
regulations, or delegations of authority from the Commissioner;
    (2) Enter an order in the nature of a directed verdict;
    (3) Compel settlement negotiations;
    (4) Enjoin any act of the Commissioner or the Inspector General; or
    (5) Review the exercise of discretion by the Office of the Inspector 
General to seek to impose a civil monetary penalty or assessment under 
Secs. 498.100 through 498.132.

[61 FR 65469, Dec. 13, 1996]



Sec. 498.205  Ex parte contacts.

    No party or person (except employees of the ALJ's office) will 
communicate in any way with the ALJ on any matter at issue in a case, 
unless on notice and opportunity for all parties to participate. This 
provision does not prohibit a person or party from inquiring about the 
status of a case or asking routine questions concerning administrative 
functions or procedures.

[61 FR 65469, Dec. 13, 1996]



Sec. 498.206  Prehearing conferences.

    (a) The ALJ will schedule at least one prehearing conference, and 
may schedule additional prehearing conferences as appropriate, upon 
reasonable notice to the parties.
    (b) The ALJ may use prehearing conferences to address the following:
    (1) Simplification of the issues;

[[Page 998]]

    (2) The necessity or desirability of amendments to the pleadings, 
including the need for a more definite statement;
    (3) Stipulations and admissions of fact as to the contents and 
authenticity of documents and deadlines for challenges, if any, to the 
authenticity of documents;
    (4) Whether the parties can agree to submission of the case on a 
stipulated record;
    (5) Whether a party chooses to waive appearance at a hearing and to 
submit only documentary evidence (subject to the objection of other 
parties) and written argument;
    (6) Limitation of the number of witnesses;
    (7) The time and place for the hearing and dates for the exchange of 
witness lists and of proposed exhibits;
    (8) Discovery of documents as permitted by this part;
    (9) Such other matters as may tend to encourage the fair, just, and 
expeditious disposition of the proceedings; and
    (10) Potential settlement of the case.
    (c) The ALJ shall issue an order containing the matters agreed upon 
by the parties or ordered by the ALJ at a prehearing conference.

[61 FR 65469, Dec. 13, 1996]



Sec. 498.207  Discovery.

    (a) For the purpose of inspection and copying, a party may make a 
request to another party for production of documents which are relevant 
and material to the issues before the ALJ.
    (b) Any form of discovery other than that permitted under paragraph 
(a) of this section, such as requests for admissions, written 
interrogatories and depositions, is not authorized.
    (c) For the purpose of this section, the term documents includes 
information, reports, answers, records, accounts, papers, memos, notes 
and other data and documentary evidence. Nothing contained in this 
section will be interpreted to require the creation of a document, 
except that requested data stored in an electronic data storage system 
will be produced in a form accessible to the requesting party.
    (d)(1) A party who has been served with a request for production of 
documents may file a motion for a protective order. The motion for 
protective order shall describe the document or class of documents to be 
protected, specify which of the grounds in Sec. 498.207(d)(2) are being 
asserted, and explain how those grounds apply.
    (2) The ALJ may grant a motion for a protective order if he or she 
finds that the discovery sought:
    (i) Is unduly costly or burdensome;
    (ii) Will unduly delay the proceeding; or
    (iii) Seeks privileged information.
    (3) The burden of showing that discovery should be allowed is on the 
party seeking discovery.

[61 FR 65469, Dec. 13, 1996]



Sec. 498.208  Exchange of witness lists, witness statements and exhibits.

    (a) At least 15 days before the hearing, the parties shall exchange:
    (1) Witness lists;
    (2) Copies of prior written statements of proposed witnesses; and
    (3) Copies of proposed hearing exhibits, including copies of any 
written statements that the party intends to offer in lieu of live 
testimony in accordance with Sec. 498.216.
    (b)(1) Failure to comply with the requirements of paragraph (a) of 
this section may result in the exclusion of evidence or testimony upon 
the objection of the opposing party.
    (2) When an objection is entered, the ALJ shall determine whether 
good cause justified the failure to timely exchange the information 
listed under paragraph (a) of this section. If good cause is not found, 
the ALJ shall exclude from the party's case-in-chief:
    (i) The testimony of any witness whose name does not appear on the 
witness list; and
    (ii) Any exhibit not provided to the opposing party as specified in 
paragraph (a) of this section.
    (3) If the ALJ finds that good cause exists, the ALJ shall determine 
whether the admission of such evidence would cause substantial prejudice 
to the objecting party due to the failure to comply with paragraph (a) 
of this section. If the ALJ finds no substantial

[[Page 999]]

prejudice, the evidence may be admitted. If the ALJ finds substantial 
prejudice, the ALJ may exclude the evidence, or at his or her 
discretion, may postpone the hearing for such time as is necessary for 
the objecting party to prepare and respond to the evidence.
    (c) Unless a party objects by the deadline set by the ALJ's 
prehearing order pursuant to Sec. 498.206 (b)(3) and (c), documents 
exchanged in accordance with paragraph (a) of this section will be 
deemed authentic for the purpose of admissibility at the hearing.

[61 FR 65470, Dec. 13, 1996]



Sec. 498.209  Subpoenas for attendance at hearing.

    (a) A party wishing to procure the appearance and testimony of any 
individual, whose appearance and testimony are relevant and material to 
the presentation of a party's case at a hearing, may make a motion 
requesting the ALJ to issue a subpoena.
    (b) A subpoena requiring the attendance of an individual may also 
require the individual (whether or not the individual is a party) to 
produce evidence at the hearing in accordance with Sec. 498.207.
    (c) A party seeking a subpoena will file a written motion not less 
than 30 days before the date fixed for the hearing, unless otherwise 
allowed by the ALJ for good cause shown. Such request will:
    (1) Specify any evidence to be produced;
    (2) Designate the witness(es); and
    (3) Describe the address and location with sufficient particularity 
to permit such witness(es) to be found.
    (d) Within 20 days after the written motion requesting issuance of a 
subpoena is served, any party may file an opposition or other response.
    (e) If the motion requesting issuance of a subpoena is granted, the 
party seeking the subpoena will serve the subpoena by delivery to the 
individual named, or by certified mail addressed to such individual at 
his or her last dwelling place or principal place of business.
    (f) The subpoena will specify the time and place at which the 
witness is to appear and any evidence the witness is to produce.
    (g) The individual to whom the subpoena is directed may file with 
the ALJ a motion to quash the subpoena within 10 days after service.
    (h) When a subpoena is served by a respondent on a particular 
individual or particular office of the Office of the Inspector General, 
the OIG may comply by designating any of its representatives to appear 
and testify.
    (i) In the case of contumacy by, or refusal to obey a subpoena duly 
served upon any person, the exclusive remedy is specified in section 
205(e) of the Social Security Act (42 U.S.C. 405(e)).

[61 FR 65470, Dec. 13, 1996]



Sec. 498.210  Fees.

    The party requesting a subpoena will pay the cost of the fees and 
mileage of any witness subpoenaed in the amounts that would be payable 
to a witness in a proceeding in United States District Court. A check 
for witness fees and mileage will accompany the subpoena when served, 
except that when a subpoena is issued on behalf of the Inspector 
General, a check for witness fees and mileage need not accompany the 
subpoena.

[61 FR 65470, Dec. 13, 1996]



Sec. 498.211  Form, filing and service of papers.

    (a) Form. (1) Unless the ALJ directs the parties to do otherwise, 
documents filed with the ALJ will include an original and two copies.
    (2) Every document filed in the proceeding will contain a caption 
setting forth the title of the action, the case number, and a 
designation of the pleading or paper.
    (3) Every document will be signed by, and will contain the address 
and telephone number of the party or the person on whose behalf the 
document was filed, or his or her representative.
    (4) Documents are considered filed when they are mailed.
    (b) Service. A party filing a document with the ALJ will, at the 
time of filing, serve a copy of such document on every other party. 
Service upon any party of any document will be made by delivering a 
copy, or placing a copy of the document in the United States mail, 
postage prepaid and addressed, or with

[[Page 1000]]

a private delivery service, to the party's last known address. When a 
party is represented by an attorney, service will be made upon such 
attorney. Proof of service should accompany any document filed with the 
ALJ.
    (c) Proof of service. A certificate of the individual serving the 
document by personal delivery or by mail, setting forth the manner of 
service, will be proof of service.

[61 FR 65470, Dec. 13, 1996]



Sec. 498.212  Computation of time.

    (a) In computing any period of time under this part or in an order 
issued thereunder, the time begins with the day following the act, event 
or default, and includes the last day of the period unless it is a 
Saturday, Sunday or legal holiday observed by the Federal Government, in 
which event it includes the next business day.
    (b) When the period of time allowed is less than 7 days, 
intermediate Saturdays, Sundays and legal holidays observed by the 
Federal Government will be excluded from the computation.
    (c) Where a document has been served or issued by placing it in the 
mail, an additional 5 days will be added to the time permitted for any 
response. This paragraph does not apply to requests for hearing under 
Sec. 498.202.

[61 FR 65470, Dec. 13, 1996]



Sec. 498.213  Motions.

    (a) An application to the ALJ for an order or ruling will be by 
motion. Motions will:
    (1) State the relief sought, the authority relied upon and the facts 
alleged; and
    (2) Be filed with the ALJ and served on all other parties.
    (b) Except for motions made during a prehearing conference or at a 
hearing, all motions will be in writing.
    (c) Within 10 days after a written motion is served, or such other 
time as may be fixed by the ALJ, any party may file a response to such 
motion.
    (d) The ALJ may not grant or deny a written motion before the time 
for filing responses has expired, except upon consent of the parties or 
following a hearing on the motion.
    (e) The ALJ will make a reasonable effort to dispose of all 
outstanding motions prior to the beginning of the hearing.
    (f) There is no right to appeal to the DAB any interlocutory ruling 
by the ALJ.

[61 FR 65470, Dec. 13, 1996]



Sec. 498.214  Sanctions.

    (a) The ALJ may sanction a person, including any party or attorney, 
for:
    (1) Failing to comply with an order or procedure;
    (2) Failing to defend an action; or
    (3) Misconduct that interferes with the speedy, orderly or fair 
conduct of the hearing.
    (b) Such sanctions will reasonably relate to the severity and nature 
of the failure or misconduct. Such sanction may include--
    (1) In the case of refusal to provide or permit discovery under the 
terms of this part, drawing negative factual inferences or treating such 
refusal as an admission by deeming the matter, or certain facts, to be 
established;
    (2) Prohibiting a party from introducing certain evidence or 
otherwise supporting a particular claim or defense;
    (3) Striking pleadings, in whole or in part;
    (4) Staying the proceedings;
    (5) Dismissal of the action; or
    (6) Entering a decision by default.
    (c) In addition to the sanctions listed in paragraph (b) of this 
section, the ALJ may:
    (1) Order the party or attorney to pay attorney's fees and other 
costs caused by the failure or misconduct; or
    (2) Refuse to consider any motion or other action that is not filed 
in a timely manner.

[61 FR 65471, Dec. 13, 1996]



Sec. 498.215  The hearing and burden of proof.

    (a) The ALJ will conduct a hearing on the record in order to 
determine whether the respondent should be found liable under this part.
    (b) In civil monetary penalty cases under Secs. 498.100 through 
498.132:

[[Page 1001]]

    (1) The respondent has the burden of going forward and the burden of 
persuasion with respect to affirmative defenses and any mitigating 
circumstances; and
    (2) The Inspector General has the burden of going forward and the 
burden of persuasion with respect to all other issues.
    (c) The burden of persuasion will be judged by a preponderance of 
the evidence.
    (d) The hearing will be open to the public unless otherwise ordered 
by the ALJ for good cause.
    (e)(1) A hearing under this part is not limited to specific items 
and information set forth in the notice letter to the respondent. 
Subject to the 15-day requirement under Sec. 498.208, additional items 
or information may be introduced by either party during its case-in-
chief, unless such information or items are inadmissible under 
Sec. 498.217.
    (2) After both parties have presented their cases, evidence may be 
admitted on rebuttal as to those issues presented in the case-in-chief, 
even if not previously exchanged in accordance with Sec. 498.208.

[61 FR 65471, Dec. 13, 1996]



Sec. 498.216  Witnesses.

    (a) Except as provided in paragraph (b) of this section, testimony 
at the hearing will be given orally by witnesses under oath or 
affirmation.
    (b) At the discretion of the ALJ, testimony (other than expert 
testimony) may be admitted in the form of a written statement. Any such 
written statement must be provided to all other parties along with the 
last known address of such witness, in a manner that allows sufficient 
time for other parties to subpoena such witness for cross-examination at 
the hearing. Prior written statements of witnesses proposed to testify 
at the hearing will be exchanged as provided in Sec. 498.208.
    (c) The ALJ will exercise reasonable control over the mode and order 
of witness direct and cross examination and evidence presentation so as 
to:
    (1) Make the examination and presentation effective for the 
ascertainment of the truth;
    (2) Avoid repetition or needless waste of time; and
    (3) Protect witnesses from harassment or undue embarrassment.
    (d) The ALJ may order witnesses excluded so that they cannot hear 
the testimony of other witnesses. This does not authorize exclusion of:
    (1) A party who is an individual;
    (2) In the case of a party that is not an individual, an officer or 
employee of the party appearing for the entity pro se or designated as 
the party's representative; or
    (3) An individual whose presence is shown by a party to be essential 
to the presentation of its case, including an individual engaged in 
assisting the attorney for the Inspector General.

[61 FR 65471, Dec. 13, 1996]



Sec. 498.217  Evidence.

    (a) The ALJ will determine the admissibility of evidence.
    (b) Except as provided in this part, the ALJ will not be bound by 
the Federal Rules of Evidence, but may be guided by them in ruling on 
the admissibility of evidence.
    (c) Although relevant, evidence may be excluded if its probative 
value is substantially outweighed by the danger of unfair prejudice, 
confusion of the issues, or by considerations of undue delay or needless 
presentation of cumulative evidence.
    (d) Although relevant, evidence must be excluded if it is privileged 
under Federal law, unless the privilege is waived by a party.
    (e) Evidence concerning offers of compromise or settlement made in 
this action will be inadmissible to the extent provided in Rule 408 of 
the Federal Rules of Evidence.
    (f)(1) Evidence of crimes, wrongs or acts other than those at issue 
in the instant case is admissible in order to show motive, opportunity, 
intent, knowledge, preparation, identity, lack of mistake, or existence 
of a scheme.
    (2) Such evidence is admissible regardless of whether the crimes, 
wrongs or acts occurred during the statute of limitations period 
applicable to the acts which constitute the basis for liability in the 
case, and regardless of whether they were referenced in the IG's notice 
sent in accordance with Sec. 498.109.

[[Page 1002]]

    (g) The ALJ will permit the parties to introduce rebuttal witnesses 
and evidence as to those issues raised in the parties' case-in-chief.
    (h) All documents and other evidence offered or taken for the record 
will be open to examination by all parties, unless otherwise ordered by 
the ALJ for good cause.

[61 FR 65471, Dec. 13, 1996]



Sec. 498.218  The record.

    (a) The hearing shall be recorded and transcribed. Transcripts may 
be obtained following the hearing from the ALJ.
    (b) The transcript of testimony, exhibits and other evidence 
admitted at the hearing, and all papers and requests filed in the 
proceeding constitute the record for the decision by the ALJ.
    (c) The record may be inspected and copied (upon payment of a 
reasonable fee) by any person, unless otherwise ordered by the ALJ for 
good cause.

[61 FR 65471, Dec. 13, 1996]



Sec. 498.219  Post-hearing briefs.

    (a) Any party may file a post-hearing brief.
    (b) The ALJ may require the parties to file post-hearing briefs and 
may permit the parties to file reply briefs.
    (c) The ALJ will fix the time for filing briefs, which is not to 
exceed 60 days from the date the parties receive the transcript of the 
hearing or, if applicable, the stipulated record.
    (d) The parties' briefs may be accompanied by proposed findings of 
fact and conclusions of law.

[61 FR 65471, Dec. 13, 1996]



Sec. 498.220  Initial decision.

    (a) The ALJ will issue an initial decision, based only on the 
record, which will contain findings of fact and conclusions of law.
    (b) The ALJ may affirm, deny, increase, or reduce the penalties or 
assessments proposed by the Inspector General.
    (c) The ALJ will issue the initial decision to all parties within 60 
days after the time for submission of post-hearing briefs or reply 
briefs, if permitted, has expired. The decision will be accompanied by a 
statement describing the right of any party to file a notice of appeal 
with the DAB and instructions for how to file such appeal. If the ALJ 
cannot issue an initial decision within the 60 days, the ALJ will notify 
the parties of the reason for the delay and will set a new deadline.
    (d) Unless an appeal or request for extension pursuant to 
Sec. 498.221(a) is filed with the DAB, the initial decision of the ALJ 
becomes final and binding on the parties 30 days after the ALJ serves 
the parties with a copy of the decision. If service is by mail, the date 
of service will be deemed to be five days from the date of mailing.

[61 FR 65472, Dec. 13, 1996]



Sec. 498.221  Appeal to DAB.

    (a) Any party may appeal the decision of the ALJ to the DAB by 
filing a notice of appeal with the DAB within 30 days of the date of 
service of the initial decision. The DAB may extend the initial 30-day 
period for a period of time not to exceed 30 days if a party files with 
the DAB a request for an extension within the initial 30-day period and 
shows good cause.
    (b) If a party files a timely notice of appeal with the DAB, the ALJ 
will forward the record of the proceeding to the DAB.
    (c) A notice of appeal will be accompanied by a written brief 
specifying exceptions to the initial decision and reasons supporting the 
exceptions, and identifying which finding of fact and conclusions of law 
the party is taking exception to. Any party may file a brief in 
opposition to exceptions, which may raise any relevant issue not 
addressed in the exceptions, within 30 days of receiving the notice of 
appeal and accompanying brief. The DAB may permit the parties to file 
reply briefs.
    (d) There is no right to appear personally before the DAB, or to 
appeal to the DAB any interlocutory ruling by the ALJ.
    (e) No party or person (except employees of the DAB) will 
communicate in any way with members of the DAB on any matter at issue in 
a case, unless on notice and opportunity for all parties to participate. 
This provision does not prohibit a person or party from inquiring about 
the status of a case or

[[Page 1003]]

asking routine questions concerning administrative functions or 
procedures.
    (f) The DAB will not consider any issue not raised in the parties' 
briefs, nor any issue in the briefs that could have been, but was not, 
raised before the ALJ.
    (g) If any party demonstrates to the satisfaction of the DAB that 
additional evidence not presented at such hearing is relevant and 
material and that there were reasonable grounds for the failure to 
adduce such evidence at such hearing, the DAB may remand the matter to 
the ALJ for consideration of such additional evidence.
    (h) The DAB may remand a case to an ALJ for further proceedings, or 
may issue a recommended decision to decline review or affirm, increase, 
reduce, or reverse any penalty or assessment determined by the ALJ.
    (i) When the DAB reviews a case, it will limit its review to whether 
the ALJ's initial decision is supported by substantial evidence on the 
whole record or contained error of law.
    (j) Within 60 days after the time for submission of briefs or, if 
permitted, reply briefs has expired, the DAB will issue to each party to 
the appeal and to the Commissioner a copy of the DAB's recommended 
decision and a statement describing the right of any respondent who is 
found liable to seek judicial review upon a final decision.

[61 FR 65472, Dec. 13, 1996]



Sec. 498.222  Final decision of the Commissioner.

    (a) Except with respect to any penalty or assessment remanded to the 
ALJ, the DAB's recommended decision, including a recommended decision to 
decline review of the initial decision, shall become the final decision 
of the Commissioner 60 days after the date on which the DAB serves the 
parties to the appeal and the Commissioner with a copy of the 
recommended decision, unless the Commissioner reverses or modifies the 
DAB's recommended decision within that 60-day period. If the 
Commissioner reverses or modifies the DAB's recommended decision, the 
Commissioner's decision is final and binding on the parties. In either 
event, a copy of the final decision will be served on the parties. If 
service is by mail, the date of service will be deemed to be five days 
from the date of mailing.
    (b) There shall be no right to personally appear before or submit 
additional evidence, pleadings or briefs to the Commissioner.
    (c)(1) Any petition for judicial review must be filed within 60 days 
after the parties are served with a copy of the final decision. If 
service is by mail, the date of service will be deemed to be five days 
from the date of mailing.
    (2) In compliance with 28 U.S.C. 2112(a), a copy of any petition for 
judicial review filed in any U.S. Court of Appeals challenging a final 
action of the Commissioner will be sent by certified mail, return 
receipt requested, to the SSA General Counsel. The petition copy will be 
time-stamped by the clerk of the court when the original is filed with 
the court.
    (3) If the SSA General Counsel receives two or more petitions within 
10 days after the final decision is issued, the General Counsel will 
notify the U.S. Judicial Panel on Multidistrict Litigation of any 
petitions that were received within the 10-day period.

[61 FR 65472, Dec. 13, 1996]



Sec. 498.223  Stay of initial decision.

    (a) The filing of a respondent's request for review by the DAB will 
automatically stay the effective date of the ALJ's decision.
    (b)(1) After issuance of the final decision, pending judicial 
review, the respondent may file a request for stay of the effective date 
of any penalty or assessment with the ALJ. The request must be 
accompanied by a copy of the notice of appeal filed with the Federal 
court. The filing of such a request will automatically act to stay the 
effective date of the penalty or assessment until such time as the ALJ 
rules upon the request.
    (2) The ALJ may not grant a respondent's request for stay of any 
penalty or assessment unless the respondent posts a bond or provides 
other adequate security.
    (3) The ALJ will rule upon a respondent's request for stay within 10 
days of receipt.

[61 FR 65472, Dec. 13, 1996]

[[Page 1004]]



Sec. 498.224  Harmless error.

    No error in either the admission or the exclusion of evidence, and 
no error or defect in any ruling or order or in any act done or omitted 
by the ALJ or by any of the parties is ground for vacating, modifying or 
otherwise disturbing an otherwise appropriate ruling or order or act, 
unless refusal to take such action appears to the ALJ or the DAB to be 
inconsistent with substantial justice. The ALJ and the DAB at every 
stage of the proceeding will disregard any error or defect in the 
proceeding that does not affect the substantial rights of the parties.

[61 FR 65472, Dec. 13, 1996]



PART 499  [RESERVED]




                              FINDING AIDS




  --------------------------------------------------------------------

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.
  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  Redesignation Table
  Chapter III Index
  List of CFR Sections Affected



[[Page 1007]]



                    Table of CFR Titles and Chapters




                      (Revised as of April 1, 1997)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
        IV  Miscellaneous Agencies (Parts 400--500)

                          Title 2--[Reserved]

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  General Accounting Office (Parts 1--99)
        II  Federal Claims Collection Standards (General 
                Accounting Office--Department of Justice) (Parts 
                100--299)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
        IV  Advisory Committee on Federal Pay (Parts 1400--1499)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
       VII  Advisory Commission on Intergovernmental Relations 
                (Parts 1700--1799)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Part 2100)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Part 3201)
     XXIII  Department of Energy (Part 3301)

[[Page 1008]]

      XXIV  Federal Energy Regulatory Commission (Part 3401)
      XXVI  Department of Defense (Part 3601)
    XXVIII  Department of Justice (Part 3801)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Part 4301)
      XXXV  Office of Personnel Management (Part 4501)
        XL  Interstate Commerce Commission (Part 5001)
       XLI  Commodity Futures Trading Commission (Part 5101)
      XLII  Department of Labor (Part 5201)
     XLIII  National Science Foundation (Part 5301)
       XLV  Department of Health and Human Services (Part 5501)
      XLVI  Postal Rate Commission (Part 5601)
     XLVII  Federal Trade Commission (Part 5701)
    XLVIII  Nuclear Regulatory Commission (Part 5801)
         L  Department of Transportation (Part 6001)
       LII  Export-Import Bank of the United States (Part 6201)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Part 6401)
      LVII  General Services Administration (Part 6701)
     LVIII  Board of Governors of the Federal Reserve System (Part 
                6801)
       LIX  National Aeronautics and Space Administration (Part 
                6901)
        LX  United States Postal Service (Part 7001)
       LXI  National Labor Relations Board (Part 7101)
      LXII  Equal Employment Opportunity Commission (Part 7201)
     LXIII  Inter-American Foundation (Part 7301)
       LXV  Department of Housing and Urban Development (Part 
                7501)
      LXVI  National Archives and Records Administration (Part 
                7601)
      LXIX  Tennessee Valley Authority (Part 7901)
      LXXI  Consumer Product Safety Commission (Part 8101)
     LXXIV  Federal Mine Safety and Health Review Commission (Part 
                8401)
     LXXVI  Federal Retirement Thrift Investment Board (Part 8601)
    LXXVII  Office of Management and Budget (Part 8701)

                          Title 6--[Reserved]

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Consumer Service, Department of Agriculture 
                (Parts 210--299)

[[Page 1009]]

       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy, Department of Agriculture (Parts 
                2900--2999)
       XXX  Office of Finance and Management, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  [Reserved]
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  Cooperative State Research, Education, and Extension 
                Service, Department of Agriculture (Parts 3400--
                3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)

[[Page 1010]]

     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

                    Title 8--Aliens and Nationality

         I  Immigration and Naturalization Service, Department of 
                Justice (Parts 1--499)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Meat and Poultry 
                Inspection, Department of Agriculture (Parts 300--
                599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
        XI  United States Enrichment Corporation (Parts 1100--
                1199)
        XV  Office of the Federal Inspector for the Alaska Natural 
                Gas Transportation System (Parts 1500--1599)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)

[[Page 1011]]

      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Thrift Depositor Protection Oversight Board (Parts 
                1500--1599)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Export Administration, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)

[[Page 1012]]

            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  United States Customs Service, Department of the 
                Treasury (Parts 1--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees' Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Employment Standards Administration, Department of 
                Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)

[[Page 1013]]

        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training, Department of Labor 
                (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development, International 
                Development Cooperation Agency (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  United States Information Agency (Parts 500--599)
        VI  United States Arms Control and Disarmament Agency 
                (Parts 600--699)
       VII  Overseas Private Investment Corporation, International 
                Development Cooperation Agency (Parts 700--799)
        IX  Foreign Service Grievance Board Regulations (Parts 
                900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
      XIII  Board for International Broadcasting (Parts 1300--
                1399)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

[[Page 1014]]

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs and Section 202 Direct Loan Program) 
                (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--999)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)
        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Part 1001)

[[Page 1015]]

       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Parts 1200--1299)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--799)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Bureau of Alcohol, Tobacco and Firearms, Department of 
                the Treasury (Parts 1--299)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--199)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Pension and Welfare Benefits Administration, 
                Department of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

[[Page 1016]]

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Minerals Management Service, Department of the 
                Interior (Parts 200--299)
       III  Board of Surface Mining and Reclamation Appeals, 
                Department of the Interior (Parts 300--399)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
        VI  Bureau of Mines, Department of the Interior (Parts 
                600--699)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)
      XXIX  Presidential Commission on the Assignment of Women in 
                the Armed Forces (Part 2900)

[[Page 1017]]

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Transportation (Parts 1--
                199)
        II  Corps of Engineers, Department of the Army (Parts 
                200--399)
        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and Improvement, 
                Department of Education (Parts 700--799)
        XI  National Institute for Literacy (Parts 1100--1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

                        Title 35--Panama Canal

         I  Panama Canal Regulations (Parts 1--299)

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
       XIV  Assassination Records Review Board (Parts 1400--1499)

[[Page 1018]]

             Title 37--Patents, Trademarks, and Copyrights

         I  Patent and Trademark Office, Department of Commerce 
                (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Rate Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--799)
         V  Council on Environmental Quality (Parts 1500--1599)

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans 
                Employment and Training, Department of Labor 
                (Parts 61-1--61-999)
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System
       201  Federal Information Resources Management Regulation 
                (Parts 201-1--201-99) [Reserved]
            Subtitle F--Federal Travel Regulation System
       301  Travel Allowances (Parts 301-1--301-99)
       302  Relocation Allowances (Parts 302-1--302-99)

[[Page 1019]]

       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Parts 303-1--303-2)
       304  Payment from a Non-Federal Source for Travel Expenses 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Health Care Financing Administration, Department of 
                Health and Human Services (Parts 400--499)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10005)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services, 
                General Administration (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)

[[Page 1020]]

         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  ACTION (Parts 1200--1299)
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)
      XXII  Christopher Columbus Quincentenary Jubilee Commission 
                (Parts 2200--2299)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Transportation (Parts 1--
                199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Department of Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  Agency for International Development (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)

[[Page 1021]]

        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  United States Information Agency (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        35  Panama Canal Commission (Parts 3500--3599)
        44  Federal Emergency Management Agency (Parts 4400--4499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399)
        54  Defense Logistics Agency, Department of Defense (Part 
                5452)
        57  African Development Foundation (Parts 5700--5799)
        61  General Services Administration Board of Contract 
                Appeals (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Research and Special Programs Administration, 
                Department of Transportation (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Highway Administration, Department of 
                Transportation (Parts 300--399)

[[Page 1022]]

        IV  Coast Guard, Department of Transportation (Parts 400--
                499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)
        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            Acts Requiring Publication in the Federal Register
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR



[[Page 1023]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of April 1, 1997)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

ACTION                                            45, XII
Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
Advisory Commission on Intergovernmental          5, VII
     Relations
Advisory Committee on Federal Pay                 5, IV
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Commodity Credit Corporation                    7, XIV
  Cooperative State Research, Education, and      7, XXXIV
       Extension Service
  Economic Research Service                       7, XXXVII
  Energy, Office of                               7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Finance and Management, Office of               7, XXX
  Food and Consumer Service                       7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Alaska Natural Gas Transportation System, Office  10, XV
     of the Federal Inspector
Alcohol, Tobacco and Firearms, Bureau of          27, I
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
Animal and Plant Health Inspection Service        7, III; 9, I

[[Page 1024]]

Appalachian Regional Commission                   5, IX
Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Arms Control and Disarmament Agency, United       22, VI
     States
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Assassination Records Review Board                36, XIV
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase From People Who Are
Board for International Broadcasting              22, XIII
Census Bureau                                     15, I
Central Intelligence Agency                       32, XIX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Christopher Columbus Quincentenary Jubilee        45, XXII
     Commission
Civil Rights, Commission on                       45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Commerce Department                               44, IV
  Census Bureau                                   15, I
  Economic Affairs, Under Secretary               37, V
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Export Administration, Bureau of                15, VII
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office                     37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology, Under Secretary for                 37, V
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Product Safety Commission                5, LXXI; 16, II
Cooperative State Research, Education, and        7, XXXIV
     Extension Service
Copyright Office                                  37, II
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Customs Service, United States                    19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A
  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51

[[Page 1025]]

  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Defense Mapping Agency                          32, I
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 2
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Mapping Agency                            32, I
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Under Secretary                 37, V
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Elementary and Secondary Education, Office of     34, II
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             5, XXIII; 10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Enrichment Corporation, United States             10, XI
Environmental Protection Agency                   5, LIV; 40, I
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                25, III, LXXVII; 48, 99
  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export Administration, Bureau of                  15, VII
Export-Import Bank of the United States           5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1

[[Page 1026]]

Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               4, II
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       11, I
Federal Emergency Management Agency               44, I
  Federal Acquisition Regulation                  48, 44
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II; 49, III
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Board                     12, IX
Federal Inspector for the Alaska Natural Gas      10, XV
     Transportation System, Office of
Federal Labor Relations Authority, and General    5, XIV; 22, XIV
     Counsel of the Federal Labor Relations 
     Authority
Federal Law Enforcement Training Center           31, VII
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Pay, Advisory Committee on                5, IV
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Property Management Regulations System    41, Subtitle C
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Finance and Management, Office of                 7, XXX
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Fishery Conservation and Management               50, VI
Food and Drug Administration                      21, I
Food and Consumer Service                         7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Accounting Office                         4, I, II
General Services Administration                   5, LVII
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Property Management Regulations System  41, 101, 105
  Federal Travel Regulation System                41, Subtitle F
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
     of Certain Employees
[[Page 1027]]

  Relocation Allowances                           41, 302
  Travel Allowances                               41, 301
Geological Survey                                 30, IV
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Great Lakes Pilotage                              46, III
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          5, XLV; 45, Subtitle A
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Health Care Financing Administration            42, IV
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Health Care Financing Administration              42, IV
Housing and Urban Development, Department of      5, LXV; 24, Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Human Development Services, Office of             45, XIII
Immigration and Naturalization Service            8, I
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V
Information Agency, United States                 22, V
  Federal Acquisition Regulation                  48, 19
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Intergovernmental Relations, Advisory Commission  5, VII
     on
Interior Department
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  Minerals Management Service                     30, II
  Mines, Bureau of                                30, VI

[[Page 1028]]

  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            43, Subtitle A
  Surface Mining and Reclamation Appeals, Board   30, III
       of
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, Agency for             22, II
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
  International Development, Agency for           22, II; 48, 7
  Overseas Private Investment Corporation         5, XXXIII; 22, VII
International Fishing and Related Activities      50, III
International Investment, Office of               31, VIII
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                5, XXVIII; 28, I
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             4, II
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration and Naturalization Service          8, I
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Benefits Review Board                           20, VII
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Relations and Cooperative      29, II
       Programs, Bureau of
  Labor-Management Programs, Office of            29, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Pension and Welfare Benefits Administration     29, XXV
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training, Office of    41, 61; 20, IX
       the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Relations and Cooperative        29, II
     Programs, Bureau of
Labor-Management Programs, Office of              29, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
Management and Budget, Office of                  5, III, LXXVII; 48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II

[[Page 1029]]

Micronesian Status Negotiations, Office for       32, XXVII
Mine Safety and Health Administration             30, I
Minerals Management Service                       30, II
Mines, Bureau of                                  30, VI
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
National Aeronautics and Space Administration     5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National Archives and Records Administration      5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Bureau of Standards                      15, II
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National and Community Service, Corporation for   45, XXV
National Council on Disability                    34, XII
National Credit Union Administration              12, VII
National Drug Control Policy, Office of           21, III
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 49, V
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Standards and Technology    15, II
National Labor Relations Board                    29, I
National Marine Fisheries Service                 50, II, IV
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Telecommunications and Information       15, XXIII; 47, III
     Administration
National Transportation Safety Board              49, VIII
National Weather Service                          15, IX
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Nuclear Regulatory Commission                     5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Panama Canal Commission                           48, 35
Panama Canal Regulations                          35, I
Patent and Trademark Office                       37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension and Welfare Benefits Administration       29, XXV
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
     Acquisition Regulation
[[Page 1030]]

                                                  (1033

[[Page 1035]]

  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Postal Rate Commission                            5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Commission on the Assignment of      32, XXIX
     Women in the Armed Forces
Presidential Documents                            3
Prisons, Bureau of                                28, V
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Regional Action Planning Commissions              13, V
Relocation Allowances                             41, 302
Research and Special Programs Administration      49, I
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                17, II
Selective Service System                          32, XVI
Small Business Administration                     13, I
Smithsonian Institution                           36, V
Social Security Administration                    20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
Special Trustee for American Indians, Office of   25, VII
State Department                                  22, I
  Federal Acquisition Regulation                  48, 6
Surface Mining and Reclamation Appeals, Board of  30, III
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV
Technology, Under Secretary for                   37, V
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Depositor Protection Oversight Board       12, XV
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     5, L
  Coast Guard                                     33, I; 46, I; 49, IV
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II; 49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 49, V
  Research and Special Programs Administration    49, I
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A

[[Page 1031]]

  Surface Transportation Board                    49, X
Transportation, Office of                         7, XXXIII
Travel Allowances                                 41, 301
Treasury Department                               5, XXI; 17, IV
  Alcohol, Tobacco and Firearms, Bureau of        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs Service, United States                  19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Law Enforcement Training Center         31, VII
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  International Investment, Office of             31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
United States Enrichment Corporation              10, XI
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training, Office of the  41, 61; 20, IX
     Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII
                            Redesignation Table

                           Redesignation Table                          
------------------------------------------------------------------------
              Former section                        New section         
------------------------------------------------------------------------
404.1201.................................  404.1200                     
404.1210.................................  404.1201                     
404.1220.................................  404.1260                     
404.1221.................................  404.1260                     
404.1222.................................  404.1255                     
404.1222a................................  404.1256                     
404.1223.................................  404.1262                     
404.1224.................................  404.1263                     
404.1225.................................  404.1265                     
404.1226.................................  None                         
404.1227.................................  404.1267                     
404.1230.................................  None                         
404.1240.................................  404.1220                     
404.1241.................................  None                         
404.1242.................................  None                         
404.1243.................................  None                         
404.1250.................................  404.1237                     
404.1250a................................  404.1239                     
404.1250b................................  404.1239                     
404.1251.................................  404.1247                     
404.1252.................................  404.1251                     
404.1253.................................  None                         
404.1254.................................  404.1243                     
404.1255.................................  404.1249                     
404.1255a................................  404.1249                     
404.1256.................................  404.1225                     
404.1257.................................  404.1237 and 404.1239        
404.1260.................................  404.1270                     
404.1261.................................  404.1265                     
404.1262.................................  404.1271                     
404.1263.................................  404.1272                     
404.1264.................................  404.1281                     
404.1265.................................  404.1270                     
404.1266.................................  404.1275                     
404.1270.................................  404.1290                     
404.1271.................................  404.1292                     
404.1272.................................  404.1293                     
404.1273.................................  404.1291                     
                                           404.1292                     
                                           404.1294                     
                                           and                          
                                           404.1295                     
404.1274.................................  404.1296                     
404.1275.................................  404.1297                     
404.1276.................................  404.1298                     
404.1277.................................  404.1299                     
404.1280.................................  404.1286                     
404.1281.................................  404.1287                     
404.1282.................................  404.1289                     
404.1283.................................  None                         
404.1284.................................  404.1285                     
404.1285.................................  404.1282                     
404.1286.................................  404.1283                     
404.1287.................................  404.1280                     
404.1290.................................  404.1202                     
------------------------------------------------------------------------

                           Index to Chapter III

        Index to Chapter III--Social Security Acquiescence Rulings

    Editorial Note:  This listing is provided for information purposes 
only. It is compiled and kept up-to-date by the Social Security 
Administration, Department of Health and Human Services.

    This listing contains all Acquiescence Rulings (ARs) published in 
the Federal Register under the requirements of 20 CFR 422.406(b)(2) 
during the period from January 11, 1990, through January 31, 1997. The 
listing includes the AR number, title, publication date and the Federal 
Register reference number. (The parenthetical number that follows each 
AR number refers to the United States judicial circuit involved.) This 
notice also lists ARs which were rescinded during this period. In 
addition, SSA has included Federal Register references for three prior 
cumulative AR listing notices and anticipates publishing a notice each 
year that will list similar information.
    SSA believes this publication will assist individuals in finding 
ARs.
    The CFR may not state the circuitwide standard in effect when SSA 
has determined that the holding in a decision of a United States Court 
of Appeals is at variance with SSA's national 
interpretation.***ACQRUL***

                          Acquiescence Rulings

    Published cumulative lists of ARs relating to claims under title II 
and title XVI of the Social Security Act and part B of the Black Lung 
Benefits Act were issued for ARs published prior to January 11, 1990.
    1. The first notice announcing 14 ARs, issued during the period from 
January 23, 1986, through April 30, 1986, was published in the Federal 
Register on June 4, 1986 (51 FR 20354).
    2. A second notice announcing 12 additional ARs, issued during the 
period from May 20, 1986, through March 31, 1987, was published in the 
Federal Register on August 7, 1987 (52 FR 29941).
    3. A third notice announcing 11 more ARs, issued during the period 
from May 1, 1987, through November 14, 1988, the withdrawal of one AR 
which was issued earlier, and the withdrawal of one of the ARs issued 
during this period was published in the Federal Register on July 10, 
1990 (55 FR 28302).

    AR 86-2R(2) Rosenberg v. Richardson, 538 F.2d 487 (2d Cir. 1976); 
Capitano v. Secretary of HHS, 732 F.2d 1066 (2d Cir. 1984)--Entitlement 
of a Deemed Widow When a Legal Widow is Entitled on the Same Earnings 
Record--Title II of the Social Security Act.
    Published: June 25, 1992, at 57 FR 28527.***NOTE***
    Note:  The original AR for the Second Circuit Court of Appeals' 
holding in Rosenberg and Capitano (AR 86-2(2)), issued January 23, 1986, 
was rescinded and replaced by this revised AR.

    AR 86-18R(5) Woodson v. Schweiker, 656 F.2d 1169 (5th Cir. 1981)--
Interpretation of the Deemed Marriage Provision--Title II of the Social 
Security Act.
    Published: June 25, 1992, at 57 FR 28529 as AR 860918R(5).***NOTE***
    Note:  The original AR for the Fifth Circuit Court of Appeals' 
holding in Woodson (AR 86-18(5)), issued May 22, 1986, was rescinded and 
replaced by this revised AR.

    AR 86-19R(11) Woodson v. Schweiker, 656 F.2d 1169 (5th Cir. 1981)--
Interpretation of the Deemed Marriage Provision--Title II of the Social 
Security Act.
    Published: June 25, 1992, at 57 FR 28524.***NOTE***
    Note:  The original AR applicable in the Eleventh Circuit for the 
Fifth Circuit Court of Appeals' holding in Woodson (AR 86-19(11)), 
issued May 22, 1986, was rescinded and replaced by this revised AR.

    AR 90-1(9) Paxton v. Secretary of Health and Human Services, 856 
F.2d 1352

[[Page 1036]]

(9th Cir. 1988)--Treatment of a Dependent's Portion of an Augmented 
Veterans Benefit Paid Directly To a Veteran--Title XVI of the Social 
Security Act.
    Published: July 16, 1990, at 55 FR 28946. Rescinded--See section on 
Rescissions in this notice.

    AR 90-2(2) Ruppert v. Bowen, 871 F.2d 1172 (2d Cir. 1989)--
Evaluation of a Rental Subsidy as In-Kind Income for Supplemental 
Security Income (SSI) Benefit Calculation Purposes--Title XVI of the 
Social Security Act.
    Published: July 16, 1990, at 55 FR 28947.

    AR 90-3(4) Smith v. Bowen, 837 F.2d 635 (4th Cir. 1987)--Use of 
Vocational Expert or Other Vocational Specialist in Determining Whether 
a Claimant Can Perform Past Relevant Work--Titles II and XVI of the 
Social Security Act.
    Published: July 16, 1990, at 55 FR 28949.

    AR 90-4(4) Culbertson v. Secretary of Health and Human Services, 859 
F.2d 319 (4th Cir. 1988); Young v. Bowen, 858 F.2d 951 (4th Cir. 1988)--
Waiver of Administrative Finality in Proceedings Involving Unrepresented 
Claimants Who Lack the Mental Competence to Request Administrative 
Review--Titles II and XVI of the Social Security Act.
    Published: July 16, 1990, at 55 FR 28943.

    AR 90-5(2) Kier v. Sullivan, 888 F.2d 244 (2d Cir. 1989), reh'g 
denied, January 22, 1990--Assessment of Residual Functional Capacity in 
Disabled Widows' Cases--Title II of the Social Security Act.
    Published: September 18, 1990, at 55 FR 38400. Rescinded--See 
section on Rescissions in this notice.

    AR 90-6(1) Cassas v. Secretary of Health and Human Services, 893 
F.2d 454 (1st Cir. 1990), reh'g denied, April 9, 1990--Assessment of 
Residual Functional Capacity in Disabled Widows' Cases--Title II of the 
Social Security Act.
    Published: September 18, 1990, at 55 FR 38398. Rescinded--See 
section on Rescissions in this notice.

    AR 90-7(9) Ruff v. Sullivan, 907 F.2d 915 (9th Cir. 1990)--
Assessment of Residual Functional Capacity in Disabled Widows' Cases--
Title II of the Social Security Act.
    Published: September 18, 1990, at 55 FR 38402. Rescinded--See 
section on Rescissions in this notice.

    AR 91-1(5) Lidy v. Sullivan, 911 F.2d 1075 (5th Cir. 1990)--Right to 
Subpoena an Examining Physician for Cross-examination Purposes--Titles 
II and XVI of the Social Security Act.
    Published: December 31, 1991, at 56 FR 67625 as AR 91-X(5).
    Correction Notice Published: May 1, 1992, at 57 FR 18899--AR number 
changed to 91-1(5).

    AR 92-1(3) Mazza v. Secretary of Health and Human Services, 903 F.2d 
953 (3d Cir. 1990)--Order of Effectuation in Concurrent Application 
Cases (Title II/Title XVI).
    Published: January 10, 1992, at 57 FR 1190 as AR 91-X(3).
    Correction Notice Published: May 1, 1992, at 57 FR 18899--AR number 
changed to 92-1(3).

    AR 92-2(6) Difford v. Secretary of Health and Human Services, 910 
F.2d 1316 (6th Cir. 1990), reh'g denied, February 7, 1991--Scope of 
Review on Appeal in a Medical Cessation of Disability Case--Title II of 
the Social Security Act.
    Published: March 17, 1992, at 57 FR 9262.

    AR 92-3(4) Branham v. Heckler, 775 F.2d 1271 (4th Cir. 1985); 
Flowers v. U.S. Department of Health and Human Services, 904 F.2d 211 
(4th Cir. 1990)--What Constitutes a Significant Work-Related Limitation 
of Function.
    Published: March 10, 1992, at 57 FR 8463.

    AR 92-4(11) Bloodsworth v. Heckler, 703 F.2d 1233 (11th Cir. 1983)--
Judicial Review of an Appeals Council Dismissal of a Request for Review 
of an Administrative Law Judge (ALJ) Decision.
    Published: April 8, 1992, at 57 FR 11961.

    AR 92-5(9) Quinlivan v. Sullivan, 916 F.2d 524 (9th Cir. 1990)--
Meaning of the Term ``Against Equity and Good Conscience'' in the Rules 
for Waiver of Recovery of an Overpayment--Titles II and XVI of the 
Social Security Act; Title IV of the Federal Mine Safety and Health Act 
of 1977.
    Published: June 22, 1992, at 57 FR 27783.


[[Page 1037]]


    AR 92-6(10) Walker v. Secretary of Health and Human Services, 943 
F.2d 1257 (10th Cir. 1991)--Entitlement to Trial Work Period Before 
Approval of an Award for Benefits and Before 12 Months Have Elapsed 
Since Onset of Disability--Titles II and XVI of the Social Security Act.
    Published: September 17, 1992, at 57 FR 43007.

    AR 92-7(9) Gonzalez v. Sullivan, 914 F.2d 1197 (9th Cir. 1990)--
Effect of Initial Determination Notice Language on the Application of 
Administrative Finality--Titles II and XVI of the Social Security Act.
    Published: September 30, 1992, at 57 FR 45061.

    AR 93-1(4) Branham v. Heckler, 775 F.2d 1271 (4th Cir. 1985); 
Flowers v. U.S. Department of Health and Human Services, 904 F.2d 211 
(4th Cir. 1990)--What Constitutes a Significant Work-Related Limitation 
of Function--Titles II and XVI of the Social Security Act.
    Published: April 29, 1993, at 58 FR 25996.***NOTE***
    Note:  The original AR for the Fourth Circuit Court of Appeals' 
holding in Branham and Flowers (AR 92-3(4)), issued March 10, 1992, was 
revised to reflect a regulatory change regarding the IQ Listing range. 
There were no other substantive changes to this AR.

    AR 93-2(2) Conley v. Bowen, 859 F.2d 261 (2d Cir. 1988)--
Determination of Whether an Individual With a Disabling Impairment Has 
Engaged in Substantial Gainful Activity Following a Reentitlement 
Period--Title II of the Social Security Act.
    Published: May 17, 1993, at 58 FR 28887.

    AR 93-3(6) Akers v. Secretary of Health and Human Services, 966 F.2d 
205 (6th Cir. 1992)--Attorney's Fees Based in Part on Continued Benefits 
Paid to Social Security Claimants--Title II of the Social Security Act.
    Published: July 29, 1993, at 58 FR 40662.

    AR 93-4(2) Condon and Brodner v. Bowen, 853 F.2d 66 (2d Cir. 1988)--
Attorney's Fees Based in Part on Continued Benefits Paid to Social 
Security Claimants--Title II of the Social Security Act.
    Published: July 29, 1993, at 58 FR 40663.

    AR 93-5(11) Shoemaker v. Bowen, 853 F.2d 858 (11th Cir. 1988)--
Attorney's Fees Based in Part on Continued Benefits Paid to Social 
Security Claimants--Title II of the Social Security Act.
    Published: July 29, 1993, at 58 FR 40665.

    AR 93-6(8) Brewster on Behalf of Keller v. Sullivan, 972 F.2d 898 
(8th Cir. 1992)--Interpretation of the Secretary's Regulation Regarding 
Presumption of Death--Title II of the Social Security Act.
    Published: August 16, 1993, at 58 FR 43369. Rescinded--See section 
on Rescissions in this notice.

    AR 94-1(10) Wolfe v. Sullivan, 988 F.2d 1025 (10th Cir. 1993)--
Contributions To Support re: Posthumous Illegitimate Child--Title II of 
the Social Security Act.
    Published: June 27, 1994, at 59 FR 33003.

    AR 94-2(4) Lively v. Secretary of Health and Human Services, 820 
F.2d 1391 (4th Cir. 1987)--Effect of Prior Disability Findings on 
Adjudication of a Subsequent Disability Claim Arising Under the Same 
Title of the Social Security Act--Titles II and XVI of the Social 
Security Act.
    Published: July 7, 1994, at 59 FR 34849.

    AR 95-1(6) Preslar v. Secretary of Health and Human Services, 14 
F.3d 1107 (6th Cir. 1994)--Definition of Highly Marketable Skills for 
Individuals Close to Retirement Age--Titles II and XVI of the Social 
Security Act.
    Published: May 4, 1995, at 60 FR 22091.

    AR 95-2(9) Hodge v. Shalala, 27 F.3d 430 (9th Cir. 1994)--Workers' 
Compensation--Proration of a Lump-Sum Award for Permanent Disability 
Over the Remainder of an Individual's Working Life Under Oregon Workers' 
Compensation Law--Title II of the Social Security Act.
    Published: July 12, 1995, at 60 FR 35987.

    AR 96-1(6) DeSonier v. Sullivan, 906 F.2d 228 (6th Cir. 1990)--
Method of Application of State Intestate Succession Law in Determining 
Entitlement to Child's Benefits--Title II of the Social Security Act.
    Published: June 3, 1996, at 61 FR 27942.


[[Page 1038]]


    AR 97-1(1) Parisi By Cooney v. Chater, 69 F.3d 614 (1st Cir. 1995)--
Reduction of Benefits Under the Family Maximum In Cases Involving Dual 
Entitlement--Title II of the Social Security Act.
    Published: January 13, 1997, at 62 FR 1792.

    AR 97-2(9) Gamble v. Chater, 68 F.3d 319 (9th Cir. 1995)--Amputation 
of a Lower Extremity--When the Inability to Afford the Cost of a 
Prosthesis Meets the Requirements of Section 1.10C of the Listing of 
Impairments--Titles II and XVI of the Social Security Act.
    Published: January 13, 1997, at 62 FR 1791.***RESCIS***

                   Rescissions Without Replacement ARs

    AR 86-1(9) Summy v. Schweiker, 688 F.2d 1233 (9th Cir. 1982)--Third 
party payments for medical care or services--Title XVI of the Social 
Security Act.
    Notice of Rescission Published: July 5, 1994, at 59 FR 34444.

    AR 86-6(3) Aubrey v. Richardson, 462 F.2d 782 (3d Cir. 1972); 
Shelnutt v. Heckler, 723 F.2d 1131 (3d Cir. 1983)--Interpretation of the 
Secretary's Regulation Regarding Presumption of Death--Title II of the 
Social Security Act.
    Notice of Rescission Published: July 14, 1995, at 60 FR 36327.

    AR 86-7(5) Autrey v. Harris, 639 F.2d 1233 (5th Cir. 1981); Wages v. 
Schweiker, 659 F.2d 59 (5th Cir. 1981)--Interpretation of the 
Secretary's Regulation Regarding Presumption of Death--Title II of the 
Social Security Act.
    Notice of Rescission Published: July 14, 1995, at 60 FR 36327.

    AR 86-8(6) Johnson v. Califano, 607 F.2d 1178 (6th Cir. 1979)--
Interpretation of the Secretary's Regulation Regarding Presumption of 
Death--Title II of the Social Security Act.
    Notice of Rescission Published: July 14, 1995, at 60 FR 36327.

    AR 86-9(9) Secretary of Health, Education and Welfare v. Meza, 386 
F.2d 389 (9th Cir. 1966); Gardner v. Wilcox, 370 F.2d 492 (9th Cir. 
1966)--Interpretation of the Secretary's Regulation Regarding 
Presumption of Death--Title II of the Social Security Act.
    Notice of Rescission Published: July 14, 1995, at 60 FR 36327.

    AR 86-10(10) Edwards v. Califano, 619 F.2d 865 (10th Cir. 1980)--
Interpretation of the Secretary's Regulation Regarding Presumption of 
Death--Title II of the Social Security Act.
    Notice of Rescission Published: July 14, 1995, at 60 FR 36327.

    AR 86-11(11) Autrey v. Harris, 639 F.2d 1233 (5th Cir. 1981)--
Interpretation of the Secretary's Regulation Regarding Presumption of 
Death--Title II of the Social Security Act.
    Notice of Rescission Published: July 14, 1995, at 60 FR 36327.

    AR 87-1(6) Webb v. Richardson, 472 F.2d 529 (6th Cir. 1972)--
Attorneys' Fees - Single Fee, Not to Exceed 25 Percent of Past-Due 
Benefits, Set by Tribunal Which Ultimately Upholds the Claim--Title II 
of the Social Security Act.
    Notice of Rescission Published: March 3, 1995, at 60 FR 11977.

    AR 87-3(9) Hart v. Bowen, 799 F.2d 567 (9th Cir. 1986)--Current 
Market Value of an Installment Sales Contract as an Excess Resource.
    Notice of Rescission Published: February 9, 1995, at 60 FR 7782.

    AR 87-5(3) Velazquez v. Heckler, 802 F.2d 680 (3d Cir. 1986)--
Consideration of Vocational Factors in Past Work Determinations.
    Notice of Rescission Published: July 16, 1990, at 55 FR 28943.

    AR 88-5(1) McCuin v. Secretary of Health and Human Services, 817 
F.2d 161 (1st Cir. 1987)--Reopening by the Appeals Council of Decisions 
of Administrative Law Judges under Titles II and XVI of the Social 
Security Act.
    Notice of Rescission Published: February 23, 1994, at 59 FR 8650.

    AR 88-7(5) Hickman v. Bowen, 803 F.2d 1377 (5th Cir. 1986)--
Evaluation of Loans of In-Kind Support and Maintenance for Supplemental 
Security Income Benefit Calculation Purposes.
    Notice of Rescission Published: September 8, 1992, at 57 FR 40918.

    AR 90-1(9) Paxton v. Secretary of Health and Human Services, 856 
F.2d 1352

[[Page 1039]]

(9th Cir. 1988)--Treatment of a Dependent's Portion of an Augmented 
Veterans Benefit Paid Directly To a Veteran--Title XVI of the Social 
Security Act.
    Notice of Rescission Published: November 17, 1994, at 59 FR 59416.

    AR 90-5(2) Kier v. Sullivan, 888 F.2d 244 (2d Cir. 1989), reh'g 
denied, January 22, 1990--Assessment of Residual Functional Capacity in 
Disabled Widows' Cases--Title II of the Social Security Act.
    Notice of Rescission Published: May 22, 1991, at 56 FR 23592.

    AR 90-6(1) Cassas v. Secretary of Health and Human Services, 893 
F.2d 454 (1st Cir. 1990), reh'g denied, April 9, 1990--Assessment of 
Residual Functional Capacity in Disabled Widows' Cases--Title II of the 
Social Security Act.
    Notice of Rescission Published: May 22, 1991, at 56 FR 23591.

    AR 90-7(9) Ruff v. Sullivan, 907 F.2d 915 (9th Cir. 1990)--
Assessment of Residual Functional Capacity in Disabled Widows' Cases--
Title II of the Social Security Act.
    Notice of Rescission Published: May 22, 1991, at 56 FR 23592.

    AR 93-6(8) Brewster on Behalf of Keller v. Sullivan, 972 F.2d 898 
(8th Cir. 1992)--Interpretation of the Secretary's Regulation Regarding 
Presumption of Death--Title II of the Social Security Act.
    Notice of Rescission Published: July 14, 1995, at 60 FR 36327.

[[Page 1041]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations which were 
made by documents published in the Federal Register since January 1, 
1986, are enumerated in the following list. Entries indicate the nature 
of the changes effected. Page numbers refer to Federal Register pages. 
The user should consult the entries for chapters and parts as well as 
sections for revisions.
For the period before January 1, 1986, see the ``List of CFR Sections 
Affected, 1949-1963, 1964-1972, and 1973-1985'' published in seven 
separate volumes.

                                  1986

20 CFR
                                                                   51 FR
                                                                    Page
Chapter III
404  Technical correction....................................5989, 15883
    SSA representation project.....................................21156
404.1--404.3 (Subpart A)  Heading and authority citation revised 
                                                                   11718
404.1  Introductory text, (c), (j), (l), (p), and (q) revised; (r) 
        through (v) added..........................................11718
404.2  (a) introductory text, (a)(1), (b) introductory text, and 
        (b)(1) revised; (a) (2) through (13) and (b)(3) removed; 
        (a) (14) through (19) and (b) (4) and (5) redesignated as 
        (a) (2) through (7) and (b) (3) and (4); new (b) (3) and 
        (4) revised................................................11718
404.3  (c) amended.................................................11718
404.201--404.290 (Subpart C)  Authority citation revised.....4482, 12603
404.211  (d)(1) revised; (d)(4) added...............................4482
404.212  (b)(1) amended; authority citation removed.................4482
404.270  Amended...................................................12603
404.271  (a) and (c) amended.......................................12603
404.272  Revised...................................................12603
404.273  Revised...................................................12603
404.274  Revised...................................................12603
404.275  Revised; authority citation removed.......................12604
404.277  (b) nomenclature change...................................12604
404.278  Added.....................................................12604
404.301--404.395 (Subpart D)  Authority citation revised....4482, 10615, 
                                                            12603, 17617
404.310  (b) amended...............................................10616
404.312  (b) amended...............................................12604
404.313  Added.....................................................12605
404.315  (c) amended........................................10616, 16166
404.316  (c)(1)(iv) and (v) removed; (c)(1)(vi) redesignated as 
        (c)(1)(iv); (c)(1)(iii) amended; new (c)(1)(iv) Example 
        revised; interim...........................................17617
404.320  (b)(1) amended............................................10616
404.331  Introductory text revised; (f) added; authority citation 
        removed....................................................11911
404.332  (a) and (b)(3) revised; (b)(8) added; authority citation 
        removed....................................................11911
404.333  Revised...................................................11912
404.335  (e) revised; authority citation removed....................4482
    (a)(2)(ii) and (c) amended.....................................10616
404.336  (e) revised; authority citation removed....................4482
404.337  (b)(1) removed; (b)(2), (3), (4), and (5) redesignated as 
        (b)(1), (2), (3), and (4)...................................4482
    (c)(1)(iv) and (v) removed; (c)(1)(vi) redesignated as 
(c)(1)(iv); (c)(1)(iii) amended; interim...........................17617
404.338  Amended....................................................4482

[[Page 1042]]

404.352  (c)(1)(iv) and (v) removed; (c)(1)(vi) redesignated as 
        (c)(1)(iv); (c)(1)(iii) amended; interim...................17617
404.353  (b) amended; authority citation removed...................12606
404.401--404.468 (Subpart E)  Authority citation revised...10616, 11911, 
                                                            12603, 23052
404.403  (b) introductory text and (e)(1) amended; (e) heading 
        revised; (f) added; authority citation removed.............12606
404.407  (d) revised...............................................12606
404.408a  (b)(4) added; (d)(2) revised.............................23052
404.415  (b) amended; authority citation removed...................11912
404.416  (a) amended...............................................11912
404.417  (b) amended; authority citation removed...................11912
404.450  (c) amended...............................................10616
404.452  (c) amended...............................................10616
404.467  (a) and (b) amended.......................................10616
404.601--404.641 (Subpart G)  Authority citation revised.....4482, 41951
404.611  (a) revised...............................................41951
404.621  (a)(2)(iii) amended; (a)(2)(iv) added; authority citation 
        removed.....................................................4482
404.640  (b)(2) revised............................................37720
404.900--404.999d (Subpart J)  Authority citation revised....8808, 15471
    Authority citation revised; section authority citations 
removed.....................................................28545, 44983
404.900  (a)(2) and (3) revised......................................300
    (a) introductory text revised...................................8808
404.903  (n) added..................................................8808
404.904  Revised.....................................................300
404.905  Revised.....................................................300
404.906  Added.....................................................15471
404.907  Revised.....................................................300
404.913  Added.......................................................300
404.914  Added.......................................................300
    (c)(1) amended..................................................8808
404.915  Added.......................................................301
404.916  Added.......................................................301
404.917  Redesignated as 404.919; new 404.917 added..................302
404.918  Redesignated as 404.920; new 404.918 added..................302
404.919  Redesignated from 404.917...................................302
404.920  Redesignated as 404.921 and revised; new 404.920 
        redesignated from 404.918....................................302
404.921  Redesignated as 404.922; new 404.921 redesignated from 
        404.920 and revised..........................................302
404.922  Redesignated from 404.921...................................302
404.929--404.941  Undesignated center heading revised................302
404.929  Heading revised.............................................302
404.930  Heading and (a) revised.....................................303
404.932  Heading revised.............................................303
404.933  Heading revised.............................................303
404.935  Heading revised.............................................303
404.936  Heading revised.............................................303
404.938  Heading revised.............................................303
404.944--404.965  Undesignated center heading revised................303
404.944  Heading revised.............................................303
404.946  Heading revised.............................................303
404.948  Heading revised.............................................303
404.950  Heading revised.............................................303
404.951  Heading revised.............................................303
404.952  Heading revised.............................................303
404.953  Heading revised.............................................303
404.955  Heading revised.............................................303
404.956  Heading revised.............................................303
404.957  Heading revised.............................................303
404.958  Heading revised.............................................303
404.959  Heading revised.............................................303
404.960  Heading revised.............................................303
404.988  (c)(7) revised............................................18313
404.992  Revised.....................................................303
404.993  Revised.....................................................303
404.999a--404.999d  Undesignated center heading added...............8808
404.999a  Added.....................................................8808
404.999b  Added.....................................................8808
404.999c  Added.....................................................8808
404.999d  Added (effective date pending)............................8809
    OMB number..............................................28545, 44983
404.1201--404.1290 (Subpart M)  Authority citation revised.........17174
404.1281  (a) revised; authority citation removed..................17174
404.1286  (a) revised; authority citation removed..................17174
404.1501--404.1599 (Subpart P)  Authority citation revised........10616, 
                                                            16824, 17617
404.1501  Technical correction.....................................16015
404.1505  (b) amended..............................................10616

[[Page 1043]]

404.1546  Revised....................................................304
404.1579  (b)(5) and (c)(4) corrected...............................7063
    (c)(3), (d) introductory text and (1), (f) heading and 
introductory text corrected........................................16015
404.1586  (g)(1)(iv) and (v) removed; (g)(1)(vi) redesignated as 
        (g)(1)(iv); (g)(1)(iii) amended; interim...................17617
404.1589  Revised..................................................16825
404.1590  Revised..................................................16825
404.1594  (b)(3) Example 2, (4) introductory text and (ii), and 
        (c)(3) introductory text and (v) corrected..................7063
    (b)(2) Example, (4)(ii), and (7) and (d)(2) Example 2 
corrected..........................................................16015
404.1596  (c)(4)(iii) and (iv) removed; (c)(4)(v) redesignated as 
        (c)(4)(iii); (c)(4)(ii) amended; interim...................17617
404.1597  Amended; interim.........................................17618
404.1501--404.1599 (Subpart P)  Appendix 1 corrected...5989, 7933, 16016
416.401--416.435 (Subpart D)  Authority citation revised...........10616
    SSA representation project.....................................21156
    Authority citation corrected...................................43709
416.101  (j), (p), (r), and (s) revised; (v) added.................11718
416.105  Revised...................................................11718
416.120  (b)(1) and (c) (6), (7), and (8) revised; (b)(3) removed; 
        (b)(4) redesignated as (b)(3) and revised; (d) amended.....11719
416.121  (d) amended...............................................11719
416.200--416.269 (Subpart B)  Authority citation revised....13492, 34464
416.211  (a) revised...............................................13492
    (a)(1) corrected...............................................17332
    (c)(5)(iii) revised............................................34464
    Technical correction...........................................36221
416.301--416.360 (Subpart C)  Authority citation revised...........13492
416.315  Example revised...........................................13492
416.320  (a)(2) amended............................................13493
416.325  (b)(1) revised............................................13493
416.330  Revised...................................................13493
416.335  Revised...................................................13493
416.340  Introductory text and (d)(1) revised......................13493
416.345  (e)(1) revised............................................13493
416.401--416.435 (Subpart D)  Authority citation revised....12606, 13493
416.405  Revised...................................................12606
    Corrected......................................................16016
416.410  Revised...................................................12606
416.412  Revised...................................................12606
    Corrected......................................................16016
416.413  Revised...................................................12607
416.421  Added.....................................................13493
416.428  Amended...................................................10616
416.430  Amended...................................................10616
416.501--416.570 (Subpart E)  Authority citation revised...........10616
416.532  (e) amended...............................................10616
416.701--416.732 (Subpart G)  Authority citation revised...........10616
416.704  (a)(1), (2), and (3) amended..............................10616
416.708  (e) and (k)(4) and (5) amended............................10616
416.901--416.998 (Subpart I)  Authority citation revised...........16826
416.946  Revised.....................................................304
416.986  (a) introductory text and (2) corrected....................7063
416.989  Revised...................................................16826
416.989a  Added....................................................16826
416.990  Revised...................................................16826
416.992  (d)(2) correctly designated...............................16015
416.994  (b)(1)(iv)(C), (2)(iv)(C), and (3) introductory text, 
        (iii)(B)(1) and (2), (iv)(A) Example 1 and (B) Example, 
        (c)(1)(i) Example 1 and (3)(i) corrected....................7063
    (b)(1)(i) Example 2, (ii), and (vii), (2)(iv) introductory 
text and (C), (3)(i), (iv)(A) Example 2 and (B), (4)(i) and (iii), 
(5) heading and introductory text and (iv), (c)(1)(v), (2)(i) and 
(ii), (3)(iii)(A) Example, (4)(i), (5) heading and introductory 
text, (6)(i)(F), and (7) corrected.................................16015
416.998  Corrected.................................................16015
416.1100--416.1182 (Subpart K)  Authority citation revised........10616, 
                                                            34464, 39523
416.1101  Amended..................................................10616
416.1124  (c)(10) revised..........................................39523
416.1130  (b) revised..............................................13488
416.1144  (a)(1) introductory text revised.........................34464
    Technical correction...........................................36221
416.1155  Removed..................................................39523
416.1156  Removed..................................................39523

[[Page 1044]]

416.1157  Added....................................................39523
    (b) corrected..................................................43709
416.1160  (c) amended..............................................10616
416.1161  (a)(17) and (b) revised..................................39523
416.1180  Amended..................................................10616
416.1201--416.1266 (Subpart L)  Authority citation revised........10616, 
                                                                   39523
416.1201  (a) amended..............................................39523
416.1203  Amended..................................................10616
416.1210  Introductory text republished and new (m) added..........34464
    Technical correction...........................................36221
416.1212  (d) correctly added.......................................7437
416.1226  Amended..................................................10616
416.1233  Added....................................................34464
    Technical correction...........................................36221
416.1262  (a) and (b) amended......................................10616
416.1321--416.1338 (Subpart M)  Authority citation revised........13494, 
                                                                   17618
416.1321  (b) revised..............................................13494
    (d)(3) and (4) removed; (d)(5) redesignated as (d)(3); (d)(2) 
amended; interim...................................................17618
416.1322  Revised..................................................13494
416.1323  (b) revised..............................................13494
416.1324  (b) revised..............................................13494
416.1325  Revised..................................................13494
416.1326  (b) revised..............................................13494
416.1327  Revised..................................................13494
    (a)(3) and (b) Example 2 corrected.............................17332
416.1328  (d) revised..............................................13495
416.1329  Revised..................................................13495
416.1330  Revised..................................................13495
416.1338  (a)(4) and (5) removed; (a)(6) redesignated as (a)(4); 
        (a)(3) amended; new (a)(4) Example revised; interim........17618
416.1400--416.1499 (Subpart N)  Authority citation revised.........8809, 
                                                     15472, 28545, 44983
416.1400  (a)(2) and (3) revised.....................................305
416.1403  (a)(9) added..............................................8809
416.1404  (b) introductory text, (b)(3) and (c) revised..............305
416.1405  Revised....................................................305
416.1406  Added....................................................15473
416.1407  Revised....................................................305
416.1413  (d) added..................................................305
416.1413a  Redesignated from 416.1414................................305
416.1413b  Redesignated from 416.1415 and revised....................305
416.1413c  Redesignated from 416.1416................................305
416.1414  Redesignated as 416.1413a; new 416.1414 added..............305
    (c)(1) amended..................................................8809
416.1415  Redesignated as 416.1413b and revised; new 416.1415 
        added........................................................305
416.1416  Redesignated as 416.1413c..................................305
    Added............................................................306
416.1417  Redesignated as 416.1419; new 416.1417 added...............306
416.1418  Redesignated as 416.1420; new 416.1418 added...............306
416.1419  Redesignated from 416.1417.................................306
416.1420  Redesignated as 416.1421; new 416.1420 redesignated from 
        416.1418.....................................................306
416.1421  Redesignated as 416.1422; new 416.1421 redesignated from 
        416.1420.....................................................306
    Revised..........................................................307
416.1422  Redesignated from 416.1421.................................306
416.1429--416.1441  Undesignated center heading revised..............307
416.1429  Heading revised............................................307
416.1430  Heading and (a) revised....................................307
416.1432  Heading revised............................................307
416.1433  Heading revised............................................307
416.1435  Heading revised............................................307
416.1436  Heading revised............................................307
416.1438  Heading revised............................................307
416.1444--416.1465  Undesignated center heading revised..............307
416.1444  Heading revised............................................307
416.1446  Heading revised............................................307
416.1448  Heading revised............................................307
416.1450  Heading revised............................................307
416.1451  Heading revised............................................308
416.1452  Heading revised............................................308
416.1453  Heading revised............................................308
416.1455  Heading revised............................................308
416.1456  Heading revised............................................308
416.1457  Heading revised............................................308
416.1458  Heading revised............................................308
416.1459  Heading revised............................................308
416.1460  Heading revised............................................308
416.1492  (b) and (c) revised; (d) through (f) redesignated as (e) 
        through (g); new (d) added; new (e) and (f) revised..........308
416.1495--416.1499  Undesignated center heading added...............8810

[[Page 1045]]

416.1495  Added.....................................................8810
416.1496  Added.....................................................8810
416.1498  Added.....................................................8810
416.1499  Added (effective date pending)............................8810
    OMB number..............................................28545, 44983
416.1802  (d) revised..............................................13495
416.2001--416.2098 (Subpart T)  Authority citation revised.........10616
416.2050  (c) amended..............................................10616
422.140  Revised.....................................................308
422.203  (a)(1) and (b)(2) revised...................................308
422.501--422.527 (Subpart F)  Authority citation added.............41952
422.505  (a) revised...............................................41952

                                  1987

20 CFR
                                                                   52 FR
                                                                    Page
Chapter III
401  Authority citation removed....................................27540
401.100--401.125 (Subpart A)  Authority citation added.............27540
401.200--401.220 (Subpart B)  Authority citation added.............27540
401.300--401.350 (Subpart C)  Authority citation added.............27540
401.400--401.420 (Subpart D)  Authority citation added.............27540
401.500.401.510 (Subpart E)  Authority citation added..............27540
401.600--401.604 (Subpart F)  Authority citation added.............27540
404  Technical correction..........................................38835
404.1--404.3 (Subpart A)  Authority citation revised; section 
        authority citations removed................................27540
404.101--404.146 (Subpart B)  Authority citation revised...........27540
    Appendix amended................................................8247
404.201--404.290 (Subpart C)  Authority citation revised; section 
        authority citations removed..........................8247, 27540
    Appendixes introductory text revised; Appendixes I, II, IV, V, 
and VI amended......................................................8247
    Appendix VII added..............................................8248
404.212  (b)(4) added..............................................47916
404.213  Added.....................................................47916
404.240  Amended...................................................47917
404.243  Added.....................................................47918
404.251  (c) added.................................................47918
404.280  Revised...................................................47918
404.281  (f) added.................................................47918
404.282  Amended...................................................47918
404.284  (a) amended...............................................47918
404.288  Added.....................................................47918
404.301--404.395 (Subpart D)  Authority citation revised; section 
        authority citations removed.........................19136, 27540
    Authority citation revised.....................................26955
404.305  (b) revised...............................................19136
    (b) corrected..................................................21410
404.362  (b)(2) amended............................................37604
404.366  Introductory text and (b) introductory text revised.......26955
404.401--404.468 (Subpart E)  Authority citation revised; section 
        authority citations removed...................8249, 26145, 27540
404.417  (b) revised...............................................26145
404.429  (c)(1) revised.............................................8249
404.460  (c)(3) amended.............................................8249
    (d) added......................................................26145
404.463  (a)(7) and (b) amended.....................................8249
404.501--404.515 (Subpart F)  Authority citation revised; section 
        authority citations removed................................27540
404.601--404.641 (Subpart G)  Authority citation revised; section 
        authority citations removed..........................4003, 27540
404.620  (a) revised................................................4003
404.701--404.780 (Subpart H)  Authority citation revised; section 
        authority citations removed................................27540
404.801--404.831 (Subpart I)  Authority citation revised; section 
        authority citations removed................................27540
404.900--404.999d (Subpart J)  Authority citation revised; section 
        authority citations removed..........................4004, 27540
404.900  (b) amended................................................4004
404.965  Removed...................................................17286
404.970  (b) revised................................................4004
404.976  (b) revised................................................4004
404.979  Revised....................................................4004

[[Page 1046]]

404.1001--404.1096 (Subpart K)  Authority citation revised; 
        section authority citations removed..................8249, 27541
    Section authority citations removed............................29662
    Authority citation correctly revised...........................39635
404.1043  Revised..................................................29662
404.1047  Revised...................................................8249
404.1055  Revised..................................................29662
404.1059  (g) revised..............................................29662
404.1060  (a) and (e) revised......................................29662
404.1096  (b)(1)(i) through (xvi) removed; (b)(1) table added.......8250
404.1201--404.1290 (Subpart M)  Authority citation revised; 
        section authority citations removed........................27541
404.1301--404.1371 (Subpart N)  Authority citation revised.........27541
    Authority citation corrected...................................33316
404.1341  (a) and (c) revised; (d) added...........................29663
404.1401--404.1413 (Subpart O)  Authority citation revised.........27541
404.1501--404.1599 (Subpart P)  Authority citation revised; 
        section authority citations removed........................27541
404.1503  (e) added................................................33926
404.1526  (b) amended; (c) revised.................................33926
404.1546  Amended..................................................33926
404.1594  (f)(7) amended...........................................44971
404.1599  (e) amended..............................................37605
404.1601--404.1694 (Subpart Q)  Authority citation revised.........27541
404.1615  Revised..................................................33926
404.1616  Added....................................................33927
404.1617  Added....................................................33927
404.1700--404.1799 (Subpart R)  Authority citation revised.........27541
404.1800--404.1825 (Subpart S)  Authority citation revised.........27541
404.1901--404.1930 (Subpart T)  Authority citation revised.........27541
404.2001--404.2065 (Subpart U)  Authority citation revised; 
        section authority citations removed........................27541
404.2101--404.2127 (Subpart V)  Authority citation revised.........27541
416.101--416.121 (Subpart A)  Authority citation revised; section 
        authority citations removed................................27541
416.200--416.269 (Subpart B)  Authority citation revised; section 
        authority citations removed................................27541
416.250  (e) amended...............................................37605
416.301--416.360 (Subpart C)  Authority citation revised...........27541
416.401--416.435 (Subpart D)  Authority citation revised...........27541
416.501--416.570 (Subpart E)  Authority citation revised.....8881, 27541
416.535  Revised....................................................8881
416.550  Revised....................................................8882
416.570  Heading revised; existing text designated as (a); (b) 
        added.......................................................8882
416.601--416.665 (Subpart F)  Authority citation revised...........27541
416.701--416.732 (Subpart G)  Authority citation revised...........27541
    Authority citation corrected...................................31477
416.801--416.806 (Subpart H)  Authority citation revised...........27541
416.901--416.998 (Subpart I)  Authority citation revised; section 
        authority citations removed................................27541
416.903  (e) added.................................................33927
416.926  (b) amended; (c) revised..................................33928
416.946  Amended...................................................33928
416.994  (b)(5)(vii) amended.......................................44971
416.1001--416.1094 (Subpart J)  Authority citation revised.........27541
416.1015  Revised..................................................33928
416.1016  Added....................................................33928
416.1017  Added....................................................33928
416.1100--416.1182 (Subpart K)  Authority citation revised..........8882
    Authority citation revised; section authority citations 
removed............................................................27541
416.1148  (a) and (b)(2) revised....................................8882
416.1149  (c)(2)(ii) revised........................................8882
416.1160  Revised...................................................8882
416.1161  Introductory text and (b) revised; (d) added..............8883
    (b) amended....................................................44971

[[Page 1047]]

416.1163  (b) introductory text and (1) revised; (c) through (f) 
        redesignated as (d) through (g) and revised; new (c) 
        added; introductory text republished........................8883
416.1165  Revised...................................................8885
416.1166  Introductory text revised; (c), (d), and (e) 
        redesignated as (d), (e), and (f); new (c) added............8887
416.1166a  Added....................................................8887
416.1100--416.1182 (Subpart K)  Appendix amended....................8888
416.1201--416.1266 (Subpart L)  Authority citation revised...8888, 31762
    Authority citation revised; section authority citations 
removed.....................................................27541, 29841
416.1201  (b) and (c)(1) revised....................................4283
    (c)(1) correctly revised.......................................16845
    (a) corrected..................................................32240
416.1202  (b) revised...............................................8888
    (a) and (b) revised............................................29841
416.1204  Added.....................................................8888
416.1207  Added.....................................................4283
416.1240  Revised..................................................31762
    Technical correction...........................................35187
416.1260  (a)(2) revised...........................................29841
416.1321--416.1338 (Subpart M)  Authority citation revised; 
        section authority citations removed........................27541
416.1400--416.1499 (Subpart N)  Authority citation revised; 
        section authority citations removed..................4004, 27541
416.1400  (b) amended...............................................4004
416.1465  Removed..................................................17286
416.1470  (b) revised...............................................4004
416.1476  (b) revised...............................................4004
416.1479  Revised...................................................4005
416.1500--416.1599 (Subpart O)  Authority citation revised.........27541
416.1600--416.1618 (Subpart P)  Authority citation revised........21943, 
                                                                   27541
416.1615  (a) (2) and (3) revised; (a)(4) added....................21943
416.1618  Revised..................................................21943
    (b) introductory text correctly revised........................34773
    (b) introductory text corrected................................35836
416.1701--416.1725 (Subpart Q)  Authority citation revised.........27541
416.1801--416.1881 (Subpart R)  Authority citation revised...8889, 27542
416.1821  Heading, (a), and (b) revised.............................8889
416.1851  (c) revised; introductory text republished................8889
416.1901--416.1922 (Subpart S)  Authority citation revised.........27542
416.2001--416.2098 (Subpart T)  Authority citation revised; 
        section authority citations removed........................27542
416.2095  Revised..................................................36241
416.2096  Revised..................................................36241
416.2097  Redesignated as 416.2098; new 416.2097 added.............36242
416.2098  Redesignated as 416.2099; new 416.2098 redesignated from 
        416.2097...................................................36242
    Revised........................................................36243
416.2099  Redesignated from 416.2098...............................36242
    Revised........................................................36244
416.2101--416.2119 (Subpart U)  Authority citation revised.........27542
416.2201--416.2227 (Subpart V)  Authority citation revised.........27542

                                  1988

20 CFR
                                                                   53 FR
                                                                    Page
Chapter III
404  Medical-Vocational Rules Update...............................51097
404.315  (c) corrected; CFR correction.............................43681
404.509  Revised...................................................25483
404.1001--404.1096 (Subpart K)  Authority citation revised.........38944
404.1018  Revised..................................................38944
    (g)(2)(iii) corrected..........................................44551
404.1018a  Added...................................................38945
404.1018b  Added...................................................38946
404.1200--404.1299 (Subpart M)  Revised (effective date pending in 
        part)......................................................32976
404.1501--404.1599 (Subpart P)  Authority citation revised.........29020
404.1597  Existing text designated as (a); new (a) heading and (b) 
        added......................................................29020
    (b) corrected..................................................39015
404.1597a  Added...................................................29020
    (d), (i) heading, introductory text, (2), and (6) corrected....39015

[[Page 1048]]

404.1501--404.1599 (Subpart P)  Appendix 1 amended.................29879
416  Medical-Vocational Rules Update...............................51097
416.101--416.121 (Subpart A)  Authority citation revised...........12941
416.110  (f)(2) amended............................................12941
    Technical correction...........................................16615
416.501--416.570 (Subpart E)  Authority citation revised...........16543
416.550  (b)(2) revised............................................16543
416.554  Revised...................................................16543
    Introductory text corrected....................................19856
    Revised........................................................25484
416.556  Added.....................................................16544
416.901--416.998 (Subpart I)  Appendix 1 added; eff. to 12-31-89 
                                                                    3741
    Authority citation revised.....................................29023
416.934  Introductory text and (k) revised; eff. to 12-31-89........3741
416.995  Added.....................................................29023
416.996  Added.....................................................29023
    (e)(1) corrected...............................................39015
416.1157  (a) and (c) amended......................................35808
416.1163  (d)(2)(iii) revised......................................25151
416.1201  (a) revised..............................................23231
416.1242  (a) and (b) revised; interim.............................13257
416.1245  Added; interim...........................................13257
416.1246  (d) and (f) revised; interim.............................13257
416.2025  (b) (1) and (3) revised..................................25151
416.2098  (e)(2) example correctly revised..........................4135
416.2101--416.2176 (Subpart U)  Revised............................12941
    Technical correction...........................................16615

                                  1989

20 CFR
                                                                   54 FR
                                                                    Page
Chapter III
404.407  (c) revised................................................5603
404.953  (b) revised...............................................37792
404.955  (d) and (e) revised; (f) added............................37792
404.983  Undesignated center heading added; section revised........37792
404.984  Added.....................................................37792
    (a) corrected..................................................40779
404.1501--404.1599 (Subpart P)  Appendix 1 amended.................50235
404.1574  (b)(2)(v), (vi), (3)(v), (vi), (4)(v), and (vi) revised; 
        (b)(2)(vii), (3)(vii), and (4)(vii) added..................53605
404.1592  (b) revised..............................................53605
404.2010  (b)(6) amended...........................................35483
404.2040  (a) revised..............................................35483
404.2045  (a) amended..............................................35483
416.201  Amended; interim..........................................19164
416.211  (d) and Example revised; interim..........................19164
416.414  (b) (1), (2), and (3)(i) revised; interim.................19164
416.420  (b)(4) added..............................................31657
416.432  (a) and (b) amended; interim..............................19164
416.610  (b)(3) amended............................................35483
416.934  (k) revised; eff. to 12-31-91.............................53607
416.974  (b)(2)(iv), (v), (vi), (3)(iv), (v), (vi), (4)(v), and 
        (vi) revised; (b)(2)(vii), (3)(vii), and (4)(vii) added....53605
416.1124  (a) amended; interim.....................................19164
416.1160  (b)(2)(ii) amended; interim..............................19164
416.1163  (f)(5) amended; interim..................................19164
416.1165  (g)(6) heading and text amended; interim.................19164
416.1233  (a), (c), and (e) revised; interim.......................19164
416.1453  (c) revised..............................................37793
416.1455  (d) and (e) revised; (f) added...........................37793
416.1483  Undesignated center heading added; section revised.......37793
416.1484  Added....................................................37793
416.2095  (a)(2) amended; interim..................................19165
416.2096  (a), (b) introductory text, and (c) introductory text 
        revised; (d) added; interim................................19165
416.2097  (a) introductory text revised; (d) added; interim........19165
    (d) corrected..................................................23018
416.2098  (a) amended; interim.....................................19165
    (a) corrected..................................................23018
416.2099  (a) (3) and (4) amended; (a)(5) added; interim...........19165
422.201--422.210 (Subpart C)  Heading and authority citation 
        revised.....................................................4268

[[Page 1049]]

422.201  Nomenclature change; (a) and (b) amended; (c) and (d) 
        revised.....................................................4268
422.203  (a)(3), (b) (1) and (2) amended; (a)(1)(iii), (2)(ii), 
        and (c) revised; (d) removed................................4268
422.205  (a), (b), (d), and (f) amended.............................4268
422.210  Heading and (a) revised; (c) and (d) amended...............4268
422.401--422.449 (Subpart E)  Authority citation revised............4269
422.426  Nomenclature change........................................4269
422.428  Nomenclature change........................................4269
422.444  Nomenclature change........................................4269
422.445  Nomenclature change........................................4269

                                  1990

20 CFR
                                                                   55 FR
                                                                    Page
Chapter III
404.130  (f) amended................................................7313
404.201--404.290 (Subpart C)  Appendix II amended..................21382
404.213  (b)(3) removed; (b)(4) redesignated as (b)(3); (b) 
        introductory text and new (3), (c)(2), (d), (e)(1), and 
        (3) revised................................................21382
404.241  (a)(4) revised............................................21382
404.335  (b)(1) and (2) amended; (b)(3) added......................25825
404.336  (e)(4) removed............................................25300
    (b)(1) and (2) amended; (b)(3) added...........................25825
404.411  (a) revised...............................................50551
404.428  (a)(2) amended............................................37461
404.430  (a) introductory text, (1), (2), (d) introductory text, 
        (1), (iv) and (v) revised; (d)(1)(vi) through (xiii) added
                                                                   37461
404.501--404.515 (Subpart F)  authority citation revised............7313
404.501  (c) added; authority citation removed......................7313
404.503  (b)(1)(i), (3) and (6) amended.............................7313
404.823  Introductory text republished; (b) revised................24891
404.903  (b) added..................................................1018
404.985  Added......................................................1018
404.1000--404.1096 (Subpart K)  authority citation revised..........7309
404.1001  (d)(3) revised............................................7309
404.1004  (a)(2)(ii) and (b)(5) amended............................51687
404.1018  (a) introductory text and (b)(3) revised; (b)(4) added 
                                                                   24891
404.1026  (a) revised...............................................7309
404.1041  (d) revised; (e) and (f) added............................7309
404.1042  (f) added.................................................7309
404.1046  Revised...................................................7309
    (a) introductory text corrected................................17530
404.1048  (a) revised...............................................7309
404.1049  (a) and (b) revised; (c) through (e) redesignated as (d) 
        through (f); new (c) added..................................7310
    (a) introductory text corrected................................17530
404.1050  Revised...................................................7310
404.1051  Revised...................................................7310
404.1051A  Removed..................................................7310
404.1052  Revised...................................................7310
404.1053  Revised...................................................7310
404.1054  Redesignated from 404.1055................................7310
404.1055  Redesignated as 404.1054 and revised; new 404.1055 
        redesignated from 404.1056..................................7310
404.1056  Redesignated as 404.1055; new 404.1056 redesignated from 
        404.1057....................................................7310
404.1057  Redesignated as 404.1056; new 404.1057 redesignated from 
        404.1058....................................................7310
404.1058  Redesignated as 404.1057; new 404.1058 redesignated from 
        404.1059 and (a)(1) and (2)(iii) and (g) revised; 
        (a)(2)(iv) and (v) added;...................................7310
404.1059  Redesignated as 404.1058 and (a)(1) and (2)(iii) 
        revised; (a)(2)(iv) and (v) added; (g) revised; new 
        404.1059 redesignated from 404.1060.........................7310
404.1060  Redesignated as 404.1059..................................7310
404.1068  (f) revised...............................................7311
404.1070  Revised...................................................7311
404.1071  (a) revised...............................................7311
404.1501--404.1599 (Subpart P)  Authority citation revised.........2806,
                                              35287, 35578, 51208, 51687
404.1520a  (a) introductory text amended...........................51229
404.1560  Revised..................................................11011
404.1597a  (b)(1), (b)(3)(iii), and (h)(2)(iii) revised......2806, 35578
    Technical correction...........................................46131

[[Page 1050]]

404.1599  (e) amended..............................................51687
404.1501--404.1599 (Subpart P)  Appendix I amended................35287,
                                              51101, 51208, 51229, 51230
    Appendix I corrected...........................................38190
404.2101--404.2127 (Subpart V)  Heading and authority citation 
        revised.....................................................8453
404.2101  Revised...................................................8453
404.2102  (e) through (l) redesignated as (f) and (h) through (n); 
        introductory text and new (f), (h), (i), and (j) revised; 
        new (e) and new (g) added...................................8454
404.2103  Amended...................................................8454
404.2108  (e) removed; (f) and (g) redesignated as (e) and (f); 
        (a), (b), (d), and new (f) revised..........................8454
404.2109  Revised...................................................8454
404.2110  (c) amended...............................................8454
404.2111  Introductory text revised.................................8454
404.2112  Redesignated as 404.2114; new 404.2112 added..............8454
404.2113  Redesignated as 404.2115 and revised; new 404.2113 added
                                                                    8454
404.2114  Redesignated from 404.2112................................8454
404.2115  Redesignated from 404.2113 and revised....................8454
404.2116  Redesignated as 404.2117 and introductory text, (d), and 
        (e) revised; (f) redesignated as (g); new (f) added; new 
        404.2116 added..............................................8454
404.2117  Redesignated as 404.2118; new 404.2117  Redesignated 
        from 404.2116 and introductory text, (d), and (e) revised; 
        (f) redesignated as (g); new (f) added;.....................8454
404.2118  Redesignated as 404.2119 and revised; new 404.2118 
        redesignated from 404.2117..................................8455
404.2119  Redesignated from 404.2118 and revised....................8455
404.2120  (c) amended...............................................8456
404.2127  (a) amended; (c) revised..................................8456
410.601--410.699 (subpart F  Authority citation revised.............1019
410.615  (j) added..................................................1019
410.670c  Added.....................................................1019
416  Technical correction..........................................4936,
                                                             6776, 42148
416.501--416.570 (Subpart E)  Authority citation revised............7313
416.502  Revised....................................................4422
416.520  Revised....................................................4422
    (b)(1) and (c) corrected........................................7411
416.537  (a) amended................................................7313
416.558  (a) revised...............................................33668
416.560  Revised...................................................33669
416.570  Revised...................................................33669
    Corrected......................................................42148
416.571  Added.....................................................33669
416.901--416.998 (Subpart I)  Authority citation revised...........11011
416.920a  (a) introductory text amended............................51236
416.960  Revised...................................................11011
416.1123  (e) added; interim.......................................20599
416.1124  (c)(12) and (13) amended; (c)(14) added..................28378
416.1161  (a)(18) added............................................28378
416.1210  (n) added................................................28378
416.1231  (b)(4) through (7) redesignated as (b)(5) through (8); 
        (a)(2), (b)(1), (3), new (7), and (8) revised; new (b)(4) 
        and (9) added..............................................28377
    Technical correction...........................................32733
416.1236  (a)(12) removed..........................................28378
416.1238  Added....................................................28378
416.1242  (a) and (b) revised; (d) added...........................10418
416.1245  Revised..................................................10419
416.1246  (d) and (f) revised......................................10419
416.1403  (a)(10) added.............................................1020
    (a)(2) and (b)(1) revised.......................................4423
416.1485  Added.....................................................1020
416.2201--416.2227 (Subpart V)  Heading and authority citation 
        revised.....................................................8456
416.2201  Revised...................................................8456
416.2202  (e) through (l) redesignated as (f) and (h) through (n); 
        introductory test and (f), (h), (i), and (j) revised; new 
        (e) and new (g) added.......................................8456
416.2203  Amended...................................................8456
    Corrected......................................................19423
416.2208  (e) removed; (f) and (g) redesignated as (e) and (f); 
        (a), (b), (d), and new (f) revised..........................8456
416.2209  Revised...................................................8456
416.2210  (c) amended...............................................8457

[[Page 1051]]

416.2211  Introductory text revised.................................8457
416.2212  Redesignated as 416.2214; new 416.2212 added..............8457
416.2213  Redesignated as 416.2215 and revised; new 416.2213 added
                                                                    8457
416.2214  Redesignated from 416.2212................................8457
416.2215  Redesignated from 416.2213 and revised....................8457
416.2216  Redesignated as 416.2217 and introductory text, (d) and 
        (e) revised; (f) redesignated as (g); new (f) added; new 
        416.2216 added..............................................8457
416.2217  Redesignated as 416.2218; new 416.2217 redesignated from 
        416.2216 and introductory text, (d), and (e) revised; (f) 
        redesignated (g); new (f) added.............................8457
    (d) corrected..................................................14916
416.2218  Redesignated as 416.2219 and revised; new 416.2218 
        redesignated from 416.2217..................................8457
416.2219  Redesignated from 416.2218 and revised....................8458
416.2220  (c) amended...............................................8458
416.2227  (a) amended; (c) revised..................................8458
422  Technical correction..........................................49973
422.101--422.140 (Subpart B)  Authority citation added.............46664
422.103  Revised...................................................46664
    (b) and (c) revised.............................................7315
    (b)(2) corrected...............................................10030
422.105  Amended...................................................46665
422.106  Revised...................................................46665
422.107  Revised...................................................46665
422.110  Revised...................................................46666
422.112  (a) amended...............................................46666
422.115  Amended...................................................46666
422.120  Amended...................................................46666
422.401--422.499 (Subpart E)  Authority citation revised............1021
422.406  (b) redesignated as (c); new (b) added.....................1021
422.408  Removed....................................................1021
422.410  (l) added..................................................1021
422.416  (a) amended................................................1021
422.430  (a)(6) added...............................................1021
422.432  (a)(7) added...............................................1021
422.505  Amended...................................................25826

                                  1991

20 CFR
                                                                   56 FR
                                                                    Page
Chapter III
401.200--401.220 (Subpart B)  Authority citation revised...........66565
401.205  Revised...................................................66565
401.600 (Subpart F)  Revised.......................................66565
404.362  (b)(1) revised; (b)(2) removed; (b)(3) redesignated as 
        (b)(2).....................................................24000
404.367  Introductory text and (b) revised.........................35999
404.401--404.499 (Subpart E)  Authority citation revised...........41789
404.401  (d) revised...............................................41789
    Technical correction...........................................50157
404.402  (d)(1) revised............................................41789
    Technical correction...........................................50157
404.455  Revised...................................................11373
404.469  Added.....................................................41789
    Technical correction...........................................50157
404.501--404.526 (Subpart F)  Authority citation revised...........52468
404.520  Added.....................................................52468
404.521  Added.....................................................52468
404.522  Added.....................................................52469
404.523  Added.....................................................52469
404.524  Added.....................................................52469
404.525  Added.....................................................52469
404.526  Added.....................................................52469
404.621  (a)(2)(i) and (ii) removed; (a)(2)(iii) and (iv) 
        redesignated as (a)(2)(i) and (ii).........................58846
404.900--404.999d (Subpart J)  Authority citation revised...41790, 52469
404.902  (s) and (t) revised; (u) added............................41790
    Technical correction...........................................50157
404.903  (p) added.................................................52469
404.1501--404.1599 (Subpart P)  Authority citation revised........11304, 
                                              26031, 40781, 57941, 60060
404.1501  (g) revised..............................................57941
404.1502  Revised..................................................36954
404.1503a  Added...................................................36954
404.1508  Amended..................................................36954
404.1512  Revised..................................................36954
404.1513  (b) introductory text republished; (b)(6) and (c) 
        revised....................................................36955
404.1517  Revised..................................................36956
404.1519--404.1519b  Undesignated center heading added.............36956
404.1519  Added....................................................36956
404.1519a  Added...................................................36956
404.1519b  Added...................................................36956

[[Page 1052]]

404.1519f--404.1519q  Undesignated center heading added............36956
404.1519f  Added...................................................36956
404.1519g  Added...................................................36957
404.1519h  Added...................................................36957
404.1519i  Added...................................................36957
404.1519j  Added...................................................36957
404.1519k  Added...................................................36957
404.1519m  Added...................................................36957
404.1519n  Added...................................................36958
404.1519o  Added...................................................36958
404.1519p  Added...................................................36959
404.1519q  Added...................................................36959
404.1519s  Undesignated center heading and section added...........36959
404.1519t  Undesignated center heading and section added...........36960
404.1520  (a) revised..............................................36960
404.1525  Heading amended; (f) added...............................57941
404.1527  Revised..................................................36960
404.1529  Revised..................................................57941
404.1545  (a) revised..............................................36962
    Revised........................................................57943
404.1546  Revised..................................................36962
404.1569a  Added...................................................57943
404.1593  Revised..................................................36962
404.1501--404.1599 (Subpart P)  Appendix 1 corrected...............4542,
                                                            11304, 11305
    Appendix 1 amended...............................26031, 40781, 60060
    Appendix 2 amended.............................................57944
404.1602  Amended..................................................11018
404.1615  (c) revised..............................................11018
404.1620  Heading and (a) revised..................................11018
404.1623  (c) revised..............................................11019
404.1626  (a) and (e) revised......................................11019
404.1627  Revised..................................................11019
404.1633  (b) revised..............................................11020
404.1640  Revised..................................................11020
404.1641  (d) revised..............................................11020
404.1642  (a) revised..............................................11020
404.1644  (a) revised..............................................11020
404.1650  Revised..................................................11020
404.1660--404.1662  Undesignated center heading revised............11020
404.1660  Revised..................................................11020
404.1661  Revised..................................................11020
404.1662  Added....................................................11020
404.1670  Revised..................................................11021
404.1671  Revised..................................................11021
404.1680  Revised..................................................11021
404.1681  Revised..................................................11021
404.1745  Introductory text revised................................24131
404.1750  (a), (d) and (e)(2) revised; (f) amended.................24131
404.1760  Removed..................................................24131
404.1765  (a) through (n) redesignated as (b) through (o); new (a) 
        added......................................................24131
    (b)(1), (c) and (e) revised....................................24132
404.1770  (a)(3) revised...........................................24132
404.1776  Added....................................................24132
404.1790  (e) revised..............................................24132
404.1799  (c) and (e) revised......................................24132
416  Technical correction..........................................11304
416.901--416.998 (Subpart I)  Authority citation revised....57944, 65683
416.901  (e) through (l) redesignated as (f) through (m); (d) 
        amended; new (e) added......................................5553
    Regulation at 56 FR 5553 comment time extended.................21075
    (j) revised....................................................57944
416.902  Amended....................................................5553
    Regulation at 56 FR 5553 comment time extended.................21075
    Revised........................................................36962
416.903a  Added....................................................36963
416.905  Heading revised; (a) amended...............................5553
    Regulation at 56 FR 5553 comment time extended.................21075
416.906  Heading revised; amended...................................5553
    Regulation at 56 FR 5553 comment time extended.................21075
416.908  Amended...................................................36963
416.912  Revised...................................................36963
416.913  (a)(6) and (c)(3) added; (e) revised.......................5553
    Regulation at 56 FR 5553 comment time extended.................21075
    (b) introductory text republished; (b)(6) and (c) revised......36964
416.916  Amended....................................................5554
    Regulation at 56 FR 5554 comment time extended.................21075
416.917  Revised...................................................36964
416.919--416.919b  Undesignated center heading added...............36964
416.919  Added.....................................................36964
416.919a  Added....................................................36964
416.919b  Added....................................................36965
416.919f--416.919q  Undesignated center heading added..............36965

[[Page 1053]]

416.919f  Added....................................................36965
416.919g  Added....................................................36965
416.919h  Added....................................................36965
416.919i  Added....................................................36965
416.919j  Added....................................................36965
416.919k  Added....................................................36965
416.919m  Added....................................................36966
416.919n  Added....................................................36966
416.919o  Added....................................................36967
416.919p  Added....................................................36967
416.919q  Added....................................................36967
416.919s  Undesignated center heading and section added............36967
416.919t  Undesignated center heading and section added............36968
416.920  Heading revised............................................5554
    Regulation at 56 FR 5554 comment time extended.................21075
    (a) revised....................................................36968
416.921  Heading revised............................................5554
    Regulation at 56 FR 5554 comment time extended.................21075
416.923  Amended....................................................5554
    Regulation at 56 FR 5554 comment time extended.................21075
416.924  Revised....................................................5554
    (b) and (e) corrected..........................................13266
    (b) and (f) introductory text corrected........................13365
    Regulation at 56 FR 5554 comment time extended.................21075
416.924a  Added.....................................................5555
    (a) and (b)(1) corrected.......................................13365
    Regulation at 56 FR 5555 comment time extended.................21075
416.924b  Added.....................................................5555
    (d)(3) corrected...............................................13266
    Regulation at 56 FR 5555 comment time extended.................21075
416.924c  Added.....................................................5557
    (d)(5) corrected...............................................13266
    Regulation at 56 FR 5557 comment time extended.................21075
416.924d  Added.....................................................5558
    Regulation at 56 FR 5558 comment time extended.................21075
416.924e  Added.....................................................5559
    Regulation at 56 FR 5559 comment time extended.................21075
416.925  Heading amended; (f) added................................57944
416.926  Heading revised............................................5561
    Regulation at 56 FR 5561 comment time extended.................21075
416.926a  Added.....................................................5561
    Regulation at 56 FR 5561 comment time extended.................21075
416.927  Revised...................................................36968
416.929  Revised...................................................57944
416.934  (k) removed...............................................65684
416.945  (a) revised...............................................36970
    Revised........................................................57947
416.946  Revised...................................................36970
416.969a  Added....................................................57947
416.993  Revised...................................................36970
416.994  (c) removed; (d) redesignated as (c); heading, (a), 
        (b)(4)(ii), and new (c) revised.............................5562
    Regulation at 56 FR 5562 comment time extended.................21075
416.994a  Added.....................................................5562
    (b)(1) and (f)(4)(i) corrected.................................13266
    (d) introductory text corrected................................13365
    Regulation at 56 FR 5562 comment time extended.................21075
416.1002  Amended..................................................11021
416.1015  (c) revised..............................................11021
416.1020  Heading and (a) revised..................................11021
    (a) corrected..................................................13365
416.1023  (c) revised..............................................11022
416.1026  (a) and (e) revised......................................11022
416.1027  Revised..................................................11022
416.1033  (b) revised..............................................11023
416.1040  Revised..................................................11023
416.1041  (d) revised..............................................11023
416.1042  (a) revised..............................................11023
416.1044  (a) revised..............................................11023
416.1050  Revised..................................................11023
416.1060--416.1062  Undesignated heading revised...................11023
416.1060  Revised..................................................11023
416.1061  Revised..................................................11023
416.1062  Added....................................................11024
416.1070  Revised..................................................11024
416.1071  Revised..................................................11024
416.1080  Revised..................................................11024
416.1081  Revised..................................................11024
416.1100--416.1182 (Subpart K)  Authority citation revised.........36000
416.1102  Revised...................................................3212
416.1110  Introductory text revised.................................3212
416.1121  (e) and (g) revised......................................36000
416.1123  (b)(2) revised............................................3212
416.1201--416.1266 (Subpart L)  Authority citation revised.........36001
416.1201  (a)(4) added.............................................36001

[[Page 1054]]

416.1321--416.1338 (Subpart M)  Authority citation revised.........55453
416.1321  (c)(1) amended...........................................55453
416.1545  Introductory text revised................................24132
416.1550  (a), (d) and (e)(2) revised; (f) amended.................24132
416.1560  Removed..................................................24132
416.1565  (a) through (n) redesignated as (b) through (o); new (a) 
        added; new (b)(1), (c) and (e) revised.....................24132
416.1570  (a)(3) revised...........................................24132
416.1576  Added....................................................24132
416.1590  (e) revised..............................................24133
416.1599  (c) and (e) revised......................................24133
416.1605  Removed..................................................55075
416.1615  (a)(1) and (4) revised...................................55075
416.1618  (a), (b) introductory text, (15), (d)(2) and (3) 
        introductory text revised; (b)(16) redesignated as 
        (b)(17); new (b)(16) added.................................55075
    (d)(2) corrected...............................................61287
416.1901  (a) revised..............................................19262
416.1902  Amended..................................................19262
    Corrected......................................................25446
416.1906  (a) revised..............................................19262
416.2001--416.2098 (Subpart T)  Authority citation revised.........55453
416.2030  (a)(2) revised...........................................41455
416.2040  (b) removed; (c) redesignated as (b).....................41455
416.2096  (a)(1)(i), (ii), (iii) and (2) added.....................55453
422.104  Revised...................................................41790
    Technical correction...........................................50157

                                  1992

20 CFR
                                                                   57 FR
                                                                    Page
Chapter III
401.600  (b)(2)(iii) corrected.......................................956
404  Technical correction..........................................24308
404.110  (d)(1) revised............................................23156
404.111  (c) amended; (d) added....................................23157
404.101--404.146 (Subpart B)  Appendix amended.....................44096
404.211  (c) revised................................................1381
404.213  (d)(1) introductory text and (e)(5) revised...............22429
404.241  (a) revised; (c)(1)(v) and (vi) added.....................23157
404.201--404.290 (Subpart C)  Appendix IV amended..................22429
    Appendix I amended; Appendixes II and IV revised...............44096
    Appendixes V and VII amended; Appendix VI revised..............44097
    Appendixes II, V and VII corrected.............................45878
404.301--404.395 (Subpart D)  Authority citation revised....3938, 21598, 
                                                                   30119
404.315  (d) revised...............................................30119
404.335  (b)(2), (3) and (c)(2) amended; (c) introductory text and 
        (1) revised; (b)(4) and (c)(3) added.......................30119
404.336  (b)(2), (3) and (c)(2) amended; (c) introductory text and 
        (1) revised; (b)(4) and (c)(3) added.......................30119
404.362  (c)(1)(i) revised; (c)(1)(ii) removed; (c)(1)(iii) 
        redesignated as (c)(1)(ii) and republished..................3938
404.381  (a) revised...............................................21598
404.429  (c)(1) table amended......................................44097
    (c)(1) and (3) revised.........................................59913
404.801--404.831 (Subpart I)  Authority citation revised...........54919
404.810  Revised...................................................54919
404.811  Added.....................................................54919
404.822  (e)(5) revised............................................21600
404.900--404.999d (Subpart J)  Authority citation revised..........23056
404.903  (q) added.................................................23057
404.1001--404.1096 (Subpart K)  Authority citation revised........44098, 
                                                                   59910
404.1015  (a)(1) removed; (a)(2) redesignated as (a)(1) and 
        revised; new (a)(2) added; (a)(3) and (a)(4) introductory 
        text revised...............................................59913
404.1018b  Revised.................................................59913
404.1019  (a) revised..............................................59913
404.1020  (a)(3) and (4) added.....................................59910
    (b) redesignated as (c); (a)(2), new (c)(4)(ii)(B) and (iv)(B) 
revised; new (b) added.............................................59914
404.1021  (c) added................................................59914
404.1022  (d) added................................................59914
404.1047  Table amended............................................44098
404.1048  Heading, (a) and (c) revised..............................1382
404.1055  Revised..................................................59914

[[Page 1055]]

404.1058  (c)(1) revised; (c)(2) introductory text and (c)(4) 
        added......................................................59914
404.1073  (b)(1) revised; (b)(2) redesignated as (b)(3); new 
        (b)(2) added...............................................59910
404.1096  Table amended............................................44098
404.1200--404.1299 (Subpart M)  Authority citation revised.........59911
404.1200  Heading revised; existing text designated as (a); new 
        (a) heading and (b) added..................................59911
404.1201  (a) revised..............................................59911
404.1209  (f) added................................................59911
404.1501--404.1599 (Subpart P)  Authority citation revised.........1383, 
                                                            30120, 61796
    Appendix 1 amended..........23946, 23947, 24187, 30121, 57666, 61796
404.1501  (i) revised..............................................30120
404.1505  (a) and (b) amended......................................30120
404.1511  Revised..................................................30120
404.1520a  (c)(3) revised..........................................30120
404.1560  (a) revised..............................................30120
404.1577  Revised..................................................30120
404.1578  Revised..................................................30121
404.1579  (a) redesignated in part as (a)(2) and amended; (a)(1) 
        added......................................................30121
404.1594  (a) revised..............................................30121
404.1597a  (b)(3)(iii) and (h)(2)(iii) removed; (b)(1), (3)(ii) 
        and (h)(2)(ii) revised......................................1383
404.1501--404.1599
404.2040a  Added...................................................23057
416  Technical correction..........................................46431
416.640a  Added....................................................23057
    (g)(4) corrected...............................................27091
416.901--416.1094 (Subpart I)  Authority citation revised..........53853
416.931  Amended...................................................53853
416.932  Introductory text and (b) revised.........................53853
416.994  (b)(4)(ii) revised........................................10287
416.1100--416.1182 (Subpart K)  Authority citation revised.........1384, 
                                                     48562, 53850, 55088
      Appendix amended......................................53851, 55088
416.1103  (b)(1) amended...........................................53850
416.1124  (c)(15) added.............................................1384
    (c)(5) amended.................................................53850
416.1142  (a)(4) and (7) revised...................................53850
416.1150  Revised..................................................53850
416.1165  Heading, (d) and (h) revised.............................48562
    Regulation at 57 FR 48562 effective date corrected.............52827
416.1170--416.1171  Undesignated center heading added..............53851
416.1201--416.1266 (Subpart L)  Authority citation revised........53851, 
                                                                   55089
416.1201  (a)(3) revised...........................................35461
    (b) revised....................................................55089
416.1231  (a)(2) revised; (a)(3) redesignated as (4); new (a)(3) 
        added.......................................................1384
416.1236  (a)(14) through (18) added...............................53851
    (a)(19) and (20) added.........................................55089
416.1237  Revised..................................................53852
416.1403  (a)(11) added............................................23058
422.101--422.140 (Subpart B)  Authority citation revised...........54919
422.125  (a) and (b) revised; (c) and (d) removed; (e) through (h) 
        redesignated as (c) through (f); new (c) revised...........54919

                                  1993

20 CFR
                                                                   58 FR
                                                                    Page
Chapter III
404.305  (a) revised...............................................64888
404.331  (a)(1) revised............................................64891
404.332  (b)(6) revised............................................64891
404.336  (a)(1) revised............................................64891
404.337  (b)(3) removed; (b)(4) redesignated as (b)(3).............64891
404.340  (a) introductory text revised.............................64891
404.341  (b)(4) removed; (b)(5) redesignated as (b)(4); (c) 
        amended....................................................64891
404.346  (b) revised...............................................64892
404.401a  Amended; heading revised.................................64883
404.403  (a)(3) and (4) added......................................64892
404.464  (a) and (c) revised.......................................64889
404.611  (b) revised...............................................60381
404.1001--404.1096 (Subpart K)  Authority citation revised.........64889
404.1039  Undesignated center heading and section added............64889
404.1068  (f) revised..............................................64889
404.1075  (b) and (d) revised; (e) added...........................64890
404.1501--404.1599 (Subpart P)  Authority citation revised........44445, 
                                                            64123, 64883
    Authority citation corrected...................................65243

[[Page 1056]]

404.1592a  (a) amended.............................................64883
404.1501--404.1599 (Subpart P)  appendix 1 amended.........31907, 36051, 
                                36052, 36056, 36134, 44445, 52359, 64123
404.1706  Added....................................................64886
416  Technical correction...................................49431, 49432
416.202  (b) revised................................................4897
416.204  (c)(1)(ii) and (2)(ii) revised............................64893
416.210  (b) revised...............................................63889
416.215  Added......................................................4897
    (b)(2) corrected................................................9597
416.340  (d)(2) revised............................................52912
416.345  (e)(2) revised............................................52912
416.414  (a) introductory text and (2) revised.....................64894
416.533  Amended...................................................52912
416.536  Revised...................................................52912
416.537  (b)(2) revised............................................52912
416.538  Revised...................................................52912
416.542  Heading and (b) revised; (c) added........................52913
416.543  Revised...................................................52913
416.902  Amended...................................................47577
416.903  (f) added.................................................47577
416.913  (c)(3) added; (e)(2) and (3) revised......................47577
416.916  Revised...................................................47577
416.924  Revised; eff. to 9-9-97...................................47577
416.924a  Revised; eff. to 9-9-97..................................47578
416.924b  Revised; eff. to 9-9-97..................................47580
416.924c  Revised; eff. to 9-9-97..................................47581
416.924d  Revised; eff. to 9-9-97..................................47582
416.924e  Revised; eff. to 9-9-97..................................47584
416.926a  (b)(3), (c) and (d) revised; eff. to 9-9-97..............47586
    (d)(3) and (12) revised........................................52367
416.928  (a) revised...............................................47586
416.933  Revised...................................................36063
416.994a  (b)(5), (f)(1) and (2) amended; (d)(2) revised; eff. to 
        9-9-97.....................................................47586
416.1015  (e), (f) and (g) redesignated as (f), (g) and (h); new 
        (e) added..................................................47587
416.1111  (c) removed; (d) and (e) redesignated as new (c) and (d)
                                                                   63889
416.1112  (c)(1) through (8) redesignated as (c)(2) through (9); 
        new (c)(1) added; new (c)(6) amended.......................63889
416.1124  (c)(13), (14) and (15) amended; (c)(16) added............63888
416.1140  (a)(1) amended...........................................63888
416.1161  (a)(14), (17) and (18) amended; (a)(19) added............63888
    (a)(20) added..................................................63890
416.1210  (h), (l), (m) and (n) amended; (o) added.................63890
416.1235  Added....................................................63890
416.1242  (a) revised..............................................60105
416.1402  (k) and (l) amended; (m) added...........................52913
416.1457  (c)(4) revised...........................................52913
416.1471  (b) revised..............................................52914
416.1506  Added....................................................64886
416.1600--416.1618 (Subpart P)  Authority citation revised.........41182
416.1619  Added....................................................41182
422.601--422.607 (Subpart G)  Added................................52916

                                  1994

20 CFR
                                                                   59 FR
                                                                    Page
Chapter III
404.335  (a)(4) revised............................................14747
404.422  (e) introductory text amended..............................1633
404.454  (a) introductory text, (7) and (8) amended; (a)(9) added 
                                                                    1634
404.507  Introductory text amended..................................1634
404.510  Heading and introductory text revised; (n) amended.........1634
404.511  Heading and (b) revised....................................1634
404.612  (g) redesignated as (h); new (g) added....................44923
404.614  (a) revised...............................................44923
404.615  (d) added.................................................44923
404.633  Undesignated center heading and section added.............44924
404.900--404.999d (Subpart J)  Authority citation revised....1634, 44925
404.902  (t) and (u) amended; (v) added............................44925
404.903  (l) through (q) amended; (r) added........................44925
404.911  (a)(3) amended; (a)(4) added; (b)(9) revised...............1634

[[Page 1057]]

404.936  (d)(7) revised.............................................1634
404.957  (b)(1) and (2) redesignated as (b)(1)(i) and (ii); new 
        (b)(2) added................................................1634
404.987  Revised....................................................8535
404.988  (c)(1) revised.............................................1635
404.999c  (c) introductory text amended; (d)(3) redesignated as 
        (d)(4); new (d)(3) added....................................8532
404.1501--404.1599 (Subpart P)  Authority  citation revised...671, 1635, 
                                                                   41975
    Appendix 1 corrected...........................................30389
    Appendix 1 amended.............................................41975
404.1518  (a) amended...............................................1635
404.1530  (c) introductory text revised.............................1635
404.1579  Heading, (e)(1) and (2) revised...........................1635
404.1586  (d) revised...............................................1635
404.1594  Heading, (e)(1) and (2) revised...........................1635
404.1597a  (j)(3) amended...........................................1635
404.1501--404.1599 (Subpart P)  appendix 1  amended......671, 6497, 6501
    Appendix 1  corrected.....................................1275, 1416
404.2102  (c) through (n) redesignated as (d) through (o); new (c) 
        added; (b), new (e) and new (l) revised....................11912
404.2103  Amended..................................................11912
404.2104  Revised; eff. in part 10-1-94............................11912
404.2106  Added....................................................11914
404.2108  (b) through (f) redesignated as (c) through (g); new (b) 
        added; new (d) and new (f) revised.........................11914
404.2109  (c) revised; (f) amended; (g) redesignated as (h); new 
        (g) added..................................................11914
404.2111  Introductory text, (a)(1), (2) and (b)(1) introductory 
        text revised...............................................11914
404.2113  Revised..................................................11915
404.2114  Revised..................................................11915
404.2117  Introductory text, (b) and (c) revised...................11915
404.2121  Revised; eff. 10-1-94....................................11916
416.200--416.269 (Subpart B)  Authority citation revised...........41403
416.210  (e)(2)  introductory text revised..........................1635
416.215  (a) revised...............................................41400
416.260  Undesignated center heading and section revised...........41403
416.261--416.266  Undesignated center heading removed..............41403
416.261  Amended...................................................41403
416.262  Introductory text, (a), (b) and (d) revised...............41404
416.264  Revised...................................................41404
416.265  Heading, introductory text, (b) and (d) revised...........41404
    (d) corrected..................................................49291
416.267--416.269  Undesignated center heading removed..............41404
416.268  Revised...................................................41404
416.269  Revised...................................................41404
    (b)(1) corrected...............................................49291
416.310  (d) revised...............................................44926
416.325  (b)(3) added..............................................44926
416.351  Undesignated center heading and section added.............44926
416.501--416.571 (Subpart E)  Authority citation revised............1636
416.552  Introductory text amended..................................1636
416.556  (b) revised................................................1636
416.732  Revised....................................................1636
416.901--416.998 (Subpart I)  Authority citation revised............1636
416.918  (a) amended................................................1636
416.930  (c) introductory text revised..............................1636
416.986  (c) revised................................................1636
416.994  Heading, (b)(4)(i) and (ii) revised........................1636
416.994a  Heading,  (g)(1) and (2) revised..........................1637
416.996  (g)(2) amended.............................................1637
416.1100--416.1182 (Subpart K)  appendix amended....................8538
    Authority citation revised.....................................41405
416.1103  (a)(7) added.............................................33907
416.1110  (e) added................................................43471
416.1111  (e) added................................................43471
416.1112  (c)(6) revised...........................................41405
416.1121  (c) revised..............................................43471
416.1123  (e) revised..............................................59364
416.1201  (b) revised..............................................27988
416.1208  Added....................................................27989
416.1212  (d) redesignated as (d)(1); (d)(2), (3), (e), (f) and 
        (g) added..................................................43285
416.1210  (i)  revised..............................................8538
416.1232  (b) revised; interim.....................................12545
416.1234  Revised...................................................8538

[[Page 1058]]

416.1236  (a)(3) and (10) revised; (a)(12) added....................8538
416.1400--416.1499 (Subpart N)  Authority citation revised...8532, 41405
416.1401  Amended..................................................43038
416.1402  (a) and (b) revised; (h) removed; (i) through (m) 
        redesignated as (h) through (l)............................41405
    (k) and (l) amended; (n) added.................................43039
    (l) amended; (m) added.........................................44928
416.1403  (a)(13) and (14) added...................................41405
    (a)(15), (16) and (b)(3) added.................................43039
    (a)(2) and (7) through (11) amended; (a)(12) added.............44928
416.1411  (a)(2) and (3) amended; (a)(4) added; (b)(9) revised......1637
416.1436  (d)(7) revised............................................1637
416.1457  (b)(1)  and (2) redesignated as (b)(1)(i) and (ii); new 
        (b)(2) added................................................1637
416.1487  Revised...................................................8535
416.1488  (c) revised...............................................1637
416.1498  (c) introductory text amended; (d)(3) redesignated as 
        (d)(4); new (d)(3) added....................................8532
416.1715  (a) revised...............................................1637
416.2202  (c) through (n) redesignated as (d) through (o); new (c) 
        added; (b), new (e) and new (l) revised....................11916
416.2203  Amended............................................1637, 11916
416.2204  Revised; eff. in part 10-1-94............................11917
416.2206  Added....................................................11918
416.2208  (b) through (f) redesignated as (c) through (g); new (b) 
        added; new (d) and new (f) revised.........................11918
416.2209  (c) revised; (f) amended; (g) redesignated as (h); new 
        (g) added..................................................11918
416.2211  Introductory text, (a)(1), (2) and (b)(1) introductory 
        text revised...............................................11918
416.2213  Revised..................................................11919
416.2214  Revised..................................................11919
416.2217  Introductory text, (b) and (c) revised...................11919
416.2221  Revised; eff. 10-1-94....................................11920

                                  1995

20 CFR
                                                                   60 FR
                                                                    Page
Chapter III
Chapter III  Heading revised.......................................18992
404  Technical correction..........................................10150
404.213  (a)(3) amended............................................17444
    (a)(3) amended; (f) introductory text revised; (e)(7), (8) and 
(9) added..........................................................56513
404.301--404.395 (Subpart D)  Authority citation revised............8145
404.315  Introductory text and (a) through (d) redesignated as (a) 
        introductory text and (1) through (4); new (a) heading and 
        new (b) added; interim......................................8145
404.316  (e) and (f) added; interim.................................8145
404.321  (d) added; interim.........................................8145
404.332  (b)(5) amended; interim....................................8145
404.335  (c)(2) and (3) amended; (c)(4) added; interim..............8145
404.337  (b)(2) amended; interim....................................8146
404.350  Introductory text and (a) through (e) redesignated as (a) 
        introductory text and (1) through (5); new (a) heading and 
        new (b) added; interim......................................8146
404.352  (b)(3) amended; (c) and (d) redesignated as (d) and (e); 
        new (c) added; interim......................................8146
404.401--404.469 (Subpart E)  Authority citation revised............8146
404.402  (a) introductory text revised; interim.....................8146
404.408a  (b)(5) added.............................................56513
404.452  (f)(1) amended............................................56513
404.460  (c)(3) amended............................................17445
404.470  Added; interim.............................................8146
404.480  Added; interim.............................................8146
404.503  (b)(3) and (6) revised....................................17445
404.510  (l) revised...............................................17445
404.721  (b) revised...............................................19164
404.722  Added.....................................................19165
404.900--404.999d (Subpart J)  Authority citation revised....8147, 34131
404.902  (o) revised; (p) through (v) redesignated as (q) through 
        (w); new (p) added; interim.................................8147
404.906  Revised...................................................20026

[[Page 1059]]

404.942  Added.....................................................34131
404.943  Added.....................................................47475
404.988  (c)(4) introductory text and (i) revised..................19165
404.1220  (a) and (e) revised......................................42433
404.1501--404.1599 (Subpart P)  Authority citation revised...8147, 43710
404.1535  Added; interim............................................8147
404.1536  Added; interim............................................8147
404.1537  Added; interim............................................8148
404.1538  Added; interim............................................8148
404.1539  Added; interim............................................8148
404.1540  Added; interim............................................8148
404.1541  Added; interim............................................8148
404.1501--404.1599 (Subpart P)  Appendix 1 amended..........43710, 62330
    Appendix 1 corrected...........................................53267
416.120  (c)(14) revised...........................................16374
416.202  (e) redesignated as (f); new (e) added; interim............8149
416.213  Revised....................................................8149
416.262  (c) amended; (d) redesignated as (e); new (d) added; 
        interim.....................................................8149
416.265  (a) revised; interim.......................................8149
416.305  (b)(1) revised............................................16374
416.412  Revised...................................................16374
416.414  (b)(2) heading and (3) heading revised....................16374
416.415  Added.......................................................361
416.430  Revised...................................................16375
416.432  Revised...................................................16375
416.501--416.571 (Subpart E)  Authority citation revised............8149
    Authority citation corrected...................................10150
416.532  (e) removed...............................................16375
416.535  (b) and (c) redesignated as (d) and (e); new (b) added; 
        interim.....................................................8149
416.542  (a) revised; interim.......................................8149
416.544  Added; interim.............................................8150
416.554  Revised...................................................16375
416.558  (a) revised; (c) added; interim............................8150
416.601  (b)(1) amended; interim....................................8150
416.610  (a)(3) revised; interim....................................8150
416.901--416.998 (Subpart I)  Authority citation revised............8150
416.935  Revised; interim...........................................8151
416.936  Revised; interim...........................................8151
416.937  Revised; interim...........................................8151
416.938  Revised; interim...........................................8151
416.939  Revised; interim...........................................8151
416.940  Added; interim.............................................8151
416.941  Added; interim.............................................8152
416.1101  Amended..................................................16375
416.1123  (d) revised; interim......................................8152
416.1130  (c) revised..............................................16375
416.1147  Revised..................................................16375
416.1148  Revised....................................................361
416.1165  Introductory text revised; (i) added.......................361
416.1202  (b) revised................................................361
416.1326  Revised; interim..........................................8152
416.1331  (c), (d) and (e) added; interim...........................8152
416.1335  Revised; interim..........................................8153
416.1400--416.1499 (Subpart N)  Authority citation revised.........34132
416.1402  (d) revised; interim......................................8153
    Corrected; (m) correctly added.................................14215
416.1406  Revised..................................................20028
416.1442  Added....................................................34132
416.1443  Added....................................................47476
416.1701--416.1725 (Subpart Q)  Authority citation revised..........8153
416.1725  Revised; interim..........................................8153
416.1801  (c) amended..............................................16376
416.1802  (b) revised..............................................16376
416.1806  Revised..................................................16376
416.1811  Removed..................................................16376
416.1830  (a) revised..............................................16376
416.1832  (c) and (d) revised......................................16376
422.101--422.140 (Subpart B)  Authority citation revised....32446, 42433
422.107  (c) amended; interim......................................32446
422.112  Revised...................................................42433
422.114  Added.....................................................42433
422.115  Removed...................................................42434
422.120  Revised...................................................42434
422.122  Added.....................................................42434
422.205  (c) revised................................................7120
423  Added.........................................................18992
498  Added.........................................................58226

                                  1996

20 CFR
                                                                   61 FR
                                                                    Page
Chapter III
401  Authority citation revised.....................................5940
401.100--401.125 (Subpart A)  Authority citation removed............5940
401.200--401.220 (Subpart B)  Authority citation removed............5940
401.300--401.350 (Subpart C)  Authority citation removed............5940

[[Page 1060]]

401.400--401.420 (Subpart D)  Authority citation removed............5940
401.500--401.510 (Subpart E)  Authority citation removed............5940
401.600 (Subpart F)  Authority citation removed.....................5940
404.1--404.3 (Subpart A)  Authority citation revised................5940
404.2  (a)(2) through (6) removed; (a)(7) redesignated as (a)(2) 
                                                                   41330
404.3  (a) removed; (b) and (c) redesignated as (a) and (b)........41330
404.101--404.146 (Subpart B)  Authority citation revised............5940
404.201--404.290 (Subpart C)  Authority citation revised............5940
404.301--404.395 (Subpart D)  Authority citation revised............5941
404.347  Revised...................................................41330
404.350  (a)(5) revised............................................38363
404.351  (a) revised...............................................38363
404.352  (b)(1) amended............................................38363
404.353  (a) amended...............................................38363
404.367  Introductory text amended; (c), (d) and (e) redesignated 
        as (d), (e) and (f); (a), (b) and new (f) revised; new (c) 
        added......................................................38363
404.369  Removed...................................................38363
404.390  Amended...................................................41330
404.392  Heading and (a) introductory text revised.................41330
404.393  Removed...................................................41330
404.394  Removed...................................................41330
404.395  Removed...................................................41330
404.401--404.480 (Subpart E)  Authority citation revised............5941
404.501--404.526 (Subpart F)  Authority citation revised............5941
404.502a  Revised..................................................56131
404.506  Revised...................................................56131
404.601--404.641 (Subpart G)  Authority citation revised............5941
404.612  (e) removed; (f), (g) and (h) redesignated as (e), (f) 
        and (g)....................................................41330
404.615  (b) removed; (c) and (d) redesignated as (b) and (c)......41330
404.701--404.780 (Subpart H)  Authority citation revised............5941
404.765  Removed...................................................41330
404.801--404.831 (Subpart I)  Authority citation revised............5941
404.811  Revised...................................................18076
404.812  Added.....................................................18077
404.900--404.999d (Subpart J)  Authority citation revised...........5941
404.907  Revised...................................................56132
404.930  (a)(4) and (5) amended; (a)(6) and (7) added..............56132
404.1001--404.1096 (Subpart K)  Authority citation revised..........5941
404.1001  (d)(2) revised...........................................38365
404.1003  Amended..................................................38365
404.1004  (a) introductory text revised; (a)(5) added..............38365
404.1012  Amended..................................................38365
404.1018  (g) redesignated as (h); new (g) added...................38365
404.1018b  (c)(1)(v) revised.......................................38366
404.1020  (a)(3)(iv) revised.......................................38366
404.1034  (a) introductory text amended; (c) redesignated as (d); 
        new (c) added; new (d) revised.............................38366
404.1036  Revised..................................................38366
404.1038  Added....................................................38366
404.1042  (c)(2) revised...........................................38366
404.1055  (a), (b) heading and (1) revised; (c)(1) amended.........38367
404.1056  (a)(6) revised...........................................38367
404.1057  (a)(1), (2) and (3) revised; (a)(4) amended..............38367
404.1068  (d) revised..............................................38367
404.1200--404.1299 (Subpart M)  Authority citation revised..........5941
404.1206  (a) introductory text, (6) and (7) revised; (a)(8) 
        added; (f)(2) amended......................................38367
404.1210  (e) revised..............................................38367
404.1211  (d) revised..............................................38368
404.1212  Revised..................................................38368
404.1301--404.1371 (Subpart N)  Authority citation revised..........5941
404.1401--404.1413 (Subpart O)  Authority citation revised..........5941
404.1501--404.1599 (Subpart P)  Authority citation revised..........5941
    Appendix 1 amended............................................28047,
                                                                   64616
404.1601--404.1694 (Subpart Q)  Authority citation revised..........5941
404.1615  (c)(1) amended; (c)(2) redesignated as (c)(3); new 
        (c)(2) added; 4-18-96......................................11135
404.1700--404.1799 (Subpart R)  Authority citation revised..........5941
404.1800--404.1825 (Subpart S)  Authority citation revised..........5941

[[Page 1061]]

404.1901--404.1930 (Subpart T)  Authority citation revised..........5941
404.2001--404.2065 (Subpart U)  Authority citation revised..........5941
404.2101--404.2127 (Subpart V)  Authority citation revised..........5941
404.2113  (c) amended..............................................31025
404.2115  (a)(3) and (b) revised...................................31025
404.2116  (b)(2) and (c)(2) revised................................31025
410.501--410.591 (Subpart E)  Authority citation revised...........56132
410.561  Revised...................................................56132
410.561a  Revised..................................................56132
410.601--410.699a (Subpart F)  Authority citation revised..........56133
410.623  Revised...................................................56133
410.630  Revised...................................................56133
416.101--416.121 (Subpart A)  Authority citation revised............5941
416.200--416.269 (Subpart B)  Authority citation revised......1712, 5941
416.202  (b)(4) revised; eff. 5-13-96..............................10277
416.210  (b) revised................................................1712
416.211  (a)(1) and (b) revised; eff. 5-13-96......................10277
416.212  Redesignated as 416.213; new 416.212 added; eff. 5-13-96 
                                                                   10277
416.213  Redesignated as 416.214; new 416.213 redesignated from 
        416.212; eff. 5-13-96......................................10277
416.214  Redesignated as 416.215; new 416.214 redesignated from 
        416.213; eff. 5-13-96......................................10277
416.215  Redesignated as 416.216; new 416.215 redesignated from 
        416.214; eff. 5-13-96......................................10277
416.216  Redesignated from 416.215; eff. 5-13-96...................10277
416.301--416.360 (Subpart C)  Authority citation revised............5941
416.401--416.435 (Subpart D)  Authority citation revised............5942
416.410  Revised; eff. 5-13-96.....................................10278
416.412  Revised; eff. 5-13-96.....................................10278
416.413  Revised; eff. 5-13-96.....................................10278
416.414  (a) introductory text revised; eff. 5-13-96...............10278
416.501--416.571 (Subpart E)  Authority citation revised............5942
416.535  (a) amended; (c) added; interim...........................67205
416.538  (d) redesignated as (e); new (d) added; interim...........67205
416.542  (a)(1) amended; (a)(3) added; interim.....................67206
416.545  Added; interim............................................67206
416.546  Added; interim............................................67206
416.570  Amended; interim..........................................67206
416.601--416.665 (Subpart F)  Authority citation revised............5942
416.640  (b) and (c) revised; eff. 5-13-96.........................10278
    (e) added; interim.............................................67206
416.701--416.732 (Subpart G)  Authority citation revised............5942
416.801--416.806 (Subpart H)  Authority citation revised............5942
416.901--416.998 (Subpart I)  Authority citation revised............5942
416.1001--416.1094 (Subpart J)  Authority citation revised..........5942
416.1015  (c)(1) amended; (c)(2) redesignated as (c)(3); new 
        (c)(2) added; 4-18-96......................................11136
416.1100--416.1182 (Subpart K)  Authority citation revised....1712, 5942
416.1124  (c)(9), (15) and (16) amended; (c)(17) and (18) added.....1712
    (c)(7) and (9) revised; (c)(17) and (18) amended; (c)(19) 
added..............................................................49964
    (c)(18) and (19) amended; (c)(20) added; interim...............67207
416.1147  (b) and (d) revised; eff. 5-13-96........................10279
416.1149  (a) and (c)(1) revised; eff. 5-13-96.....................10279
416.1161  (a)(20) amended; (a)(21) and (22) added...................1712
    (a)(12) revised; (a)(21) and (22) amended; (a)(23), (24) and 
(25) added.........................................................49964
416.1167  (a) revised; eff. 5-13-96................................10280
416.1201--416.1266 (Subpart L)  Authority citation revised.........1712,
                                                              5942, 5944
416.1204  (a) revised...............................................1712
416.1210  (n) and (o) amended; (p) and (q) added....................1712
    (p) and (q) amended; (r) added; interim........................67207
416.1229  Added.....................................................1712
416.1232  (b) revised; (c) redesignated as (d); new (c) added.......5944
416.1239  Added.....................................................1712

[[Page 1062]]

416.1247  Added; interim...........................................67207
416.1321--416.1338 (Subpart M)  Authority citation revised..........5942
416.1500--416.1599 (Subpart O)  Authority citation revised..........5942
416.1600--416.1619 (Subpart P)  Authority citation revised..........5942
416.1615  (a)(1) revised...........................................56134
416.1701--416.1725 (Subpart Q)  Authority citation revised..........5942
416.1801--416.1881 (Subpart R)  Authority citation revised..........5942
416.1901--416.1922 (Subpart S)  Authority citation revised..........5942
416.2001--416.2098 (Subpart T)  Authority citation revised..........5942
416.2040  (a) revised; (c) added; eff. 5-13-96.....................10280
416.2101--416.2176 (Subpart U)  Authority citation revised..........5942
416.2201--416.2227 (Subpart V)  Authority citation revised...5942, 31026
416.2201  Introductory text and (b) revised........................31026
416.2203  Amended..................................................31026
416.2209  (b) and (c) amended......................................31026
416.2212  Amended; heading revised.................................31026
416.2213  (c) amended..............................................31026
416.2215  Revised..................................................31026
416.2216  (b)(2) and (c)(2) revised................................31026
416.2217  Introductory text amended................................31027
422  Authority citation removed.....................................5942
422.1--422.5 (Subpart A)  Authority citation added..................5942
422.101--422.140 (Subpart B)  Authority citation revised............5942
422.125  (a) and (b) revised.......................................18078
422.201--422.210 (Subpart C)  Authority citation revised............5942
422.401--422.449 (Subpart E)  Authority citation revised............5943
422.501--422.527 (Subpart F)  Authority citation revised............5943
422.601--422.607 (Subpart G)  Authority citation revised............5943
423  Authority citation revised.....................................5943
498  Authority citation revised....................................18079
498.100  (a) and (b) introductory text revised; (b)(1) added.......18079
498.101  Amended...................................................18079
498.102  Heading revised; (a) added................................18079
498.103  (a) added.................................................18080
498.104  Added.....................................................18080
498.106  Heading revised; (a) added................................18080
498.108  Revised...................................................18080
498.109  Revised...................................................18080
498.110  Revised...................................................18080
498.114  Added.....................................................18080
498.127  Revised...................................................18080
498.128  Heading and (a) revised; (b), (d) and (e) added...........18080
498.129  Added.....................................................18081
498.132  Revised...................................................18081
498.201  Added.....................................................65468
498.202  Added.....................................................65468
498.203  Added.....................................................65469
498.204  Added.....................................................65469
498.205  Added.....................................................65469
498.206  Added.....................................................65469
498.207  Added.....................................................65469
498.208  Added.....................................................65470
498.209  Added.....................................................65470
498.210  Added.....................................................65470
498.211  Added.....................................................65470
498.212  Added.....................................................65470
498.213  Added.....................................................65470
498.214  Added.....................................................65471
498.215  Added.....................................................65471
498.216  Added.....................................................65471
498.217  Added.....................................................65471
498.218  Added.....................................................65471
498.219  Added.....................................................65471
498.220  Added.....................................................65472
498.221  Added.....................................................65472
498.222  Added.....................................................65472
498.223  Added.....................................................65472
498.224  Added.....................................................65472

                                  1997

   (Regulations published from January 1, 1997, through April 1, 1997)

20 CFR
                                                                   62 FR
                                                                    Page
Chapter III
401  Revised........................................................4143
402  Added..........................................................4154
404.903  (q) and (r) amended; (s) added; eff. 5-1-97................6120
404.1501--404.1599 (Subpart P)  Authority citation revised..........6418

[[Page 1063]]

  Appendix 1 amended; interim; eff. 4-14-97........................6418,